BARQ&A FOR THE PAST 10 YEARS CIVIL LAW 2020 Edition DEAN VIVIANA MARTIN - PAGUIRIGAN eon. iversy tthe Eo! Callege et Lew Masa2008 BAR EXAMINATION 1 An Rivera had 6 husband, a Filpino eiizen like her, who was among the passengers on board a commercial jet plane which crashed in the Allanfic Ocean ten (10) years earlier and had never been heard of ever since, Believing that her husband had died, Ana martied Adol Cruz Slaedler, a divorced German national born af 2 German father and a Fipino mother residing in Stuttgart. To avoid being required to submit the required ceriicate of capacity to marty from the Gorman Embassy In Manila, Adolf stated in the application for marriage license thai he was @ Flipino cifizen. With the marriage license stating that Adolf was « Filipino, the couple got married In a ceremony officiated by the Parish Pries! of Colombe, Laguna in a beach in Nasugbu, Balangas, os the local parish priest refused to solemnize marriages except in his church. Is he mariage valid? Explain fully. (5%) PROPOSED ANSWER: The mariage between Ana and Adolf is not voli. The facts state that Ana hos @ previous morriage with her Fiipino husband andi cithough the latter has been missing for the last ten years ‘Ang did not toke any steps to have her husbond declared presumplively decd before contractinga BAR Q&A FOR THE PAST 10 YEARS the subsequent mariage with Adolf. he law pro- Vides that a mariage contracted by ony person uring the subsistence of a previous mariage shall be null and void, unless before the celebra- tion of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present hod @ welkfounded belie! that the cbsent spouse was cleady dead. For purposes of contracting the subsequent mar Flage, the low further requires thot the spouse presen! must insite @ summary preceeding for the declaration of presumptive death of the ab- sentee, without prejudice fo the effect or reap- pearance of the absent spouse, Arlcle 41, Fo- mrily Code} Thus, the subsequent marriage con- tracted by Ano without fist securing the declara: tion of presumptive death of her husband shall ‘be considered void for being bigomous. The fact that the solemnizing officer celebroted the mar- flage outside of hs teritercl jursaiction is imma- terial because such iregulariy wil not affect ine valicty of the mariage. Rather, itis the forlure of ‘Ang fo secure the declaration of presumpiive death wrich wi render her martiage void, At age 18, Maifan found out that she was pregnant. She insured her own life and named her unborn child as her sole beneficiary. When she was clready due fo give bith, she ond her boyfriend Pietro, the father of her unboin child, eee 2008 BAR EXAMINATION ‘were kidnapped in ¢ resort in Bataan where they were vacationing. The millary gave chase and ‘tier one week, they were found In an abon doned hut in Cavite. Marian and Pietro were hacked with bolos. Marian ond the baby she de liveted were found dead, with the baby’s um- bilical cord already cut. Piel survived, 1) Can Marian's baby be the beneficiary of the Insurance taken on the life of the mother? PROPOSED ANSWER: Were it not forthe untimely death of Marion's booby, it could hove been o Beneficiary of Marion's insurance benefit. A fetus, aihough as yet unborn, hos @ presumptive aersonaity for all Purposes favorable to it provided it be born Under the conattions specified in Article 41 of the Civil Code [aricle 40, Cis Code. Under Arce 41, @ fetus is considered bom itt is alive of the ime itis completely delvered from the mother’s womb. However, ifthe fetus hed an intra-uterine Ife of less than seven months, itis not deemec ‘bom if it dies within twenty-four hours after its complete delivery rom the maternal womb. b) Between Marian ond the baby, who is presumed fo have died ahead? (1%) PROPOSED ANSWER: Based on the facts, the Baby was a fullterm ‘one and has been completely delvered from the mother’s womb. Ifthe baby was lve ot the fimeBARGE A FORTHE PAST 10 YEARS fils separation from the mother's womb, itis fo be presumed that the baby is the one who died head based on the presumption established Under he Rules of Court particulary Section 3 fi, Rule 131 which provices thal whan Iwo persons perish in the same colamity, such as wreck, battle, or conflagration, andl its not shawn who ied fist, and there are no particuler citcumstar- Ces from which ican be infeed, the survivorship isdetemined from the probabiliies resulting fom the strength and the age of the sexes, and if one bbe under fifleen or over sity, and the other Be!- ween thase ages, the latier is deemed to have survived, Hence, the baby being uncer fifteen is presumed fo hove died ahead of Maren. <) Wil Pieto, as surviving biological father of the baby be entitled fo claim the proceeds of the Ife Insurance on the ife of Marian? (27%) PROPOSED ANSWER: No, Pietio wil not be entities to the process of the fe insurance of Marian, This s xo because: he is not the designcted beneficiary of the life insurance but ine baby. On the other hand, since the baby is eresumed fo have cied chead of Marian, did nol cequire any rights to the insu: ance proceeds which it could pass toils Biolog coal father, Pett. 2008 BAR EXAMINATION " Roderick and Faye were high school sweet- hearts. When Roderick wos 18 and Faye, 16 years ‘ld, they started fo live together as husband end wife without the benefit of marrage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the martiage, Roderick continued fo regularly visi Faye while Brad was away at work. During thelr mariage, Faye gave birth to baby gi, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick in one of theit heated arguments, Faye shot Brad to death. She lost no fime in manrying her true love Roderick, ‘without @ mariage license, claiming that they have been continuously cohabiting for more than 5 years. ©) Was the marriage of Roderick and Faye valid? (2%) PROPOSED ANSWER: No, the martioge belween Roderick ond Foye Is not veld, The law requires @ mariage license cs cone of the formal requisites of marriage absent which, the merrage wil be void ab ino. The fect ‘nat the parties executed an atidavit that they had been cohabiting for more than fve years wi nol cute the defect of the absence of the license because for the parlies 1o be exempt fom ine license on the ground of martel cohebitation,xR @ 2A FOR THE PAST 10 YEARS they must not be sutfering from any impediment fo marry each other during the cohabitation. In the cate presented, Faye end Roderick hed not ‘acivally lived together which all the more renders their affidavit of cohabitation irelevant. Even as suming that they cid cohabit with each other, the fact that Faye has a legat Impediment because of her exiting mariage with Brad wil not render tem exempt fom the license requiremen’ Hence, their mariage is void for fotal absence oF G formal requisite. b) What isthe fifation status of aiea? (27%) PROPOSED ANSWER: Loice is considered ¢ leatiimate child of Faye ‘and Brad, The law provides teat chien con- ceived or bom during the mariage of the po- rents ore legitimate [Article 164, Family Code). Since Laica was bom curing the union of Faye dnd Brad, she is considered c legitmate child of the spouses, ¢) Cen Leice bring en action fo Impugn her ‘own status on the ground that based on DNA results, Roderick i her biological father? (2%) PROPOSED ANSWER No, Laica cannot impugn her own legitimacy. The legitimacy of a chic con be impugned os a rule, only by the husband because it is the husband who stonds to be ridiculed in case it's 2008 BAR EXAIMINATON found or discovered thal the child bem to his wife Was not his chiid. Also, the period fo impugn le giimecy is relatively made short by law in order fo protect the chic and alter he lapse of one yecr. fwo yeoss, or three years fam the knowledge of beth of is recording in the civ register as provides by Atticle 170 of the Family Code, the slatus of the hid becomes fixed ond Unassalable (Tson vs Court of Appeok, 276 SCRA $82} ¢) Can Lies be legitimated by the marriage ‘of her biological parents? (132) PROPOSED ANSWER: No, since the legitimacy of Leica is no longer ‘open fo question, the issue af legitimation wil no longer be feasible even on the assumption tha’ she Is really the biological child ot Roderick ane! Faye. Secondly. on the assumption that Roderick Is really Laica's biological father, ne fact inot she was conceived when Faye has an impediment 10 momy, Roderick would not make legimation legally feasible because only chileren conceived ‘and bom outside of wodlock of parents, who ai the time of the conception of the former ware not suffering tom ny impediment moy be legitimated [Article 177, Family Code}, W. Gianna was born fo Andy and Aimee, who at the fime of Gianna's birth were not married fobana A FORTHE PAST 10 YEARS each other, While Andy was single at thet time, ‘Aimee was stil in the process of securing a juci- lal declaration of nulity on her manage to her ‘exchusband, Gionna’s birth certificate, which was signed by both Andy and Aimee, registered the Salus of Gianna as “legitimate”, her sumame artying thet of Andy's and that her parents were married fo each other. ) Can a judicial action for correction of en- tries in Gianna’s birth cerliicate be successtully tained to: 1) Change her status from “legitimate” to “Megttimate” (1%) PROPOSED ANSWER No, @ judicial action for correction of Gianna’s sfotus fom legitimate tollegiimate cannot be suc: Cessully mainlained, Ths isso because on action Of such nalure would 68 a collaieral attack on the la's legtimacy wrich Is nol permifted. Also, Gianna war bom af c fime when Amee was sti legally married to her husband since she wos sil in the process of securing a decree of rullly of her moriage at the ime of Gionna’s birh. Hence, Gianna is stil considered legiimote chid of ‘Aimee ond her legal husbend wno under the law i tgien the primary fight fo Impugn the legtiimacy of the child born to hs wife Ii) Change her sumame from thot of 's maiden surname? (1%) 2008 BAR EXAMINATION PROPOSED ANSWER: No, the action to change Gianno’s surname from that ef Andy's sumame to Aimae’s maiden sumame shall cls fol, Since Gianna was bem during the mariage of Aimee to her legol hus band, her status & deemed legiiimate ond she should have cared the sumame of Aimee's legal husband who is presumed her father, A change of surname trom that of Andy fo that o' ‘Aimee will be erroneous as it wil not be consis ‘ent with her status es c legiimate chil ») Instead of « judicial action, ean adminis incllve proceedings be brought for the purpose of making the above corrections? (275) PROPOSED ANSWER: No, cn administrative proceeding fo offect the chonges in status or surname isnot permitied under the provisions of Republic Act No. 9048 which aniy alows correction of typographical er ‘ors in the fist name end not a change in sur nome. The law does not also permit a change in stalvs from legitimate to legitimate to be done in cn administrative proceeding because these ‘re substontiol changes and not mere typoore: phical or nnocuous erors. <¢) Assuming that Aimee Is suecestful in dec- laring her former marriage void, and Andy and ‘Aimee subsequently martied each other, would Gionna be legitimated? (1%)PARQ. A FORTHE PAST 10 YEARS PROPOSED ANSWER: No. even if Andy and Almes subsequently get married atter Aimee secures a decree of ru ly, Gianna would not be legitimated for the fol: lowing reetons fist, she Is considared a legitimate Child of Aimee and the iatter's husband £0 lacit mation would not be an issue: secondly, even i Gianna'is@ biological chia of Andy and Aimee, the latter s suffering from on impediment to mar ry Andy at the fme of the conception of Gianna which would prevent the process of legtimation rom faking place. v. Despite several relationships with ifferent women, Andrew remained unmaried. His first relationship with Brenda produced a daughter, ‘Amy, new 20 years old. His second, with Carla produced two sons: Jon and Ryan. His third, with Donna, bore him two daughters: Vina ond Wilma, His fourth, with Elena, bore him no children though Elena has a daughler Jane, form a pre- vious relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy, now 18 years ‘old, whom they consider as thelr own. Sandy was ‘orphaned as a baby and was entrusted to them by the midwife who ofended to Sandy's birth. All the children, including Amy, now live with Andrew in his house, 2008 BAR EXAMINATION ©) Is there any legal obstacle to the legal ‘adoption of Amy by Andrew? To the legal edop- ion of Sandy by Andrew and Elena? (272) PROPOSED ANSWER Thete is no legal obstacle to the adoption of ‘Amy by bs biolosical father, Anotew, As a gene. ralrve, « person of lagal age may no longer be adopted. By way of exception, the lav allows the edoption of a child who is olready of iegal 190 If he or she hos been constantly heated os 1 chi by the adopting parent curing his or her minor, The fects state that Amy is living with Andrew, thus, even if she is already 20 years o'0, Andrew may legally adopt her. in addition, Amy is an llegtimate chid of the adopter Andrew ‘ond although she is cready of legal age, sne may be adopted by her illegitimate fether to foise her status to that of legiimacy, However, the adoption of Sandy by Andrew ‘and Elena is not possible becouse they are not legally maried. b) In his old age, can Andrew be legally eniiied to claim support form Amy, Jon, Ryen, Vina, Wilma ond Sandy assuming that all of them have the means fo support him? (1%) PROPOSED ANSWER: Yes, Ancew is legally entitled to claim sup. Poor! from Amy. Jon, Ryan. Vina, and Wime but ot from Sandy. Support is ofcined amongAR. A FOR THE PAST 10 YEARS clher between porents cnd their legitimate children ond the legiimate ond ileaitimate chi- {ren of the later (Aticie 195, Family Code). How ever, Andrew cannot claim support from Sandy because the latter is not his chid whether leglimate or ilegtimate, ond neither wos Sondy legaly adopted by Ancvew which would have created the bond similar to inat of legtimate aterrity and fiction between them to entite ‘Andrew to claim support trom Sond. ) Can Amy, Jon, Ryan, Vina, Wilma and Sandy legeily claim support form each other? (2%) PROPOSED ANSWER: ‘Amy, Jon. Ryan, Vina ond Wima being ile jimate brothers and sister are aso entitled fo Claim support from each ther because the law the law provides that brothers and sisters not eal imately related, whether full or halt-biood ore likewise bound to support each other to the full exient mentioned In Arlicie 194, excep! only when the need for support of the brother or ssi, being of age, i due a couse imautabie to the claimont's faut or negligence. (Aricle 196, Fam: ly Code) However, Amy, Jon, Ryn, Vine and \Wima cannot cleim supper trom Sandy and ihe latter cannot likewise claim suppod from the five because there is no blood relationship among them: 2008 BAR EXAMINATION ) Can Jon and Jane legally marry? (1%) PROPOSED ANSWER: Yes, Jon ond Jone can legally many be- cause they ore noi related to each other, Jon being the son of Ancrew with Carta, whiletione is the daughter of Andrew's fourth commer-aw wife, Elena with anather man, They ako do no! fall among the patties prohibited to marry eact ‘other by tearon of public policy. wt Alex died without a wil, leaving only an undeveloped and untitled ot in Taguig Cily, He Is survived by his wife and 4 children. His wife told the chiléren that she is waiving her share in the property, and allowed Bobby, the eldest son who ‘was obout fo get married, to construct his house: 1% of the lol, without however obtaining the con- sent of his siblings. Afler settlement of Alex’s es: fale ond partition emong the hel, i! was disco- vered that Bobby's house was constructed on the pottion allocated to his sister, Cathy, Cathy ‘asked Bobby fo demolish his house ond vacate the portion alloted to her. in lieu of demoliion. Bobby offered to purchase from Cathy the lol potion on which his house wat constucted. At that ime, the house was valued at P300,000 while the portion of the lo! on which the house wos constructed was valued at P350,000,BARGE A FORTHE PAST 10 YEARS 2} Can Cathy lawlully ask for demolition of Boboy's house? (372) PROPOSED ANSWER No, Cathy cannot ask for the demotion of the portion of Bcbby's house which encroached con her lot because Bobby is a bulléer in good faith. On the essumption that the lot left by Alexis Fis exclusive property, the lot Become subject of the co-ownership améng Alex's wife ond four children which they would hove divided equally Since the wile of Alex allowed Bobby to uid cn the V4 portion ofthe land, ils to be cssumed that he did so in good faith. Thus, Afticle 448 shal ‘opply. Under Aisle 448, the landowner on which ‘anything has been bull, planted or sown in good faith only has the following options: 1) 10 appro. priate the bullcing, planting or sowing ater paying indemnity to the builder or 2} to ask the Builder, planter or sewer to Quy the land it the value ‘hereotis not considerably higher than the building or the trees. Hence, Cathy as tne owner af tne land cannot ask for the demolition of the Portion of Bobby's house stancing or her land be: Cause ils not one of the options granted by low to the owner of the land if tne builder acted in 00d faith b) Can Bobby legally insist on purchasing the lena? (2%) 2008 BAR EXANINATION PROPOSED ANSWER: No, Bobby may likewite not Iegaly ins! on purchasing the land, The bulier in good faith is Not the one enliied fo exercite the option but ro: ther the owner of the lend on which the bull was consttucied. The option lies with the owner Of the land because his right is older and by the Principle of accession, the owner of the lan ‘owns whatever is built, planted, or sown on his land subject fo the righ's of the builder in good fait vu. Anthony bought © plece of untitied agricul ral land from Ber, Bert In turn, ecquited the pro- erty by forging Carlo’s signature in a deed of scle over the properly. Carlo had been in posses slon of the properly for 8 years, declared ifor fax purposes, end religiously pald all foxes due on the property. Anthony is not aware of the defect In Bets thle, but has been in actual physical pos session of the property from the fime ha bought It from Bert, who had never been in possession. Anthony has since then been in possession of the properly for one year. 2) Can Anthony acquire ownership of the Property by acquisive prescription? How many more years does he have fo possess it fo acquire ‘ownership? (27)SAR QE AFORINE PAST 10 YEARS PROPOSED ANSWER: Yes, Anthony may acquire ownership of the lond by acquisiive preterption becouse he pos rened with @ just title but not from the tue owner, Ordinary acquisiive prescription requires possession of things in good faith and with just file for the time fied oy low (Article 1117) Anthony needs to possess the land for 9 more years since ownership ond other real rights over immovable property ore acquired by ordinary prescription through possession of fen yecrs [asticle 1134), Since Anthony has possessed the land ony for one year, he stil needs 7 years 10, complete the 10 yecr prescriptive period. ») If Carlo Is able to legally recover his pro- pert, can he tequite Anthony to account for ail the fils he has harvested ftom the property wile in possession? (295) PROPOSED ANSWER: No, Carlo ccnnot require Anthony to. cc- count for ell the fruits the later has harvested do- fing the fime thot ne possessed the property Being c possessor in goad lth, Anthony is en: filed to al the fruls received trom the property Uni his possession Is legaly interupted (Afticie 544, Clvi Code), Possession Is legally Intenupted only for the time of receipt of judicial summons by the possessor (Article 1123, Civil Code). Hence, if ever Anthony would be required to aecount for the fut, it would only be reckoned from the time: 2008 BAR EXAMINATION he received jucicial summons because by then, the cheracter of his possession was rensformec from good faith to bed fait, ) If there are standing crops on the property when Carlo recovers possession, can Catlo ap propriate them? (27) PROPOSED ANSWER: Yes, If there are stancing crops at the time Carlo recovers possession, Colo may appre priate them but only an @ prorated basis, Since Anthony's possession staried in good foith the ‘rus harvested on the property shall be prorated between Carlo and Anthony depending on the etiod of possession. Ths is ordained by Article 545 of the Civil Code which provides that ott ‘ime the good feith ceases, there shoud be any natural or incustial fruits, the possessor shall have © ‘ight fo a port of the net harvest, bon in Proportion to the fime of the possession, The charges shall be divided on the same basis by the two possessors vi ‘Adam, a building conkctor, wat engaged by Blas fo construct @ house on a lot whieh he (Bios) owns. While digging on the lot in order to lay down the foundation of the house, Adam hit @ very hard object. It tuned out fo be the vault of the old Banco de las Islas Filipinas. Using a deto-BARA A FORTHE PAST 10 YERRS nation device, Adam was able fo open the vault Coniaining old netes and coins which were In ci ‘culation curing the Spanish era, While the notes tand coins are no longer legal fender, they were valued ot P 100 milion because of their historical ‘value and the coins’ sliver and nickel content The following filed legal clcims over the notes cand coins 1) Adam, as finder: 1) Blas, as owner of the property where they wore found IM) Bonk of the Philippine Islands, as succes- sor-in-interest of the owner of the vault; and iy) The Philippine Government because of their historical valve, {9} Who owns the notes and coins? (47) PROPOSED ANSWER: The notes ond coins shall be owned by ‘Adam and Blas in equal shares. The vauil conta ring the notes ond coins may be considered hi den treasure even ifthe facts tote that the vou! was previously owned by Banco de Ios Was Fk pines. Considering the length of time that ine ‘vault hos been buried it may be considered hie: den treasure pecause the lawiul ownershio of the vault does not appear. It cannot be assumed that Bank of the Philippine Isonds os the succes- socininterast of Banco de las las Flipinas would ‘own the old notes and coins considering that i 2008 BAR EXAMINATION ‘wos not part of the assets turned over to BPI by Banco de Ios isles as the latter may nob even be ‘aware of is existence anymore ot the ime 2! suceseded il, Being in the category of hidden ‘reasure, the finder Adam, who is nat © trespasser Is entitled to one-half of the treasure while the ‘other nif belongs fo Blas os the owner of the land on which it was found [Aricle 438, Civ Code). the notes and coins may be acquired by the Sicte pursuant fo Arlicle 438 which provides thet if the Jhings found be of interest fo science of the arts the state may acquire them at their just pice, b) Assuming thet earlier of both Adam and Blas are adjudged as owners, wil he notes and coins be deemed part as thelr absolvie commu: nity of conjugal partnership of gains with their respective spouses? (272) PROPOSED ANSWER: Yes, the notes ond cons will be deemed part of the assels of the absolute community of con} {gal porinershio existing in the marriage of Acom ‘and! alas. The law provides that in a regime of ‘absolute community, al the properties owned by the s20use5 ct the time of the celebration of the mortiage as well as whatever they may acquire ‘nereatter shal fm part of the absolute commu: nity. (Aricle 91. Family Code]. Ino regime of con. jugal portnership. properties acquired by elther or both spouses though thei efferts or by choneeBAR GH A FOR THE PAST IO YEARS during the mariage shall form port ef their con: juga pr iva The properties of Jessica and Jenny, who are neighbours, lie along the banks of the Marikina River. At cerfain times of the year, the river would swoll and as the water recedes, soll, rocks and other materials are depesiied on Jessica's and Jenny's properties. This pattern of the tiver swe ling, receding and depositing soll and other ma- terials being deposited on the neighbours’ pro- petties have gone on for mony years. Knowing tis patter, Jessica constructed a conerete ber. fier about 2 meters from her property line and ex. tending towards the river, so that when the water fecedes, soll cnd other malericls ore trapped within this barrier. After several years, the area between Jessica's propery line fo the concrete barrier was completely filled with soi, effectively Increasing Jessica's property by 2 meters. Jen- ny's propeity, where no battler was constructed, lio increased by one meter along the side of the river. 4) Can Jessica ond Jenny legally claim ow- netship over the additional 2 meters and one me- ler, respectively, of land deposited long thelr properties? (27) 2008 BAR EXAMINATION PROPOSED ANSWER: With respect to Jessica, she cannot legally cilcim ownership over the additional two meters ‘added fo her land becavie for the alluviurn to belong to the riparian owner, the law requires that the some must be gradually received from the effects of the cunent of the waters. 487, Civi Code). Accretion, as a mode of ac fing property under Art, 457 of the Civil Code, uires the concurrence of these requistes that the depostion of sal or sediment be gracucl ‘and imperceptible: (2) that it be the result of the action of the waters of the river; ane! (3) that the: land where accretion takes place Is edjacent to the banks of rivers. These ote called the ries on aluvion which if present in @ case, give to the owners of lands adjoining the banks of rivers 0° streams ony accretion gradually tecsived from the effecis of the curant of woters (Meneses v Court of Appeais, 246 SCRA 374 [1995). Where the land was nol formed solaly by the natura elect of the cument of the river bordering scic land but i olso the consequence af the aireci (ond deliberate intervention of man, itis deeme: ‘© man-made accretion ond, as such, part of the public domain. [Voo. De Nazareno v. Court of ‘Appeats, G.R. No. 98045 June 26, 1996) Itis clear from the facts thet Jessica constuc- fed the concrete barrier precisely le trap the de- Postion of soll and other sediments on her land. such that it cannot be considered es onBARGE A FORTHEPAST 10 YEARS due fo the action ofthe river. At mast, it Is aman- made accretion, and thus it belongs fo the State. However, Jenny can legally claim the addi tional one meter added to her land pursuant to Asticle 457 of the Civil Code being @ graduol ce- position of soll end sediment solely through ac- b) If Jessica’s and Jenny’s properties cre re- istered, wil the benefit of such registration ex- fend fo the increased crea of thelr properties? x) PROPOSED ANSWER No, the registration of the respective proper tios of Jessica end Jenny shall not extend to the increased arec of thelr properties but they have io file @ separcte appieation for its reaktration Under the provisions of the Properly Registration Decree and prove befere the cout! that the re- Quisites of accretion under Article 457 have been complied with, ¢) Assume the two properties are on a cit ‘adjoining the shore of Laguna Lake. Jessica and Jenny had a hotel bul on the properties. They had the earth and rocks excavated from the properties dumped on the adjoining shore, giving tise fo a new patch of dry land. Can they validly lay claim to the paich of lanl? (2%) 2008 BAR EXAMINATION PROPOSED ANSWER: No, Jessica ond Jenny cannot valialy lay claim fo the patch of lana. In Vela, De Nazarene vs Court of Appeals, Giz. No. 98045 June 26, 1996, the Court ruled that the requirement tha’ the depost should be due to the effect of the cur Tent of the river's indispensable. Ths excludes trom ‘At- A57 of the Civil Code all deposits caused! by human intervention, Futting it aifferenty. aluvion must be the exclusive work of nature. x. Arthur executed a will which contained only: (0 a provision disinherting his daughter Bernice for running of with a married man, end (i) @ pro: vision disposing of his share in the family house ‘and lot in favour of his other cl Dora. He die not make any provisions in favour of his wife fica, because at the will stalec. she would anyway get Js of the house and lot as het Conjugal ‘shore, The will was very brief and skaightforward and both the above provisions were contained in page 1, which Arthur and his instrumental witness, signed at the bottom. Page 2.contained the altestation clause and the signo- tures, at the bottom thereof, of the 3 instrumental witnesses which included Lambert, the driver of Arthur, Yoly, the femity cook ond Attorney Zorba, the lawyer who prepared the will There was a 3rd age. but this only contained the notarial ac- knowledgemen!. The atiestation clause statedAR. A FORTHE PAST 10 YEARS the will was signed on the same occasion by ‘Avihur and his instrumental wiinesses who all Signed In the presence of each other, and the notary public who notarized the wil. There cre no marginal signatures or paginailon appearing on ny of the 3 pages. Upon his death, it was disco. ‘ered that apart from the house and fol. he had « P milion account deposited with ABC Bonk. 1a) Was Erica preterted? (172) PROPOSED ANSWER: No, Erica was not preteried, Pretertion con- skis in the omission In te testator’s wil of the forced heirs of anyone of them either because they are not mentioned therein, or, though men- tioned. they ore nether instituted as heis nor are expressly disinheriied [Nuguid v. Nuguid, 17 SCRA 450 [1966]: Maninang v. Court of Appeais, 114 SCRA 478 (1982). In order fer pretertion to toke ploce. the heir omitted by the testator mus! be © Compulsory heirin he direct line (Ariicle 854, Civil Code} Insofar as Erica is Concerned, arficle 854 of the Civil Code may not apply as she does not fscend or descend tom the festater, althougn she is o compulsary her. Stated otherwise, even it tne surviving spouse Is G compulsory het. here is ‘no pretertion even It she is omitted from the inheritance, for sne i not in the direct line [ ¥, Inlermediate Appellate Court, GR. No. October 27, 1987). 2008 BAR EXAMINATION ) Whet other defects of the will if any, can ‘cause denial of probate? (2%) PROPOSED ANSWER: ‘Apait from the issue of pretention, the other defects in the wil of Arthur which may couse de~ rial of probate ore the following: the failure o: tne attestation clause fo state that the witnesses signed in the presence of the testator: the fac that one ef the attesting witnesses was the nctary public before whom the will was acknowledged, The attestation clause must not only state tha: the testator signed the willn the presence of the attesting witnesses, its mandated! that the cttes fation clause must alo state that the attesting witnesses signed the willnct only in the presence of each other but also in the presence of tne testator (Article 80S, Civ) Code]. in the cote pre- sented, the attestation clause merely mentioned that the wil was signed by arthur and his int: mental wiinesses wno all signed in the presence of each other but it did not categarically state that the ‘witnesses signed in the presence of ‘Adhur {Caneda v. Court of Appeat, GR. No. 108554 May 28, 1993). Hence, the detect cannot bbe cured by « mere examination of the will clone but would necessitate the presentation of extin: sic evidence, Also, the notary public cannot be one of the cttesting witnesses because he cannot acknow- ledge before himself his having signed the wil os 1 witness, To cllow the notary public to actBAR G&A FORTHE PAST 10 YEARS third witness, or one the attesting and acknow- edging wiinesses. would nave the effect of ha- ving only two aitesting wiinesses fo the will which ‘would be in contravention of the provisions of Ar- ticle 805 be requiring at least three credible wi- nesses fo oct as such ond of Acie 806 which equies tnot the tesiator and the required num- ber of witnesses must appear before the notcry public fo acknowedge. the will (Cruz v. Vilas, GRNo, L32213 November 24, 1972) €) Was the disinheritance vaitd? (1%) PROPOSED ANSWER: No, he disinnerttance is not vali. One of the requisites for a valid disithesitance is that it must be made in a valid will While Bemice’s act of running off with c married man may consltvle & ground for 4 valid dsinnentance, under leading dishonorable and disgraceful life (Article 919, Wil Code}, the requisite that the disinnertance: mus! be made in @ void wil is lacking. The wil in the cose presented is vold for the failure of the Gtesiotion clause to sicie thet the witnasser signed the wil not only in the presence of each other but also in the presence of the testator, ‘and that it lacks the required number of witnesses 5 the notary publics dqualifed as a witness d) How should the house ond let, and the cash be alstibuted? (1%) 2008 BAR EXAMINATION PROPOSED ANSWER: The house and lot ond the meney should be distibuted in accordance with the rules on intes- tote succession. Arthur himself acknowledged ih the wil the conjugal nature of the house since he menfioned thet he did not insttute Erica b cause she would get one-naif of the house anj- way. As such, one half of the house shall be divi- ed equally mong Arthur's heirs, his wife Eica, ‘ond his three chigren Semise, Connie, and Bora, (On the assumption that the PIM is exclusive to Arthur, i shall be divicled equally among his suv ving heis such that each of them shall De en- fited to P250,000.00. However, if the PIM is like- wise part of the conjugal property of Arthur ane Bico, then only P5C0,000.00 shall be divided equally among the four heirs of Arthur at the rate (of P125,000 for ech. Thus, as the surviving spouse Erica shall get « total of P425,000.00 which con sists of her conjugal share ond her V4 share in the 500,000.00 as heir of Arthur. xt John and Paula, Bish citizens ot birth, ae- quired Philippine citizenship by naturalization offer their manage. During thelr mariage the couple ‘acquired substaniil lendholdings in London and in Maka. Paula bore John three children, Peter. Paul and Mary. In one of thelr tips fo London, the couple executed en joint will appointing each ‘other as their heis and providing upon the deathBARA A FORTHE PAST 10 YEARS of the survivor between them the entire estate ‘would go to Peter and Paul only but the two could not dispose of nor divide the London eslate os Tong as they live, John and Paula died tragically in the London Subway tererst alfack in 2006. Peter ‘and Paul fled @ peiiion for probate of thelr pa- ‘ent's will before @ Maketl Regional Tilal Court 4) Should the will be admitied fo probate? on) PROPOSED ANSWER: No, the wil of John and Paula should be de ried probate. Philippine law does not allow the execution af joint wil by reason of public policy. As Flipino ciizens, John ond Paula re therefor. not permitted 10 execute a joint will even if they executed it in a country where Joint wils cre: lowed. Another reason why probate siould be ‘Geried is he pretention of Mary who was their ie timate daughter, all chiloren of the testator are conigered compubory nets and unless they are valisly dtinherited, Tey connet be omitted in the wil fo the testator. b) Are the testamentary dispositions valid? on, PROPOSED ANSWER: No, the testamentary provisions are nat con- sidered valid. The preterilion of o compulsory heir in the direct ine renders the entre will volo ex Cop! legacies and devees whicn ote not inoif 2008 BAK EXAMINATION ious. In the case presented, Mary was totally omitted in the wil without being expressly dsinhe- filed, hence the willis void ¢) Is the testamentary prohibition agains! the division of the London estate valid? (27) PROPOSED ANSWER: On the assumption that the wills vafd, the provision prohibiting tne disposition or alvsion of the London estate fer as long as Peter anc Paul cre alive contravenes the provision of aticle 870 wich provides that dispositions of the testator declaring all or part of the estate inalienasie for mere than twenty years are void, In edcltion, Ar ficle 494 of the Clvi Code provides that a donor or festotor may prohibit partion for period which may not exceed twenty [20] years Xx, Emmesio, an overseas Filipino worker, was co- ‘ming home fo the Philippines after working for so many years In the Middle East. He had saved 100,000 in his savings cecount in Manila which he Intended fo use fo stor! @ business in his home counkry. On his fight home, Emnesto had a fatal heart attack. He left behind his widowed mother, his common-law wife and thelr win sons. He lof ro will, no debts, no ether relatives and no other properties excep! the money in his savings ae-BARGE A FORTHE PAST 10 YEARS ‘count. Who ate the heits eniiled to Inherit from him and how much should each receive? (37) PROPOSED ANSWER: The heis entlled to inherit from Emesto are his ‘win sons by hs common law wife, ond his mother. Legitimate parerts or ascendiants of the deceased ‘concur with fhe ilegtimate chigren of the totter [aricle 991, Civil Coae] since Enesto dled intes- late, his mother wil get one-half ofthe P100,000.00 estate or PS0,000.00 Gnd the other half wil go fo his ilegitimata twin sonsin equal shores Allernative Answer: Emesto's cohabitation with his common low wife would entile the Ictter fo an equal share in the P100,000.00 eequired during their conabita- tion if there was no impediment to marry on the por! of both (Arlicle 147, Family Code) Hence. the estate of Emesto would only be P50,000.00, The ofher 50,000.00 will pertain fo the commen- law wife as her shore in the co-ownershia whie the P50,000.00 estate of Emesto wil be clviced elween his mother, wno will get one-half, and the two egiimate sons who will get the other holt of the P80,000.00 to be divided equally bet- ween them, xi Raymoné, single, named his sister Rutfa in his will as @ devise of a parcel of land which he ‘owned. The wil Imposed upon Rutfa the of 2008 BAR EXAMINATION tion of preserving the land and transfering it, upon her death, fo her illegitimate daughter Scoriet who was then only one year old. Ray- mond later died, leaving behind his widowed mother, Rutfe and Scariet, ©) Is the condition imposed upon Rutfa to preserve the property and fo transmit # upon her death fo Scariet, vatia? (172) PROPOSED ANSWER, Yes, the conaition & voll, The coneftion in the nature of a fideicommissory substtution where- by the fist heir oppointed by the testator it obliged, {0 preserve and transmit the properly to the se- ‘cond heir, provised thot the fist and second hei ore both dive at the time af tha death ef the fest forand they ore only one degree apart from each other. Al the requisies of a fideicommissary subs- fitution are present, hence the condition s vale, ») It Scarlet predeceases Rutla, who inheris the property? (272) PROPOSED ANSWER: If Scatlet predeceasos Ruffe, the he's of Scarlet may cicim the property rom the estate of Rutfa upon the latter's death. In @ fidelcomms sary substitulion, both the frst and the second heir inhert from the testator and as such, its me material it the second her predeceases the frst heir for as long as the second heir wos alive at tne fime of the testator’s death, The second heirBARGE AFORTHEPAST 1D YEARS ‘ecquires the right fo the succession from the fime Of the testater’s death, even though he prede- ‘ceoses the feveiary. The raht of the second helr shall pass fo his hes ¢) If Rutfa predeceases Raymond, can Scarlet Inher the property directly fom Raymond? (2%) PROPOSED ANSWER: Yes, Scarlet can sill Inher the property from Raymond even if Rulle predeceased ‘he latter. In @ fideicommissary subsftution, both the fist ‘ane second het inherit from the festater but the second hel’ ight ls merely postponed until after the death of the fist halt or if the festator hos specified o petiod within which the fest heir shal ftensmit the property fo the second het. then pon the expiration of such period. The intention of the testator s eventually for the second het 1o get the property. Following this ine of reasoning, the second heir con inheit even if the frst heir predeceased the testator. The fact that Scarlets €n ilegifmate child of Rutfo wil not affect har fight to succeed from Raymond because the barier between legtimates ond ilectimates would only applyf the deceased died intestate. xv. Steve was bom blind. He went fo school for the blind, anc! learned to recd in Bralle language. He specks English fluently. Can he: 2) Make a wal? (1%) PROPOSED ANSWER: Yes, Steve can make @ wil All persons who cre not expressly prohibited by law and wno ore eighteen years of age ond of sound mind may make @ will (Aricle 794, 797, 798, Civ Code}, However, he can eniy make @ notafal wil ang sholl be subject to additional fermalties men- tioned! in Aricle £08 of the Civ Code, He cannot fexecule a holographic wil because the law re- utes that it must be enirely written, dated, ang Sioned by the hand ef the testator himselt (Alice B10, Civi Coa} b) Act as a witness to a will? (1%) PROPOSED ANSWER: No, Sieve cannot be a witness fo © will be: couse the law requires that o witness must not be bling, cect, or dumb (Article 820, Chil Code] 1a notarial wills executed by a blind testa- tor, the law requires that the wil must be read to him twice. The low species that it must be read to the testator fis by one of the attesting witnes- ses ond once by the notary public Sefore whom the walwas acknowledged, ) In elther of the above instances, must the willbe read to him?PROPOSED ANSWER: Assuming that Steve can execute a hologto- phic wil, would not require that it be read to Fim becayse that requirement only applies fo no» ral wils executed by a blind testator. xv, Fdvardo was granted a loan by XYZ Bank for the purpose of Improving « building which XYZ leased from him, Edvard, executed the promis- sory note ("PN") In favour of the bank, with his friend Recardo at co-signalory. In the PN, they both acknowledged thal they are "Individually ‘and collectively” lable and waived the need for prior demand, To secure the PN, Recardo execu ted a real estate mortgage on his own property. ‘When Edvarde defaulted on the PN, XYZ stopped payment of renials on the bullding on the ground that legal compensation had set in, Since there was sill a belance due on the PN offer applying the rentals, XYZ foreclosed the real estate mort- gage over Recardo's property. Recardo opposed fhe foreclosure on the ground that he is only co-signatery; that no demand was made upon him for payment, and the balance of the loan, Further, Recarde’ sold thal when the bank in: yoked compenselion between the rentals ond the amount of the loan, i! amounted to a new contract or novation, and had the effect of ex: {inguithing the secuilly since he did not give his content (as owner of the properly under the real estate mortgage) thereto, ©) Can XYZ Bank volldly assert legal com pensation? (27) PROPOSED ANSWER: Yes. XYZ bank con claim legal compensation but only fo the extent of the sum due from the {debtors ond the rentals due from the bank. Legal ‘compensation under Aricle 1279 takes place by operation ef law when all the requisites men: tioned therein ore present ond extinguishes oth debis fo the concurrent amount, even though ihe creditors and dabtors are not aware of the compensation (Article 1290, Ciil Code). Since XYZ bonk and Eduardo ore mutual crediters and Gebio's of each other, and Bath debs for the Payment of money appear to be both de, iui Gated ond demandable legal compensation may be invoked by “he bank b) Con Recardo’s properly be foreciosed to ey the full balance of the loan? (2%) ‘PROPOSED ANSWER: ‘Yes, Recordo’s property may be foreclosed to poy the belence of the loan since he bound hin- sell "individually ond collectively” to pay Edvar- do's ablgation to XYZ. In oiner words, Recoros's bigation is sclary. The note also waived notice ‘ond demand by the creditor.BARGE A FORTHE PAST 10 YEARS ¢) Does Recardo have basis under the Civil Code for Claiming that the original contract was novatee? (2%) PROPOSED ANSWER: No, Recarde cannot claim that there wat a novation of the original contract. Novation os fule must be exoress ond unequivocol and! in ‘care of implied novation, It mus! be shown that there is complete incompatiolty between the ‘ld abiigation and the new obligation. The fact that the bank may have applied the rentals to the loan obligation of Eduardo does not amount toa novation becouse the origina) ferns of the Contract remain the same. The compensation in- voked by the bonk does not amount fo ether Cbiective novation o There was no change in the piincipal object or conditions of the contract, Gnd there war also no tubjective novation oF there wos no subsitution of debiots or suorogo: lion of @ third person fo the rights of the crectr. xvi. Dux leased his house fo Irs for a period of 2 years. At the rate of P25,000,00 monthly, payable ‘annually in advance. The coniract sipuiated that I may be renewed for another 2-year period Upon mutual agreement of the parlies. The con: tract olso granted iris the right of fist refusel to purchase the property at any fime during the lease, if Dux decides fo sell the properly at the 2008 BAR EXAMINATION same price that the property is offered for sale to 4 thd perly. Twenty-three months otter execu- tion of the lease contract, Dux sold the house to his mother for P2 milion. lis claimed that the sale was @ breach of her right frst refusal. Dux said there was no breach because the properly war sold fo his mother who Is nota thi pay. Is flee {an action to rescind the sale and to compel Dux to sell the property to her at the same price. Al femotively, she asked the cour! to extend the lease for enother 2 years on the same lerms. ©) Can iis seek rescission of the sale of the property fo Dux's mother? (3%) PROPOSED ANSWER: Yes. Its moy seek rescission of the sale of the property made by Dux to his mother. The lease Contract contolns a right of fist refusal on the part of irs and when @ lease contract contains © fight of fist refusal, the lesiors under a legal duty fo the lessee not to sell fo anybody ot any price Until aer.he has made an offer to sell to tne later at a certcin price and the lessee has rolled toaccepti The essence of a fight of fist refusal is the identity of terms and conditions which the lessor wil offer fo the lessee os fo ony other buyer ond | 's immateriol that the land was sold 10 Dux's matner (Tanay Recreation v. Fausto, GR. No. 140182. April 12, 2008). Any sale mode by the ies. Sorin violation of the lessee's ght of fret refuseBARGE A FOR THEPAST 10 YEARS \whila valid is rascissble ot the Insicnee of the ler- see for being done in fraud of cxesitors (Parana. que Kings v5. Court of Appeais, GR. No, 111538 February 26, 1997; Guzman Bocaling v. Banvievie, GR. No. 86150 Merch 2, 1992) 'b) Will the alternative prayer for extension of the lease prosper? (27%) PROPOSED ANSWER: No, the altemative prayer for renewal of the lease will not prosper because the court cannot make the contract for the partias, is duty sii ted only 10 an interpretation of what they hove forged fsetween them. Furthermore, fo ask fer on extension of the lease would be Inconsistent with ine remedy of rescission af the sale because by ‘king for rescission, is isn fect invoking 3 Vole: tion of her right of fist refusal to uy the property ‘and to ask that the laase be renewed would not be consistent with her prover to be alowed 10 buy the propery, xv Felipe borrowed $100 trom Gustavo in 1998, when the Phil P-USS exchange rate was P5é-USSI. ‘On Morch 1, 2008, Felipe tendered to Gustavo c cashiers check in the amount of P4,135 in poy- iment of his USS100 debt, based on the Phil. P-USS exchange rate a that lime. Gustavo accepted the: check, but forgot fo depost it unfil Sept. 12.2008. His bank refused to accept the check because it had become stale. Gustave now wants Felipe to pay him in cash the amount of PS 600. Claiming {hat the previous payment was not in legal fender, cand that there has been extaordinary deflation since 1998, and therefore, Felipe should pay him the valve of the debt at the time it was incurred. Felipe refused to pay him again, claiming thai Gustavo is estopped ftom raising the five of legel fender, having accepted the check in Merch, and that i! was Gustave's negligence in not deposiing the check immediately that caused the check 0 become stale, ©) Can Gustavo now raise the issue that the cothier’s check is nat legal tender? (2%) PROPOSED ANSWER: No, Gustavo cannot belatedly raise the issue that the check is not iegal fencier, The principle of ‘estoppel rendess an el, adrnision, oF represen. tation conclusive upon the person making ft end i connot be denied or disproved against the ‘per son relying thereon (Aricle 1431), By accepting the check as c means of payment without ony Protest of objection, Gustavo is estopped fom Cloiming that tis not a valid mode of payment. ) Can Felipe validly reluse to pay Gustavo ‘again? (2%) PROPOSED ANSWER: Felipe may refuse to pay again but must re- Isve the cneck. While Iris tue that payment by