Atty. Leilanie Yangyang Espejo: Succession TSN 3rd Exam Coverage Based on the Lectures of

Succession TSN 3rd Exam Coverage Yangyang Espejo Based on the Lectures of Atty. Leilanie Yangyang

SUCCESSION September 25, 2013

1

consider that even during the probate proper. It is in a case to case basis.

DISINHERITANCE The legitime is safeguarded by the law. The testator cannot  just deprive his compulsory heirs of their legitime. We have discussed preterition –  the institution of heirs shall be annulled and the preterited heir shall be given his legitime. There will be intestate succession.

 Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (848a)  Art. 916. Disinheritance Disinhe ritance can be effected only thro ugh a  will wherein the legal cause therefor shall be specified. (849)  What is Disinheritance? It is defined in Art 915. So a comp8ulsory heir can actually be deprived by his legitime but that is for grounds provided for by law. And the process of withholding his legitime is what we call disinheritance.

REQUISITES OF DISINHERITANCE 1) it should be for causes expressly stated by law (Art 915) Dili pwede for any cause, pareha sa teleserye na idisinherit kay magminyo sa dili gusto sa parents. That cannot be. That is not valid. That is not a ground for disinheritance.

2) it should be made in an extrinsically valid will(Art 916) So no disinheritance disinheritance can be made without a will. For the disinheritance to be valid, the will must also be  valid. So if there were valid grounds but the will was  witnessed by 2 persons only, the will is not valid. Therefore, the disinheritance cannot be given effect. In Probate, the court will discuss only the extrinsic  validity of the will –  identity, due execution, testamentary capacity. One exception is preterition. If preterition is apparent from the very face of the will the court may proceed to determine the question of preterition because it will be a waste of time of the court and the parties if they later discover that the will cannot be given effect because there is preterition. That is not an absolute rule ha na once the question of preterition is raised the court will immediately

MANINANG vs CA GR L-57848 June 1982 Issue: won the omission in the will is preterition or disinheritance. Held: preterition and disinheritance are 2 diverse concepts. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heirs of his share in the legitimate  for a cause authorized by law." Disinheritance is always "voluntary", preterition upon the other hand, is presumed to be "involuntary" The effects of preterition and disinheritance are also totally different. The effects flowing from preterition are totally different from those of disinheritance. Pretention under Article 854 of the  New Civil Code shall annul the institution of heir. This annulment is in toto, unless in the wail there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", but only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of  preterition. Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. We cannot go directly to the determination of that issue, without first determining won the will is extrinsically valid. Why? because if indeed it was a disinheritance, a valid disinheritance can only take place in a valid will. How do we know if the will is valid? - If the 3 questions of identity, due execution, and testamentary capacity are answered. So that is not an excuse for going directly to the question on intrinsic validity. If the issue is won there is preterition or disinheritance, we should first go to the extrinsic validity of the will first before we proceed to the intrinsic validity.so that would not warrant an exception to the general rule.  Again because the question of disinheritance can only be addressed if indeed there is a valid will. So it is a prerequisite that you first know won the will is extrinsically valid.

Succession TSN 3rd Exam Coverage Yangyang Espejo Based on the Lectures of Atty. Leilanie Yangyang 

3) the legal cause should be specified (Art 916)

Even if there is indeed a ground for disinheritance but it was not mentioned in the will, niingon lang na “I hereby disinherit my son”, the disinheritance cannot be given effect.

4) it should be for an existing cause

For example: iyang anak 2 yrs old pero naay tendency na mahimong criminal. So gidisinherit na niya. That is not valid because the cause does not yet exist. It cannot be for a future cause.

 Art. 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850)

It shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be  valid to such extent as will not impair the legitime. legitime.

Example: Estate = 1.2M. ABC children. He only instituted A and B 

testator said that “I hereby disinherit C because I don’t like his face, he looks like our driver.” >>> INVALID DISINHERITANCE Consequence: Consequence: it shall annul the institution of heirs but only insofar as the legitime of C is prejudiced. So if there is invalid disinheritance, give the legitime of the invalidly disinherited heir and all other provisions can be given effect. e ffect. So here you give the legitime of C = 200K. The free portion of 600K will be given to A and B only because they are the only ones instituted. This is the consequence if there

DISTINCTION BETWEEN PRETERITION (Art 854) AND INVALID DISINHERITANCE (Art 918) PRETERITION

INVALID DISINHERITANC E

Consequenc e to the institution of heir

Shall annul the entire institution of heirs

shall annul the institution of heirs insofar as it may prejudice the person disinherited

How distributed

distribute the estate by intestate succession

the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime

Example

NHE 1.2M / 3 = 400K each to ABC.  X gets nothing because he’s an instituted heir unless X is given a devise or legacy  which is not

If C is disinherited because he is gay. That is invalid disinheritance. We give the legitime of the compulsory heirs = 200K each. The free portion of

5) the cause for the disinheritance must be a true cause It has to be a true cause because it has to be proved. If the disinherited heir would deny having attempted against the life of the testator, the other heirs have the burden of proving the truth of the cause for disinheritance. So dili automatic na ma exclude, the heir can actually question/oppose/deny the ground for disinheritance.

 Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a) INVALID DISINHERITANCE is when… 





disinheritance does not specify the cause or even if there is a cause specified but it does not prove to be true or if there is a cause but it is not one of those mentioned in the Civil Code.

Effect of invalid disinheritance

2

NHE = 1.2M,  ABC are the heirs. Instituted A, B and X (friend).

Succession TSN 3rd Exam Coverage Yangyang Espejo Based on the Lectures of Atty. Leilanie Yangyang

inofficious.

600K is divided by But if you are an  A, B and X equally instituted heir and = 200K each. there is preterition, So here it does not unless you are also matter if X is just a compulsory heir, an instituted heir  you will not he can still inherit receive anything. from the free portion.  What if C was invalidly disinherited and B is preterited

The institution of heirs shall be annulled. Mas mag prevail ang effects sa preterition.

 Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: 















 When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;  When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;  When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;  When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;  A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant;

3

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; So here we are talking about CHILDREN or DESCENDANTS (legitimate/illegitimate) who are being disinherited. disinherited. “found guilty” –  –   so there must be conviction by final judgment. “attempt” – with more reason if frustrated or consummated. This also contemplates an intentional one, not by reckless imprudence, because this connotes a perversity on the part of the child or descendent. (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six  years or more, if the accusation has been found groundless; groundless; This is false accusation of a crime which the law prescribes imprisonment for six years or more. So na acquit jud ang testator. 

 Accused father na nag patay sa manok –  only malicious mischief, not a ground

The false accusation may be in these forms: 





The descendant filed a case against the testator or The descendant refuse to be a witness for the testator (on a ground which would have been sufficient to acquit the testator) The descendant acted as a false witness against the testator (but again the testator was found innocent)

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; So this presupposes conviction by final judgment of the child or descendant for adultery or concubinage with the spouse of the testator. The SPOUSE can be disinherited but not under this ground but under Article 921 (4) - when the spouse has given cause for legal separation, this does not even need conviction.

Maltreatment of the testator by word or deed, by the child or descendant;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

 When a child or descendant leads a dishonorable or disgraceful life;

Self-explanatory

Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

GROUNDS FOR DISINHERITANCE

(5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; So here the child refuses to give support to the parent or ascendant. For the ground of refusal to be justifiable, we

Succession TSN 3rd Exam Coverage Yangyang Espejo Based on the Lectures of Atty. Leilanie Yangyang

have to consider the means of the child and the necessity of the parent to demand such support.

4

here presupposes something HABITUAL kay “life”. So ang one-night-stand or first-time ok lang! haha!

(6) Maltreatment of the testator by word or deed, by the child or descendant; It is the child or descendant who maltreats the testator. Example: yawyawan nimo pirminti imong mama, ginasagpa, gina dukol, gina kusi. Ok lang sa parent ang mgangusi sa anak pero dili pwede na ang anak ang mangusi sa parent. That is why it is a ground for disinheritance of a child but it is not a ground for disinheritance of a parent.  Walay nakabutang nakabutang ana sa Art. 920.

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Mga grave na jud ni xa na mga offenses. Conviction presupposes a final judgment.

st

Succession Sept 30,2013-1  part

PECSON vs MEDIABILIO? FACTS : The testator disinherited his granddaughter Rosario because she was “grossly disrespectful to me, she raised her hand against me” (usually this is a ground for disinheritance disinheritance of the descendant) but why did Rosario raise her hand against the testator? SC found out the cause why Rosario acted that way, kag gistoryahan diay siya about sa lalake na nanguyab sa iyaha. After that incident, Rosario lost all her mental faculties (nabuang xa).

responsible for the HELD: SC said that she was not responsible disrespect and disobedience shown to her grandfather during that occasion. It was found that she was of very tender age (14 at that time) and she lost the use of her mental faculties. So basig buang na xa before pa ato. It was invalid disinheritance, the ground was disregarded because it was not a valid ground for disinheritance.

(7) When a child or descendant leads a dishonorable or disgraceful life;

This is a very controversial ground. gr ound. “dishonorable or disgraceful” –  –  we have to take the norms of society. If acceptable na sa society ang mangawat, then dili na xa dishonorable. Example: Napoles – she can be disinherited if maconvict na xa, xa, although she doesn’t need it. Tuition fee girl – not dishonorable daw (ana si mac2! Hahaha! The law

 Article 920. The 920.  The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their  virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud,  violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause; (8) An attempt by one of the parents against the

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

life of the other, unless there has been a reconciliation between them. (756, 854, 674a)

(Note:Kulangan dri nga part kay wala narecord-as I can remember ana si mam, dili na idiscuss tanan kay tapos na daw dati- I think No.1 ni siya- When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue)

5

ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants- and as we discussed last meeting, this requires conviction by final judgement but actually, the same situation can apply in No. 8.__ attempt by the guilty parents against the life of the other(?). the father attempted against the life of the mother of the testator, so the testator is the child, so the testator can disinherit his father.

This refers to the kind of abandonment when the children are deprived of the basic necessity in life. So it is not necessary that this abandonment should equate to a crime. So as long as, again because of the abandonment, the children have been deprived of the basic necessity, so that it may be a ground for disinheritance. Or inducement to live a corrupt or immoral life or attempted against their  virtue. The law says a daughter, so you could just imagine a daughter who has been led to a life of prostitution for example, or the parent attempted to rape the daughter or child or seduce. Does this apply to son? Ok, by analogy, this can apply to son because __ nowadays, males can be induced to live a corrupt or immoral life. Diba tong unang panahon, usually mga babae man ang ga engage sa prostitution, pero karun dili ta makaingon nga ang mga customers mga lalaki lang kay naa nama’y mga matron, nay mga bading diba so pwede na ma include ang son.

Under No.2 the ascendant could mean the mother of the testator, so this provision is similar to the attempt by one of the parents against the life of the other parents. So for example, when the father of the attempted against the life of his spouse who is also the mother of the testator, do we need conviction by final judgement or the mere attempt suffice? If you are the lawyer for the testator and you were consulted by the testator. And you asked, did your mother filed a case, and he says no, you cannot just say, ah wala na. kalimti nalang na kay wala kay ground. Hulata sa magfile imong mama. Actually, you can use that as a ground to disinherit, not under No. 2 but under No. 8.  An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. So kung nagreconcile na ang mother og father sa testator, then with more reason that the testator must forgive the offending parent because he is not the directly affected. That is the reason of law there.

Next No. 6- The loss of parental authority for causes specified in this Code

 Article 921. The following shall be sufficient causes for disinheriting a spouse:

 You have to know that not all grounds __law have authority to be a cause for disinheritance, like for example, age of majority, that causes the loss of parental authority, but that  would not be ground to disinherit because what the law contemplate to be a ground to disinherit a parent or an ascendant is one that is due to the fault of the parent or the ascendant. So only those grounds.

(1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false;

No. 8-  An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

(3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made;

The attempt here does not mean conviction by final  judgement, it can be proved by preponderance of evidence. Now take note, we also have No. 2- ) When the parent or

(4) When the spouse has given cause for legal separation;

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

(5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)

6

respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion;

So, some of the grounds for disinheriting a spouse are the same with the grounds for disinheriting a child, ascendant or descendant, we have No.1, 2, 3, 5, and 6. So basically ang bag-o lang dri is No. 4- When the spouse has given cause for legal separation.  Again as we discussed before, in 919, the ground to disinherit a child when the child or descendant have been convicted of adultery or concubinage to the spouse of the testator and under art 920 also a ground to disinherit - When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator(4) but in 921 it has not been mentioned that  when the spouse has been convicted of adultery or concubinage with the child, parents of the testator, that is not mentioned in the provision but we have here when the spouse has given cause for legal separation. Now, what are the cause for legal separation? Art 55 of the Family Code.

 Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6)

Lesbianism

or

homosexuality

of

the

(9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent  without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)

So take note of those grounds for legal separation. They are also grounds for the disinheritance of the spouse. Can you disinherit your son because he is gay? Is this provided for in  Art 919? Could you say that being a gay is living a corrupt or an immoral life? Then you are bound to receive a lot of objections. So just because a person is a gay is not a ground if he is a child or a parent. But if the spouse or the husband is gay or if the wife is a lesbian, is that a ground to disinherit him or her? YES. So for example, if the spouse has an affair with the child or ascendant of the testator, can that be a ground for disinheritance? Ok so that could be considered as infidelity or perversion, so that is also a ground for legal separation. And take note that there is no more need of conviction. Like when a child is convicted of adultery or concubinage to the spouse of the testator, there is a conviction there, but here sexual infidelity or perversion does not need conviction, a mere preponderance of evidence is sufficient. If that can be proved by preponderance of evidence, then that can be ground for disinheritance.

 Attempt by the spouse against the life of the other. Again, in Art 921, No.1 When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants, so here conviction by final  judgement is required but in Art 55 of FC, as a ground for legal separation, when the guilty spouse attempted against the life of the innocent spouse, again here there is no need for conviction by final judgement because a mere preponderance of evidence is sufficient.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

Seangio vs Reyes- Actually this case falls under Art 919- So here the testator left a holographic will disinheriting his son Alfredo Seangio for a cause. The document is a holographic will which reads as follows: “  Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw  gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.  At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia. Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.” So the document was entitled Kasulatan sa pag-aalis ng mana. I think we already discussed this case when we were still in the essential elements and characteristics of the will. The first issue was WON this document is the last will and testament because it only contains a disinheritance? So as ruled by the SC even if the document contains only disinheritance, it is considered as indirect disposition. So now as to the ground of disinheritance, is there a ground based on the wordings of the will? Now, the SC said With regard to the reasons for the disinheritance that were stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code.  Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the

right to disinherit, and renders ineffectual disinheritance that may have been made. (856)

7 any

 What is reconciliation? Reconciliation is a mutual restoration(?) of the relationship between the testator and the disinherited heir after the incident. Both diba nagka-ayuhay, example katong heir kay nangayog pasaylo tapos gipasaylo pod siya sa testator, so there is reconciliation. For example pardon lang? father disinbherited his son because his son attempted against his life and the son was convicted and put into prison. What if the father one day, went to the detention cell and then he saw the condition of the son. And then told the son, gipasaylo na taka sa imong gibuhat pero ang anak dili siya mangayo og pasaylo, hilom diha pa, makagawas ra gani ko dri, bantay lang ka. Pero ang papa gipasaylo jud niya. So is there reconciliation? No that is pardon, unilateral. So if there is reconciliation, this will now erase the ground for disinheritance. In my example, if the son was not yet disinherited and then there is reconciliation , the father can no longer subsequently disinherit the son because there is already reconciliation. Halimbawa naman, there was already a disinheritance made in the will and subsequently there was a reconciliation, so that is reconciliation makes the disinheritance ineffectual. Halimbawa namatay ang father nga wala niya nausab ang will, in his will, there was disinheritance but actually there was already reconciliation, during the probate of the will and the distribution, the son  who was disinherited could actually say that I already had a reconciliation with my father. So that the disinheritance in the will is no longer effective. As long as the son can prove that he already reconciled with his father.  Article 923.  The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. (857) So under this article, we can say that a disinherited heir may be represented. For example, if the testator has a son B and B has a son X. For example B was convicted for an attempt against the life of his father and his father disinherited B. So when we sa disinherited, he was deprived of his legitime, he is excluded from the distribution of the

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

estate. But if B has a child X, the share of B will go to his son X. So a person who has been disinherited can be represented. So in the distribution of the estate, bisan pa nay na disinherit validly, maapil lang gihapon og bahin pero iya ng anak mukuha. SO that is what is meant by Art 923. Now for example, X is a minor. Under the FC if you still remember, if a child owns property and he is minor. Under the law, the parents shall act as guardian of the minor child and the properties of the minor child shall be under the administration of the parents. And the parents also has __ over those properties except that if the annual income of the property shall exceed Php50,000, the parents will have to post bond. But in the example, since B as the parent of X who is a minor was validly disinherited, he cannot have administration or usufruct over the property of his minor child, with respect only to the property nga nadisinherit si B. So this is the exception to the rule in FC that parents should administer. So knsa man karun mag administer? A guardian has to be appointed because the parent is disqualified. SEPTEMBER 30, 2013 PART 2  ADCJ

 Article 924. All things and rights which are within the commerce of man be bequeathed or devised.

Ok so what will be the subject of a legacy or devise? When  you say “bequeath” that is when you give a legacy “devise”  when you give a devise. Actually this article is the same  when we discussed the subjects of succession—property, rights and obligations—although legacy and devise walay apil ang obligation. What you can bequeath or devise are only properties and rights unlike inheritance na apil obligation.  Why obligations are not included? For example the testator says “I hereby bequeath my debt worth P10M to my bestfriend X” would X accept that? Of course not. The subjects are only things or rights as mentioned under Art. 924. Ok so what are those things and rights? Those which

8

are transmissible, not within the commerce of men, not res nullius, not res communes and of course remember the Organ Donation Act. Organs of the human body can be a subject of legacy as long as the conditions under the law are complied with.

 Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them.

This is what we call a sub-legacy or a sub-devise —legacy  within a legacy; a devise within a devise. For example: “I hereby give to A P1M, but A would have to give an allowance P1k/week to X”, so that allowance to X is a sub legacy. Of course, the sub-legacy should not also exceed the  value of the legacy. In that example, hantod na mahurot ang P1M? dili pud pwede. Only up to the amount of the legacy or devise. Who can be charged of a legacy or a devise? Legatee, devisee or even the compulsory heir. But insofar as the compulsory heirs are concerned, the value or the charge should not exceed the amount of the free portion given to them. So, pwede ka ma-charge ug sublegacy or sub-devise sa compulsory heirs kung natagaan siya ug free portion—over and above the legitimes because  you cannot charge the legacy with another legacy or devise. Intact jud dapat ang legitimes. So only in addition to the legitime can be charged with a legacy or devise.

 Article 926. When the testator charges one of the heirs  with a legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit.

This is easy to be understood. Pero halimbawa there are several legatees and there is a sub-legacy mentioned but the testator did not mention who has the obligation to

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

fulfill that sub-legacy so, legatee 1, 2, 3 gitagaan sila ug 50k, 100k, 50k respectively and there is this sub-legatee to be given 1k/month. Wala giingon sa testator kung kinsa kay 1,2,3 ang maghatag so they all shall bear the charge proportionally, so ¼, ½ , ¼ and sharing. So that’s the proportion.

 Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. So for example there is a legacy or devise, given by the testator: “I hereby give my house and lot to X” but prior to the distribution, naa pa man na probate, daghan pang proceeding, so the devisee cannot demand to deliver to him the house and lot. In the meantime some of the heirs, for example A and B, they possess the house and lot and then naguba ang balay or nagdeteriorate, even if A is only negligent, both of them shall be solidarily liable. This is another instance where the law provides for solidarity.  Although the innocent heir can claim from the one who is negligent, but as to the estate and as to the devisee, they are solidarily liable.

 Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind.

So for example, devise of a parcel of land. The estate has several lands. “I hereby leave to X, a parcel of land with an area of 1Ha and another heir should deliver it to the devisee.” For example si X, X is an heir and he is charged of the obligation to deliver the land to the devisee. There are several lands in the estate ha but the testator did not specify which land. So si heir karon ang mamili kung asa na land ang ihatag kay devisee. Now, if X gave this land in  Jacinto St. Davao City and later on, it turned out that the land has a problem and the devisee has been evicted or ejected from that land, what do we mean by “shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind.” ? meaning, another land has to be delivered because there are several lands in the estate and the testator himself did not specify which land to give to the devisee. So why did the heir give this

9

land in Jacinto St. Davao City na he could have chosen another land.

If the testator said “I here by give the 1Ha land in Jacinto St., Davao City to D and the heir should deliver that land to D, and D has been later on evicted from that land, there is no liability for eviction because it was the testator himself who said that that land should be delivered to the devisee.

In the first case, wala, indeterminate, so ang heir ang nagpili kung asa na land ang ihatag. There is liability for eviction but of course again, ang ihatag ni heir kato ra pung land belonging to the estate. Dili buot pasabot na in his personal capacity si heir karon ang mangita ug land kay devisee. It’s only from the estate.

 Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest,

Q: can the testator bequeath or devise something which is more or less than his interest or he does not have the interest in? this is the article that will answer. In this article, the testator owns only a portion of the property. for example, he owns the land in Matina. ¼ lang ang iyang ownership and then the testator said “I hereby give my land in Matina to D” so, pila karon ang mahatag kay D? for exampl ¼ lang ang kay testator ato kay co-owner lang siya. Pila? Of course the devise will be limited only to the interest of the testator of that land, so ¼. unless the testator expressly declares that he gives the thing in its entirety.

So, he can actually give more than what he has in the property. like, the testator has ¼ share in a parcel of the 10hectare land and then he said “I hereby give my 10 hectare land in Matina Davao City to D” but again testator only owns ¼ of that land. Technically his share is 2.5 hectare but he said “I hereby give my 10 hectare land” is that possible?  YES. The law says again unless the testator expressly

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

declares that he gives the thing in its entirety.So, how can  we give that? That would be equivalent in saying that the estate shall acquire the entire land so that it can be given to D. what happens if the other co-owners refuse to give up their share or they demand an expensive price of their shares what would be the obligation of the estate now? The estate has only to give the just value of the thing to the devisee.

 Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect.

So here, the thing devised or bequeathed did not belong to the testator when he made the will. I hereby give the land, or the TCT 14344 to B” and the testator did not know that he was not the owner of the land. He just thought that he  was the owner. So he gave that to B. so, what is the effect of that disposition? It is void. The testator cannot give what he does not own. Note, at the time he made the will, he has thought that he owns the land but in reality he does not own and he gave that to the devisee. But for example 10  years after he executed the will, and he wasstill alive that time, the land was donated to him and the testator said “uyyy… dili diay ni akoa? But anyway, thank you kay akoa na ni karon” and note that he previously made a will and he did not change that. He died with that will. Can B claim the land?

 Yes, under Art. 930, “xxxBut if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect.” Take note ha, in this article, the testator did not own the property, but he erroneously thought that he owned it.

 Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation

10

is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing.

So here, the same thing as in Art. 930 that the thing devise or bequeathed did not belong to the testator at the time that he made the will BUT HE KNEW THAT HE DID NOT OWN IT. Despite knowing that, he ordered that the thing be given to the legatee or the devisee that be acquired so that can be given to the devisee or legatee. So again, how can the testator give a thing which he did not own it? It shall be acquired from the owners but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing.

 Article 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent.

Take note ha that the thing bequeath or devised here already belong to the legatee or devisee at the time of the execution of the will. So, D own a parcel of land. Testator said “I hereby give to D a parcel of land covered by TCT 14344”, but again as I mentioned, that land already belongs to D. what is the status of the devise? It is VOID because  you cannot give to a person what he already own. So, that is  void.

 What if that land owned by the devisee had been mortgaged by him? And the will, the testator said “I hereby give to D a parcel of land covered by TCT 14344 and I order that the land shall be free from the mortgage”. Is the devise  valid? That land belongs to the devisee, when the testator executed the will, ang owner ng land kay si D, but only that it was mortgage. So, the devise itself is void because again  you cannot give to a person what he already own but

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

because the testator said that “the land shall be free from the mortgage”, meaning the estate shall pay the debt of D so that it can be free from mortgage. So, it shall be valid only to such an extent, only as to free the thing from the encumbrance or charge. Insofar as the devise of the land itself, it is void VOID because you cannot give to a person  what he already own.

 Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the  will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him.

In 1990, the testator executed a will giving to X a parcel of land. At that time, X was the owner of the land. In 1995, X sold the land and in 2000, the testator died. What is the status of the devise? When the testator died in 2000, X was no longer the owner of the land, but when the testator made the will in 1990, X was the owner of the land, so upon the death of the testator, because X was no longer the owner of the land and he was made the devisee of that land in 1990. Can X claim the land from the estate of the testator by virtue of the devise made by the testator? no. simple lang ha. You just have to remember na if the devisee or the legatee is the owner of the thing bequeath or devised at the time of the execution of the will, the devise or legacy is  void. There is no exception. Even if subsequently it was donated by the devisee, at the time of death of the testator, the devisee is no longer the owner of the property, so void  jud siya.

If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. In this paragraph, refers to the situation wherein at the time of the execution of the will, legatee or devisee is not the owner of the thing. Dili siya ang tag-iya, pero after the execution of the will, the legatee or devisee acquired the thing gratuitously.

So, in 1990, the testator made a will devising to X a parcel of land. X was not the owner of that land. In 1995, X acquired the land. So katong gidevise sa iya na land by the

11

testator, he acquired that in 1995 and then the testator died in 2000, that time si X gyapon ang tag-iya sa land. Is that devise to X of the land valid? IT DEPENDS. If he acquired the land in 1995 by gratuitous title, X can no longer claim anything more from the estate. He has no more claim. But if he acquired the land onerously, like he bought the land for 1M but earlier it was devised to him by the testator, upon the death of the testator, he can demand reimbursement from the heir or the estate for the value of  what he paid of the land. Kay dapat free man iyang pagkakuha sa land, iyaha mang gibayran so i-reimburse siya for the price which he paid.

 Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will.  Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee.

The testator owned a parcel of land 2 hectares. That land  was mortgaged by him. And then he made a will giving that land to B as a devise. The testator died. What is the obligation of the estate? Can B get the land? Yes because it  was devised to him. He can get that. Now, as I said, that land was mortgaged by the testator. can he give by inheritance that land which was mortgaged? Yes, because mortgage in the land does not lose the ownership over the land. That’s merely a collateral. Although again, if you fail to pay the debt the mortgagee has preferential right to get the land but we have to follow the procedure. It has to be foreclosed dili diretso kwaon sa mortgagee, but this is a different story. So, can the devisee get the land? YES. How about the debt? Naka-mortgage man siya? Unsa may obligation sa estate? The estate has to free the thing from the mortgage. Meaning, the estate has to pay the debt so that the land will go to the devisee without any encumbrance or charged. That’s if the thing is pledged or mortgaged to secure a recoverable debt.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

 What if during the lifetime of the testator, he posted that property as property bond because he was an accused in a case and then to secure his provisional liberty, he posted the land as a bond, but that same land he devised to B in his will and the testator died. Can B get the land? Yes.  Again, kung proeprty bond siya, dili man mawala ang ownership over that land. Ang lisod lang ana kung magescape ang testator kay ma-forfeit ang bond katong land kay makuha pero in this case namatay man ang testator. ok, for example, posted that as a property bond to secure the provisional iberty of his son. That same land was given to B as a devise. He died. Can the devisee own the land? Is the estate oblige to free the land from that bond? No, there is no such obligation.

the land shall go to the devisee but still it is encumbered by the fact that it is constituted as a property bond. That is the meaning of “ Any other charge, perpetual or temporary,  with which the thing bequeathed is burdened, passes  with it to the legatee or devisee.” So kato lang pledge or mortgage. Didto lang kutob ang obligation sa estate to free the thing from pledge or mortgage. Of course, unless the contrary intention appears. General rule: if the thing pledged or mortgaged to secure a recoverable debt was given as a devise or legacy, kung silent lang ang disposition, the obligation to free the thing from the mortgage unless ingon sa testator na dili na nako bayaran ang utang even if the devisee gets the land, that is still burdened with the mortgage. So, that was expressly stated otherwise, the presumption is the estate has the obligation to pay the debt.

 Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one.

12

In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. For example, what is a legacy of credit and what is a legacy of remission. For example the testator during his lifetime lend some money to X. The testator is the creditor and X is the debtor. Halimbawa ang utang ni X kay 400K. now in the will the testator said “if upon my death, X still owes me some money, I hereby consider that portion of the debt as remitted.” So that is what we call a legacy of remission.

For example the same thing, the testator has a receivable  worth 100k, and then he has a friend Y. in his will, he said “If upon my death, I still have receiv ables from X, I am giving those receivables to Y.” So si Y na ang bahala mag collect. Si X didto na magbayad kay Y. that is what we call a legacy of credit.

So, the law says “xxx   shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator.” no problem if wala jud nibayad si debtor so 100k jud iyang utang so if it is a legacy of remission, ang value sa iyang legacy is 100k. if it is a legacy of credit, ang value of legacy to Y kay 100k. assuming during the lifetime of the testator, X paid 20k. while the testator died, in year 2005, 80k na lang iyang utang. Sa legacy of remission, pila karon ang value sa legacy? Only 80k. because that is the only debt existing at the time of debt. Y also, in the legacy of credit, the value of the legacy is worth 80k. you cannot deman 100k because that is the only value of the debt at the time of death.

 Assuming, instead of paying, the debtor paid some 20k more. “ahh… remission diay, sige mangutang na pud ko.” So, at the time of the death of the testator, 120k iyang utang. How much is the value of his legacy? 100k. why not 120k? the 20k is considered as after acquired properties.  Also in the case of legacy of credit, you can only claim 100k because the 20k is an after-acquired properties unless it is expressly provided by the testator that additional credits after the exectuion of the will shall be also considered as part of the legacy.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

 Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death.

 what do you mean by “should bring an action”? does it include sending a demand letter to the debtor? Actully, the law contemplates JUDICIAL action. Mere sending of demand letter to the debtor will not revoke the legacy. This article is an example of revocation by confirmation of law. Even if it is not the intention of the testator but he brought an action/ filed a case against the debtor after he made the legacy of credit of legacy of remission, so the legacy is considered revoked even if there was no payment made.

The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge.  Take note: when a thing is pledged, you need a collateral for debt and when you pledge a thing meaning you have to deliver the thing to the pledgee. Pledge is a real contract; there is a need of delivery of the thing to the pledgee. Here there is a neclace or cellphone. A very expensive cellphone—NOKIA 5110. So nangutang si legatee kay testator and then as a collateral of that debt, the legatee pledged to the testator his NOKIA 5110 cellphone. Now, the testator said in the will “I hereby bequeath to L this particular cellphone” is that legacy valid which is in the first place was owned by L and  was pledged to secure his debt to the testator?

NO. that is void because you cannot devise or bequeath a thing which already belongs to the legatee or devisee. Does the legatee have any other legal consequence? Yes, it shall discharge the right of pledge. Ao, unsay mahitabo? Iuli sa estate ang cellphone to the legatee, if the legatee cannot pay, the estate cannot proceed against that cellphone, sell it at public auction and use the proceeds in payment of the debt. So ang utang ni legatee naa lang gyapon. It’s only the pledge that has been discharged. Meaning, kung dili makabayad si legatee, wala lang. it now becomes an unsecured debt. Only the pledge ha but not the loan itself. But the legacy of the cellphone is not valid because in the first place it is owned already by the legatee.

13

 Article 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones.

This is the one I explained to you before. Not included the subsequent debts only those existing at the time of the execution of the will. If there were payments, deduct those payments from the value of the debt but if there are subsequent debts, thy are not included in the legacy.

 Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares. In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise.

So, if X is also a creditor, naa siyay gipahulam sa testator na 1M and then in his will the testator also gives 1M also, will that be considered payment of his debt? No. meaning over and above pa to siya unless the testator says na pambayad to siya sa utang. For example niingon si testator na pambayad to siya sa utang, so naa siyay utang kay X na 2M and then in his will, he left 1.5M to X in payment of the debt, that will be applied to the debt, but X can also collect the remaining 50K.

 Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

14

So if the testator said “I hereby leave to X 1M in payment of my debt” when in fact he did not owe anything, so that is not due to X. if he said I hereby leave to X 1M in payment of my debt but ang iyahang utang lang diay kay 200k, so the excess is not due. Meaning katong 800k dili to dapat ihatag kay X. Unless the contrary intention appears.

debtor, he is not liable because general rule he has the r ight of choice. So even if he destroyed the car for example he is not liable, so even if the debtor destroys the car he is not liable he because he can still choose the other things, so the thing calls for alternative legacies or devises.

The foregoing provisions are without prejudice to the fulfillment of natural obligations. If that debt has already prescribed, and in his will the testator gave X 1M in payment of his debt, if it is delivered to X, can the estate recover that? No because the law on natural obligations  will now apply. Pero halimbawa wala pa nahatag, ang utang niya kay X kay 1M, and then in his will he said that his giving 1M to X in payment of his debt, is that demandable even wala pa nadeliver? The law on natural obligation authorizes the retention of what has been voluntary delivered. Wala pa man nabayad, but again if nabayad na siya, you cannot recover under the law on natural obligations.

 Article 941. A legacy of generic personal property shall be  valid even if there be no things of the same kind in the estate.

So the law in Oblicon respecting alternative obligations can be applied also in alternative legacies and devises.

 A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)

LECAGY OF GENERIC PERSONAL PROPERTY October 2, 2013 NOTE: Wala naka-start ang recording sa super start jud. Sorry   Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs. Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)

…is sufficient to extinguish the entire obligation. So in that case, if for example, one of the things is lost by reason by the fault of one who is bound to deliver obligation, the

“a car” –So that is generic, not specified. Assuming the testator gave to L a car. But there’s no car in the  estate. Is that legacy valid? It is valid according to Art. 941, even if there be no things of the same kind in the estate. How can the estate comply? A car should be purchased so that it can be given to the legatee. “I hereby give to D a parcel of land”—but there is no land in the estate, is that valid? The Second par. Says NO!  A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. So kung naay land in the estate, valid pero kung walay land the executor has no obligation to buy a land.  What if the devise is “I hereby give to D a parcel of land consisting 10 has covered by TCT no. 123456, located in Calinan Davao City “—so that’s specific but it does not belong to the estate. Will that devise be valid? IT DEPENDS. If the testator did not know that he was not the owner of that land, such devise is not valid but for example by any title he acquires that property subsequently, that devise will become valid. But even if the testator did not own that land but he knew that he did not own that land, so that would be valid, so  what will happen is the estate will get that land from its owner. If the owner refuses to alienate the property or

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

demands an excessive price, the estate will just have to give  just value of the land to the devisee. So because here, the legacy or devisee is generic, the obligation of the heir, or the executor or administrator who has the right of choice shall be to deliver the thing of MIDDLE QUALITY, not inferior and not superior. Taking to account of course the status of the person to whom the property is to be given, the purpose and also the capacity of the estate to give such property. For example, “I hereby bequeath to my niece a car for her to use on her wedding day” So unsa ma n nga car? So it depends on the circumstances.  Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a)

15

LEGACY OF EDUCATION The law says UNTIL THE LEGATEE IS OF AGE. So when does a person become of age? 18. So for example a legatee of education so that an heir may pursue a study in law. So until 18 lang? NO! So “or beyond the age of majority” in order that legatee may finish some professional, vocational or general course. And provided he pursues his course diligently. For example law school so beyond the age of majority, ok lang, basta kay ingon man diri until finish. Pero 4 years lang man ang law school diba? Unya times two naman siya, so would that legacy continue? Well there’s that phrase “provided he pursues his course diligently” So when you say 8 years diligent ba na? (*class: YEEEEESSS! ) Siguro 8  years gud, kung dili ka diligent nag undang naka   So it can be argued that it is diligently pursued. SUPPORT.

So that is self explanatory.  Article 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)

So for example the one to whom the choice has been given cannot make the choice, such right shall pass to his heirs, meaning the right to make a choice and once the choice has been made it is already irrevocable.  Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently.  A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. ( 879a)

During the lifetime of the legatee unless the testator provides otherwise.  What is the value of the legacy? According to the social standing and circumstances of the legatee and the value of the estate. So if during his lifetime the testator used to give the legatee support so that can be the basis unless it is already markly disproportionate to the value of the estate.  Article 945.  If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a)

So just remember here, when shall the estate be obliged to deliver the legacy? At the beginning of each period. If the legatee died his estate is not bound to return what he has received by virtue of that legacy or devise. For example montly pension. So for the month of January, So Jan. 1 palang ihatag na nimo tanan for that month. For example 30k, and then he died on the second day of Jan. Ofcourse his estate is not required to return the balance.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

16

 Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a)

testator, and transmits it to his heirs. (881a)

So meaning during his lifetime the testator owned a parcel of land but the usufruct of that land must be given to X for example. And the testator devised that land to D. So upon the death of the testator because the land is devised to D, it  would have to be delivered to D but the usufruct diba is given to X, so is the usufruct extinguished? NO. the legatee or devisee shall respect such right until it is legally extinguished.

PURE AND SIMPLE LEGACY OR DEVISE —Not subject to any condition, term or mode so it will pass on to the legatee or devise upon the death of the testator but of course since it’s a legacy or devise diba it is given by virtue of a will and as what we have discussed before, no will shall pass unless it has been allowed in accordance with the rules of court. So that will has to be probated first and only when the probate is granted and the will is allowed can the legatee or devisee claim the property in the will. But of course, his right starts not from the probate of the will but from the death of the testator.

Now remember the law on usufruct. GR: If it is silent upon the death of any party in the usufruct, actually it is extinguished but they can provide that it shall continue. So a contrary stipulation can be had. So in that case, that stipulation will subsist even after the death of the owner of the property and it shall pass on to the devisee. Remember what we discussed before under Article 934:  Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears.

The same rule applies when the thing is pledged or mortgaged after the execution of the will.

[So the estate has to free the property from pledge or mortgage.]

 Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee,  who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a)

 Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee.

 We are talking here of a specific and determinate thing being given as a legacy or a devise. The law says the thing shall pertain to the legatee or devisee upon the death of the testator because that is the time when there is already transmission of ownership.

One such example is a usufruct.even if the property is given a s a devise, subject of a usufruct and the testator dies, the usufruct shall continue, until it is legally extinguished.

So for example there is a parcel of land and it has growing crops or fruits, that growing crop or fruit is included in the legacy or devise but if at the time of the death of the testator that has already been cut or harvested, can the legatee or devisee claim that fruit? NO MORE! The law says growing fruits.

 Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the

Or unborn offsprings of animals, the land have cows, cattle of course upon the death imoha na na xa because and legacy is specific. What if buntis ang cow during the lifetime of the testator nya nanganak na xa after the death of the testator, kinsa ang tag iya atong anak? LEGATEE

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

because unborn, when you say unborn, unborn at the time of death. Kay kung nanganak xa during the lifetime of the testator walay question sa ESTATE jud xa. If nabuntis ug nanganak xa after? LEGATEE by right of accretion. Or uncollected income but not the income which was due and unpaid before the latter’s death. For example the devise is of a specific building, the building is being leased by several lessees. So during the lifetime of the testator there were already accrued and demandable rents but not  yet paid for example rent for one year. And then the testator died. So the building will go to the devisee because it was devised and because there are lessees, naa gihapoy rentals but still those lessees did not yet pay the rentals until after 1 year from the death of the testator. So after 1  year nagbayad karon ang lessees ug two-years worth of rental, who owns the rentals? You have to make a distinction. Those which became due during the lifetime of the testator that belongs to the estate of the testator. Those  which became due after the death of the testator that should belong to the devisee. NOTE: those rentals which accrued before the death of the testator is under the classification of After Acquired property. Thus, it belongs to the estate. The last par: the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a)—Because he is now the owner.  Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a)

Here the bequeath is not specific and indeterminate thing. Generic lang ang pagka.describe. So for example “I hereby give a parcel of land consisting of 10 has to D. and there is a land there are several parcels of land in the estate. So it is a valid devise. Now, because the testator did not specify  which land, it shall be the executor or the administrator or the heir charged who will choose which of the several land shall be given to the devisee. Now prior to choosing which land, of course we have no idea which land should be given, so eventually for example the executor chose the land in calinan davao city and it so happens that such land even

17

before the delivery, after the death of the testator but before the delivery to the devisee, that land had fruits  which were harvested, can the devisee claim those fruits harvested after the death of the testator but before delivery to him? GR: NO! because it is generic or indeterminate. The right of such legatee or devisee over such property (the fruits) shall start only from the time it is chosen by the executor, etc. UNLESS the testator would specify that the fruits and interest which accrued in the property from the time of death shall likewise pertain to the legatee or devisee.  Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. (887a)

So this article gives us the order of priority in satisfying the different legacies and devises if the estate is not sufficient to pay off all these legacies and devises. 1.) Remuneratory legacies or devises—so those which are rewards for services given to the testator. 2.) Legacies or devises declared by the testator to be preferential—kadtong iyang gi.ingon nga PREFERRED. 3) Legacies for support—support contemplated in the family code. Excluding education from the term support. 4 ) Legacies for education; 5) Legacies or devises of a specific, determinate thing which forms a part of the estate;

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

6) All others pro rata—if legacy or devise is generic. (*maam writes on the board, some amounts for an example, dili madunggan ang amounts.sorry   basta ang point sundon ang pagkasunodsunod) CF: Article 911  Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows:

(1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be  paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

In Article 911, the free portion is not sufficient to satisfy all donations intevivos and all legacies and devises. First is between legacies and donations, donations are preferred.

18

testator. These two conditions must be present because even if there are donations made intervivos but there are no compulsory heirs there is no need of charging donations to the free portion. Why? Because there is no need of collation. Collation is required only if there are compulsory heirs and donation intervivos. Because we have to preserve the legitimes. So if there are compulsory heirs but there are no donation intevivos then we follow article 950.  Article 951.  The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in  which it may be upon the death of the testator. (883a)

 Article 952.  The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value. Legacies of money must be paid in cash, even though the heir or the estate may not have any. The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a)

 Just remember here that it must be the very thing that is delivered. As a GR you cannot just pay in cash if the legacy is of a car you have to deliver the car, if it is money ofco urse it should be delivered in cash, even if the estate does not have cash. So how Can the estate derive cash? By selling properties. First the personal properties and then later the real properties.

Between two or more donations, those made earlier are preferred.  After those donations, if there are preferred legacies, then kato sila ang isatisfy. Kung naa pay mabilin, all others pro rata.

 Article 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a)

But here, lahi atong priority, so when do we apply article 911 and when do we apply article 950? REMEMBER: we only apply Art. 911 if there are compulsory heirs and there are donations intevivos made by the

So there has to be authority, either from the heir charged or from the executor or administrator authorized by the court to deliver. Again as I mentioned before since we are

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

19

talking about legacies or devises which are provided for in the will there has to be a prior probate of the will before things can be delivered.

Here there are two or more legacies or devises, the same rule as before, you cannot accept the gratuitous and renounce the onerous.

 Article 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous.

 You can accept BOTH  You can renounce BOTH  You can accept the onerous and renounce the gratuitous BUT you cannot accept the gratuitous and renounce the onerous.  

Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)

 We are talking here if a single devise or legacy and it is partly onerous and partly gratuitous. For example, two story apartment, so sa ground floor there is a charge that  you have to maintain it every month. Sa second floor there is no such obligation. Now the legatee or devisee cannot  just accept the second floor dili ang first floor. He cannot do that. But he can repudiate BOTH. But if he should accept, he should accept BOTH.



If both legacies or devise are gratuitos, walay problema kung irenounce nimo and isa or renounce both or accept both. EXCEPT if the testator should say that you should accept both.

So even if both legacies are both gratuitous or both are both onerous if the testator says they are inseparable then  you choice would only be to accept both or renounce both.

Compulsory heir who is at the same time a legatee or devisee may: Now can he accept the onerous and not the gratuitous? Based on the wordings of Art 954 there is no such prohibition. What is prohibited? Only Accepting the gratuitous and repudiating the onerous. The same thing goes for the heirs of the legatee or devisee who died.

 Article 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both.  Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or  waive or accept both. (890a)



 

 waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or  waive or accept both.

 Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a)

In this article you will see that intestacy is the last resort. So remember the acronym here ISRAI. First if there is an instituted heir or there is a legatee or devisee give the thing to them. If he cannot accept for some reason if there is a substitute then give to the substitute. Now if there is no substitute and the right of representation is proper (we say “if proper” because the right of representation will be proper only in so far as the legitime is concerned or in so far as the entire share in legal succession) So if proper sa

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

representative, if dili proper then we go to the next accretion. Simply stated, there can be accretion in two or more heirs are instituted to one inheritance. And if accretion is not proper then the last resort would be intestacy. So that portion shall go to the legal heirs of the testator.

 Article 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had; (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance  with the provisions of article 928. (869a)

THIS IS AN IMPORTANT PROVISION!!!!

So article 957 talks of revocation by operation of law of the legacy or devise. NOTE: these refers to specific things.

1. TRANSFORMATION-- If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had;

“I hereby bequeath to B my ring” subsequently mga 2 years after the execution of the will, the testator had the ring melted and he made it into a pair of earrings. And then the

20

testator died. Can B claim the earrings? No because of transformation.

2. ALIENATION--( 2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

So the testator might have alienated the thing by donation or sale, so for any title subsequent to the legacy or devise. So for example “I hereby divise my land in calinan davao city to B” so a specific land was devised. Now 2 years after the testator sold the very same land to X. SO what happens to that devise? Can B claim the land? NO, by the subsequent sale or donation or any other kind of alienation by the testator of that very same property given as a devise or legacy by operation of law that legacy or devise becomes  void.

For example in 1990 the testator devised a specific land to X and then in 1995 the land was sold to B. and then subsequently in 1999 the sale to by the testator was declared null and void because maybe there was absence of consideration or prohibited by law . So naa nampud ang land sa testator. Then the testator died in 2005. Can the devisee claim this land? NO. NOTE: with the same facts except that in 1995 the testator filed a case for annulment of contract of sale on the ground of vitiated conset. Can X claim the land? YES because here the alienation made by the testator was actually involuntary because his consent was vitiated. SO the alienation referred to in article 957 should be  VOLUNTARY. If it was involuntary like it was foreclosed and sold to public auction it is also considered as involuntary. SO it will not cause the revocation of the legacy or devise.  Another, ever if the sale was voluntary, same situation above but in 1995 the testator sold the land to B. the sale  was pacto de retro and true enough he was able to

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

repurchase the land. Can X claim the land? YES because by reserving his right to repurchase the land the law presumes that the testator really intended to give effect to the devise or legacy. NOTE: if there is no right of repurchase but the testator bought the land again. Can X claim the land? NO. because it was an absolute sale.

3. LOSS OF THE THING BEQUAETH-- If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault.

Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance  with the provisions of article 928.

 Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n)

MISTAKE IN THE NAME-you can use here the rules in the interpretation of wills and also the rules in resolving an intrinsic or extrinsic ambiguity. So as long as it is possible to indentify the thing then the devise or legacy will be effective.

 Article 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree. (751)

So here the disposition is in favor or the testators relatives, so it is a general or collective disposition, who are these relatives entitled? Here we follow the rule on PROXIMITY. They do not have the right of representation. This is applicable to the free portion. We also do not follow the rule that those who are in the ascending line are preferred to those who are in the descending line. BAsta kay kung kinsa and dool basta parehas sila ug degree whether

21

descending or ascending parehas sila nga mag inherit. Also there is no application of the rule that those in the collateral line are favored over those who are in the direct line. Again remember lang proximity. Mao lang na xa ang rule that applies in article 959.

 What if the disposition is” in favor of those who are entitled thereto”? do you follow article 959? NO! so in that case it refers actually to the legal heirs so we follow the rule on legal succession even if it is testamentary hah. We are limited in legal sux, kay diba ang heirs if collateral line is only up to the 5th degree. So kung walay collateral relatives ug wala pud in the ascending or descending line then the property will go to the state.

Note also na kung ang disposition is limited to the relatives of the testator’s spouse dili mag apply ang article 959.

CHAPTER Legal or Intestate Succession

3

SECTION General Provisions

1

NOTE: there are provisions here that are no longer applicable.

Ok. So legal succession, actually in the civil code there is no definition of what is legal or intestate succession. But the law only enumerates the instances where there is legal or intestate succession.

 Article 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one  which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

(Actually ang gibasa nalng n imam ang provi balik, no discussion)

 Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)

So as we discussed before, all compulsory heirs are legal heirs, so we have the legitimate heirs and the descendants, in their absence legitimate parents and ascendants so we have the surviving spouse and the illegitimate children. So they are all legal heirs if the testator left no will. But not all legal heirs are compulsory heirs. Why? Because in addition to them we also have other relatives who are considered as legal heirs we have brothers and sisters, uncles and aunts, nephews and nieces. So relatives within the 5 th  degree of consanguinity are considered as legal heirs if that is in the collateral line but if it is in the ascending or descending line, direct there is no limitation as I said.so pwede nga muabot ug 10 degree pero that is already physically impossible. In the absence of both relatives then we have the state.

22

RULE ON PROXIMITY- the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.  Actually this concept is also applicable in the case o f testamentary succession with respect to the legitime. So the rule on proximity with the exception of the right of representation. With that the children excludes the grandchildren, if all the children are alive but if some of the children predecease the testator and they have their own children. Then their children will have the right of representation.

GR: Relatives in the same degree shall inherit in equal shares EX: 1.) Article 1006 with respect to relatives of the full and half blood—because those full blood inherit more than those  which are half-blood even if there are of the same degree. 2.) Article 987, paragraph 2, concerning division between the paternal and maternal lines—recall that in the ascending line we always divide by the line even if they are in the same degree. 3.) when the right of representation applies. —note that although theoretically the children og ht e heir who predeceased are elevated to the status of the heir but their shares are not equal to the share of the brothers and sisters of the person they represented. 4.) Inheritance of legitimate and illegitimate children.

Succession 10-7-1st part SUBSECTION 1. Relationship

 Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines. (912a)

 Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915)  Article 964. A series of degrees forms a line, which may be either direct or collateral.  A direct line is that constituted by the series of degrees among ascendants and descendants.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

 A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a)  Article 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. (917)  Article 966.  In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the greatgrandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with  whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle,  who is the brother of his father, four from his first cousin, and so forth. (918a)  Art 963 to 966 tell us how to compute the number of generation. For example parents to child? How many generation? One. Parents to grandchildren? Two. Brothers and sisters? Two. Why? Halimbawa parents have children  A, B C and D. SO from D, how many degree to A? Two. Because From D to the common ascendant, their parents then go down to A. Nephews and nieces? Three. From you, to the parents, to brothers or sisters, to nephews and nieces. These is what is explained in 963 to 966, how to compute the proximity of the relationships determined by the number of generation. Each generation forms a degree.  Article 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons  who have the same father, but not the same mother, or the same mother, but not the same father. (920a) How do you know WON your brother is your full blood brother? We have same parents, the same father and the same mother. Half blood? We have either the same father, but not the same mother, or the same mother, but not the same father. When we say halblood, do we mean

23

illegitimate? Not necessarily because for example, the father have been married before and have children, then the spouse died and then he remarried and then he have another children. So those brothers and sisters to the 1 st marriage are half blood brothers and sisters but they are all legitimate.  Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation  when it should take place. (922)  Art 968 talks about incapacity or __ or repudiation. Let us illustrate. For example. There is a decedent with 3 children,  A have own children X and Y, B has also child Z. So under the rule of proximity, if the decedent died, he will be survived by his children A, B and C, and they will all inherit in equal share. X,Y and Z shall be excluded. If for example A is incapacitated to inherit, because he was convicted of an attempt against the life of his parents, also a ground for disinheritance, also a ground for incapacity.  What will happen to his share? Remember, if it is incapacity, predecease, disinheritance, the heir who is incapacitated or disinherited can be represented. So if the estate is 1.2M, each should get 400k. But since A is incapacitated, his share shall go to X and Y. Now, what if instead of incapacity, A repudiated his share.  What will happen to his share of 400k? It shall go or accrue to his co-heirs namely B and C. Nothing will go to X and Y. It is because in repudiation, an heir who repudiated cannot be represented.  Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923) So in my previous example, if A repudiated his share, it will accrue to B and C because he cannot be represented. What if A, B and C repudiated? Who shall be the heir of the decedent? And how much shall he receive? Since they cannot be represented, so the heirs next in degree shall be the heirs. Who are in next degree? X, Y and Z. So they will inherit in their own right. And how would they divide the estate? Divided by 3, each will share in his own right.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

If for example, C has own child also, M. this time, all of them, X, Y, Z and M shall divide equally the inheritance in their own right.  Assuming, not repudiate, but A, B and C predeceased the decedent, so X, Y, Z and M shall represent their parents. SO their inheritance would be by right of representation. How do we divide the estate? Divided by 3, the number of person represented. SUBSECTION 2. Right of Representation  Article 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a)

24

For example, A,B and C are brothers, and their children  were X,Y and Z. If for example, they have another brother D  who is the decedent. D died, and his only heirs were his brothers A, B and C. The children of brothers are excluded under the rule on proximity. But for example, A predecease the decedent. So X and Y are alive, together with B and C. Insofar as the decedent is concerned X and Y are his nephews and nieces. So, the nephews and nieces can represent their parent A, who is the brother of the decedent.  Assuming, namatay na pod ni si X og Y pero naa na pod silay mga anak O an P. So patay na si A, X, and Y, si O og P na lang. Bali apo ni D si O og P, grandnephews and grandnieces ni decedent. Can O and P represent? No, because right of representation shall apply only up to nephews and nieces.

Ok, so that is the meaning of the Right of Representation.  Article 971.  The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n) So in my previous example, A predecease the decedent so his children X and Y shall represent him. They will now be raised to the degree and status of A, assuming X and Y are alive, they will inherit together with B and C. Take note, that by represenating A, X and Y do not inherit from A, they inherit from the decedent himself. That is  why their qualification to inherit will be measured based on their relationship with the decedent not with A.  So, if they are incapacitated to inherit from the decedent himself, even if A died, they cannot inherit.  Article 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925) So take note, we already discussed this before that right of representation takes place in the direct descending line not in the ascending line. This is based on the principle in Succession that Love always descend. In collateral line, right of representation is proper as long as again, it is descending up to nephews and nieces, so grandnephews and grandnieces are not included.

 Article 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. (n) So I already explained this before. The representative inherit not from the person represented but from whom the person represented succeeded.  Article 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a) If for example the decedent have children A, B and C and grandchildren X, Y, Z and M. Assuming that A predeceased the decedent, and he is survived by his own children x and  y, as we discussed, we’ll divide the estate by 3. So 400k for  A, B and C. Since X and Y only represented A, they will divide the share of A, so each( X and Y) will get 200k. So the inheritance of X and Y is called per stirpes, they shall divide the share of the person represented. Their share cannot exceed that of the person represented. How about B and C? Their share are called per capita, in their own right.  Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927)

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

Take note of that. We are talking here of the inheritance of nephews and nieces. So assuming again that A, B and C are brothers of D, decedent. X, Y, Z and M are the children of brothers of decedent. So kung si A lang ang namatay, he  will be survive by his children X and Y. But assuming all A, B and C died, survived by their children, mga nephews and nieces ni D. How do we divide? The law says, in equal shares, like per capita. So we divide the estate by 4. Remember that because we have a different rule when it comes to grandchildren. Kung grandchildren, If all of the children of the decedent died ahead and survived by their children, the inheritance of the children would be by right of representation, it  would not be per capita but per stirpes. So sa succession better pa ang position sa grandnephews/nieces who are in the collateral line kesa grandchildren, because grandchildren always inherits by right of representation as long as there is no repudiation. Because if there is repudiation, that is when they inherit in their own right, that is per capita.  Article 976. A person may represent inheritance he has renounced. (928a)

him

whose

For example, the decedent, D has a child B and B has a child Z. For example B died ahead, so predeceased, pagkamatay ni B, kinsa gani ang heir? Si Z ang iyang anak. Not D coz he is excluded. Descendant is favoured over ascendant. Z repudiated his share in B’s estate. Example the D died, ang nabilin iyang mga anak, A and C, because as I’ve mentioned, B died ahead. So ang nabilin, Z ang iyang apo. So can Z now represent B? Yes. Because a person who repudiated his inheritance can represent the person whose inheritance he has repudiated.  Assuming nga naa pay anak si Z nga si R katong time nga namatay si B, Z cannot be represented by R. Why? Because again, a person who repudiated his inheritance cannot be represented. But when D died, the grandfather of Z, and as I’ve said B already predecease, so Z now, who repudiated his share to his father’s estate may represent him to his grandfather’s estate. Again, a person who repudiated his share cannot be represented but he can represent.  Article 977.  Heirs who repudiate their share may not be represented. (929a) So we already discussed that before.

SECTION Order of Intestate Succession

25 2

In Intestate succession, who are legal heirs? Remember the compulsory heirs, the legitimate children and descendants, in their absence the legitimate parents or ascendants. We have the surviving spouse and we also have the illegitimate children. th

 And then we have the collateral relatives up to the 5 degree of consanguinity. Who are these collateral relatives? Brothers and sisters, uncles and aunts, nephews and nieces, up to the 5th degree of consanguinity. The counting starts from the decedent. Kung direct line, there is no limitations. th In the absence of collateral relatives up to the 5  degree of consanguinity and relatives in the ascending or descending,  we have the STATE, as a legal heirs. So those are the heirs of the decedent. So under the legal succession, we follow the three basic rules, which we already discussed in reserve troncal: 1.

The nearer relatives excludes those who are far(rule of proximity),

2.

Those who are in the descending line are favoured over those in ascending line,

3.

Those who are in the direct line are favoured over those who are in collateral line.

SUBSECTION 1. Descending Direct Line  Article 978.  Succession pertains, in the first place, to the descending direct line. (930)  Article 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.  An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a) Legitimate children as long as they are legitimate, even if they came from different marriages, they have the same right. They are all entitled to the same share. An adopted child, based on Domestic Adoption Act, has the same successional right as a legitimate child. So, he shall be considered as legitimate child for the purpose of succession.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

For example, the decedent, has child B and B has adopted child Z. Insofar as Z is concerned , he is considered as legitimate child of B. So he will enjoy same as the legitimate child.  Assuming B predecease the decedent(D), so he is survived by Z. So subsequently, D died, survived by his other children A and C and Z, the adopted child of B. So who are the legal heirs entitled to inherit? A and C. How about Z? Can he not represent B, since we said that an adopted child may inherit like a l legitimate child? No. For the purpose of representation, an adopted child cannot represent his adopter because the fiction created by adoption is only existing between the adopter and the adoptee. Sa ilaha lang nang duha. It does not extend to the relatives of the adopter, like his parents for example.  And take note, that in Right of Representation, the representative inherit not from the person represented but from the decedent himself, from whom the person represented should have succeeded. And we also discussed that, the capacity of the representative to inherit shall be measured in terms of his relationship with the decedent. So here walay relationship at all.

representation. So per stirpes, divided by 3 and whatever  would be the share of A shall go to X and Y. “if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions” -  meaning if any one of the grandchildren have died and he has several heir, for example, Z died, the share of Z as representative would be divided by his heirs in equal portion. Remember ha, if parents predeceased, children inherit by right of representation, but if we are talking of nephews and nieces, they will inherit in equal shares.  Article 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by article 895. (n) Sa legal succession, and even in testamentary succession, illegitimate children inherit half of the share of one legitimate child. Illustration (Note: based ni sa akong kopya sa illustration ni Ma’am kay mas dali sabton): Intestate Succession: Art 983 Estate=5,000,000 (5M)  Assumption: 2 legitimate; 1 illegitimate child

 Article 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. (932)

Distribution: legitimate children= 2M each

 As long as the child is the child of the decedent, under the rule on succession, the descendants are preferred over the ascendants. The computation would be per capita.

How? Use algebra

Illegitimate child= 1M

Let x= 1 illegitimate child 2x= 1 legitimate child

 Article 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. (934a)

2x + 2x + x = 5M

I already explained that.

 X=1M refer to the distribution above

 Article 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933) The grandchildren and other descendants shall inherit by right of representation. As we discussed before, if A predecease the decedent and survived by his own children  X and Y. X and Y shall represent. If for example, for example all, A, B and C died survived by their own children, the inheritance of the grandchildren would be by

26

5x/5=5M/5

Still intestate, but this time assuming: Estate= 14 M; 2 legitimate; 14 illegitimate child Distribution: Must follow testamentary succession.  Why? Legitime of legitimate children will be impaired if computation of intestate succession will be followed. Look at the illustration below. Let x= 1 illegitimate child

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

2x= 1 legitimate child 2x + 2x + 10x = 14M 14x/14=14M/14  X=1M So if this would be the computation, distribution would be: 2 legitimate children= 2M each while each illegitimate child=1M? No, their legitimes are impaired. Now remember, even if it is legal or intestate succession,  we have to preserve the legitimes of the compulsory heirs especially the legitimate children. Kanang mga legitime nga dili pwede magamay (Parents, spouse and legitimate children). Ang sa illegitimate children, pwede na siya magvary. So take note of that, even if it is a legal succession and we are not supposed to concern about the legitime, BUT IN ALL CASES, THE LEGITIME OF THE LEGITIMATE CHILDREN SHOULD NOT BE PREJUDICED. That is another protection given by law for the legitime of the legitimate children. So in the example, if magkulang na ang legitime sa legitimate children, we follow the computation of the testamentary succession. So the estate, divided by 2 and the remaining free portion shall be divided equally among the illegitimate children. So 7M divided by 10. Illustration: If Testate, the legitimes of 2 legitimate children would be: Estate: 14M/2 7M/2(no. of legitimate children) 1 legitimate child shall get 3.5 M or total of 7M 10 illegitimate children shall divide the remaining free portion.

Octobr 7, 2013 Part II

 Actually we have the Family Code insofar as the succession to the estate of an adopted child is concerned. We will just discuss separately succession by an adopted child to the estate of an adopted child.

27

Let’s proceed. Ok, I already explained to you that the order in legal succession. Who are these legal heirs. Now insofar as the ascending direct line is concerned, the computation again if only 1 class of heir in legal succession survives like: all illegitimate children or all legitimate children only, or legal spouse onlyor parents only, only the brothers or sisters, if there is only 1 class, the entire estate will go to them. Unlike in testamentary succession na legitimate children ½ , surviving spouse ½ and there is a qualification ¼ or ½ but in legal succession kung 1 class lang jud ang nabilin, all of them will inerit the entire estate. For example in Art. 985, as we all know, legitimate parents and ascendants only inherit in the absence of legitimate children. Their inheritance is dependent on the absence of legitimate children and descendants. In accordance with the rule that those which are in the descending line, are favored over those who are in the ascending line.

Now for example under Art. 986, only the father and ghe mother survive, all of them, the 2 of them shall get the entire estate dividng that in equal shares. Now for example, only the mother survived, but the grandparents in the paternal line also survived. Who are the heirs of the decedent? Katong gi-explain nako before di ba, the mother excludes the grandparents. Under the rule on proximity. There is no right of representation in the ascending line. So all will go to the mother. If the mother also dies and survivors are grandparents of both sides, then we divide it by 2. ½ to the paternal line and other ½ to the maternal line. For example the grandmother in the maternal line died already, so grandfather na lang sa maternal line ang nabilin and kumpleto pa sa paternal side, how do you divide the estate by 3? NO, by 2. ½ to the maternal and other half to the paternal. Kung kinsa man ang nabilin sa maternal siya na lang isa ang magdawat ato. That is what  we had discussed before in testamentary succession.

SUBSECTION 3. Illegitimate Children  Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

 We now go to the illegitimate children. Of course, they are compulsory heirs and they are also legal heirs. Their share, if compared to legitimate children ½ of the share of 1 legitimate child. Now, under Art. 988 as I mentioned, if there are no other relatives, only 1 class survives like only

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

the illegitimate children survive, they shall succeed to the entire estate.

 Article 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation.

So the same thing. For example: we have D(decedent)  A,B,C are his children and A has X, B has Y and Z, and C has M. all of them are illegitimate children. So under Art. 989, assuming A predeceased the decedent, A is an illegitimate child, he predeceased his parent D and survived by his child X. of course, the child of A (si X) can represent him together with B and C.

 Article 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants,  who shall inherit by right of representation from their deceased grandparent.

Ok, same example, assuming B, an illegitimate child of D, has children Y (illegitimate) and Z (legitimate). Buhi pa si A and C patay na si B. Can Y and Z represent B in the estate of the latter? Can Y represent? YES. Can Z represent? YES.  Will it matter that Y is an illegitimate and Z is legitimate? NO, because Art. 990 says “xxx to illegitimate children shall be transmitted upon their death to their descendants xxx”this means that the law does not distinguish a legitimate and an illegitimate descendant. It does not matter whether the descendant is legitimate or illegitimate.

 Article 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

I already explained this before.

28

 Article 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

This article is very important. This is known as the IRONBAR RULE in succession. This article sets a bar or separation between the legitimate and the illegitimate family because the law recognizes and presumes that there is a natural animosity the exists between the legitimate family and the illegitimate family. For one, the illegitimate family is the reminder of sin, a blemish broken in life. For the other side, they look the legitimate family with envy.

NOTE: Iron bar rule applies only in legal succession. In testamentary succession, if you institute the illegitimate sister or brother as an heir, then there is no problem. They can inherit. Only in legal succession. Ex: Decedent has 2 children: A (legitimate) and B (illegitimate). A has 2 children: P (legitimate) and Q (illegitimate) the same thing with B: R(legitimate) and S(illegitimate). 1.

Can A and B inherit from the decedent?   Yes, because the children, insofar as the children are concerned regardless whether legitimate or illegitimate, you are considered as a legal heir.

2.

 Assuming A and B both predeceased the decedent. The survivors are: P,Q,R,S. who would now be entitled to inherit from the decedent as represenatives of their parents?  Can B, an illegitimate child be represented by  X (his legitimate child)? YES.  How about S? Yes. Art. 990. 



Let’s go to A, can P represent A? YES because P is a legitimate granchild of the decedent. Can Q represent A? NO, because of the prohibition under Art. 992.  An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother. Insofar as A and the decedent are concerned, they have a legitimate

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

relationship. Decedent is a legitimate relative of A, the father of Q. that’s the difference between Art. 992 and 993. NOTE: Insofar as R is concerned, dili mag-apply kay in the first place, insofar as B is concerned, B is his illegitimate relative. So S, even if he is illegitimate, he can represent B because the latter is an illegitimate relative of the decedent. Illegitimate gyapon. For example we have an illegitimate brother or sister, the same thing. If for example you are survived by legitimate sister and illegitimate brother, from your estate your illegitimate brother cannot inherit. Only the legitimate sister. Kung halimbawa, wala jud moy legitimate na heir tapos tanan nimong nahibilin kay mga illegitimate na brothers  wala nay lain. Wala kay mga cousins na. can they inherit? No. To whom does it go? To the State.

DIAZ VS. IAC There was a grandparent and he has a legitimate child and his legitimate child predeceased him leaving his illegitimate child. Can the illegitimate child represent him? NO, because of the iron bar rule.

SUNTAY GR No. 183053  June 16, 2010

In this case, the grandparents had a legitimate son Emilio and then Emilio had children: Emilio II ( legitimate) and Emilio III (illegitimate). Here, Emilio I predeceased his parents. The grandmother died. Supposedly ang heir ni grandmother kay si grandpa and si Emilio I pero predeceased man siya. So we now have Emilio II and Emilio III. Now the grandfather filed a petition to include Emilio III as a co-administrator in the estate of grandmother. Now, that petition was opposed on the ground that Emilio III is an illegitimate child of Emilio I, so he cannot represent his father in the succession in the estate of his grandmother because insofar as Emilio III is concerned, he is an illegitimate grandson, he cannot inherit by legal succession in this case. But in this particular case, since birth, Emilio III and his sister were taken in the home of their grandparents. They cared for these children like their own. They showered them with care and attention without any discrimination from the legitimate grandchildren. So, there is actually no animosity. Like a normal legitimate grandchild. And note that when the grandmother died, the grandfather adopted Emilio III. Will Art. 992 apply insofar as Emilio III is concerned? NO. 1.

Because Art. 992 is premised on the presumption that there is a natural animosity between the legitimate family and the illegitimate family. But in this particular case, these children were treated like legitimate children by the grandparents. There is no discrimination whatsoever.

2.

Emilio III was adopted. By adoption, he became not just a grandchild but a son by legal fiction of the grand father.

DELA MERCED VS. DELA MERCED  We have the decedent (D) and then A and Q. A is a legitimate child of D. Q is an illegitimate child of A. now, the decedent died and then A aldo died. When the decedent died, his properties went to his legitimate child A.  when A died survived by his illegitimate child, Q, is Q entitled to inherit considering that the properties composing the estate of A came from the decedent who is a legitimate child of his father. Can he inherit? Yes, because this is not a case of representation. He is not representing  A. he will be inheriting in his own right as an heir of A, his father even if all the properties came from his grandfather, but that’s not the one contemplated in Art. 992. So, magmatter ha kung kinsa ang unang namatay. Kay kung una namatay si A, in that example and followed by the decedent, then Q will not be able to inherit anything because ehe cannot be allowed to represent his father.

29

3.  With respect to the petition questioned, he was  just appointed as an administrator not to inherit from the estate of the grandmother. Being an administrator, you will not inherit. You will just administer the property.

NOTE: Halimbawa kung wala jud niy adoption dire na case, would you think the same gyapon ang answer

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

sa SC? Dili ta kaingon kay wala naman tong animosity. In that case the SC said, na walay animosity so Art. 992 will not apply, but aside from that reasoning naa pay laing reasons gi-consider ang court.

 Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike.

Here, the survivors are the illegitimate parents. If you’re an illegitimate child, your parents are your illegitimate parents. So if you don’t have your own children and they  will survive, they alone inherit the entire estate. If there are 2, then they share alike.

 Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate.

Now, will the parents of an illegitimate child succeed together with the spouse of an illegitimate child? YES they can, but in default of the father or mother, then the spouse succeed to the entire estate of the decedent.

If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half. If there are brothers and sisters surviving together  with the spouse, will the spouse exclude the brothers and sisters? NO, the spouse will succeed together with the brothers and sisters. How about illegitimate children surviving with the brotehr and sisters of the deceased? So the deceased had illegitmate children and brothers and sisters, so when he died, this person survived him. Who will inherit? Will the illegitimate

30

child exclude the brothers and sisters of the decedent? YES. So, even if the brothers and sisters are legitimate but they are excluded by the presence of illegitimate children.

SUBSECTION 4. Surviving Spouse Heirs of Spouses Remedios R. Sandejas, et al., vs. Alex  A. Lina G.R. No. 141634 February 5, 2001 This is just an illustration on how to compute the conjugal share and the hereditary share of the surviving spouse. If a person dies leaving properties co-owned with his ir her spouse, before you divide that to the heirs, liquidate first the conjugal partnership or absolute community. Kapag madeliver na nimo ang share sa spouse, only that share of the deceased spouse in the conjugal estate or absolute community shal be included in his estate. So, in the estateof the deceased spouse, naa ra gyapon share ang iyang surviving spouse.  Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate,  without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001.  Article 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. So we have the surviving spouse and the children. Di ba in testamentary succession, if the surviving spouse survives  with one illegitimate child, ang legitimate child is ½ of the estate ang spouse, 1/4 . if there are 2 or more legitimate children, ½ ang legitimate child dividing to them in equal share then and wife is equivalent to 1 legitimate child. In legal succession, equal sharing. So kung a spouse and 1 legitimate child, they shall divide by 2. Kung spouse and 2 legitimate children then divide by 3 and so on. Equal ang share sa spouse with the legitimate children or decendant.  Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

 Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a)  Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. (n)  Article 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (n)  Actually, the spouse has the same share as 1 legitimate child. Ang illegitimate child has a share equivalent to ½ of 1 legitimate child. In the computation, we just indicate the share of the spouse as to X, di ba? X= share of an illegitimate child, naay 2 ka children and naa spouse, so divide the entire estate. So, x is 1 illegitimate child ang uban kay 2x,2x,2x so that’s the computation. BUT again remember, we just have to preserve the legitimes of the children and the spouse. So, if there are 10 illegitimate children, again we follow the computation in testamentary succession—give the legitimes of the children and the spouse and whatever remains, give that to the illegitimate children.  Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. (841a)  Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)  Article 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or

31

she shall not have any of the rights granted in the preceding articles. SUCCESSION October 9,2013 part 1  As I mentioned last time, you have to memorize the intestate shares of the legal heirs.  Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth.  Whereas in testamentary sux: ½ to parents, ¼ to illegitimate child, and 1/8 to surviving spouse, so there is a free portion of 1/8.  Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a) In testamentary sux: brothers and sisters do not get anything unless they’re instituted as heirs, legatees, or devisees. So if the spouse alone she gets ½, or 1/3, or ½. We discussed that before.  Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles. (n)  We’re talking here of the surviving spouse as the guilty spouse or the one who gave cause to the legal separation. So the spouse is disqualified to inherit from the deceased. So there must be a decree of legal separation. If for example there is only a cause for legal separation, but there is no decree yet, the surviving spouse can still inherit. UNLESS the spouse who was entitled disinherited the guilty spouse, because giving cause to legal separation is also a ground for disinheritance. SUBSECTION 5. - Collateral Relatives  Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

32

collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)

are the only survivors, all shall inherit in equal shares  without distinction as to the origin of the property. (950)

So if there are no descendants, ascendants, illegitimate children, or a surviving spouse, that would be the time that the collateral relatives shall succeed to the entire estate.  Among them you follow the rule of proximity, so those who are in the descending are favored over those who are in the ascending.

Because they are all half blood, there is no distinction as to their sharing although they come from different lineages.

 Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947)  Art. 1005. Should brothers and sisters survive together  with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948) In my example before: If the survivors are all brothers and sisters and there are also nephews and nieces, the brothers and sisters exclude the nephews and nieces. But if some of these brothers and sisters already predeceased the decedent and they left their own children who are, in relation to the decedent, are nephews and nieces, the nephews and nieces will inherit together with the brothers and sisters. The nephews and nieces inherit by right of representation of their deceased parents. Their inheritance is per stirpes –  meaning they only get what the person they are representing are entitled to receive.

 Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915)  Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. (954a) So in the absence of brothers and sisters or nephews and nieces, other collateral relatives shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. AS LONG AS: (art 1010)  Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line. (955a) th

 As long as they do not go beyond the 5   degree in the collateral line of consanguinity. In so far as the direct line is concerned, theres a distinction whether ascending or descending.

 Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949)

Take note that in the collateral line the right of representation is only up to nephews and nieces.

So full blood brothers and sisters inherit twice as much as half blood brothers and sisters, that is in legal succession.

RIGHT TO INHERIT OF ADOPTED CHILDREN

Remember that in testate sux, if full blood brothers and sisters are instituted together with half blood brothers and sisters, they will get equal shares. Because this is testate sux. The testator had the opportunity to specify their share if he wanted them to have different shares but because the institution is silent, it is presumed that they are equal. But in legal sux, there is no will, their share is 1:2.  Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side,

Based on the ___ adoption act, adopted children have the same successional rights as adopted children. So they’re entitled to ½ of the NHE.  What if the adopted child survives with the parents of the adopter? Will the adopted child exclude the parents of the adopter? Diba legitimate children exclude the legitimate parents of the decedent. Del Rosario vs Cunanan SC gave more weight to the blood relationship between the adopter and his parents. So in that case the SC treated the

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

adopted child as an illegitimate child. So how will they divide the estate? In legal sux, ½ to the parents, ½ to the illegitimate children. So all of them will inherit. Because the  fiction of law only exists between the adopter and the adopted child. So that should not affect the rights of the  parents themselves to inherit from their children.  AN ADOPTED CHILD CANNOT REPRESENT THE  ADOPTER because the fiction of law created by adoption exists only between the adopted and the adopter. There is no relationship between the parents of the adopter and the adopted. UNLESS the adopted is actually a relative (pwede man na diba? Mag adopt ka ug relative?) so he can represent not because of adoption but because of blood relationship. SUCCESSION TO THE ESTATE OF AN ADOPTED CHILD  Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, onethird to be inherited by the illegitimate children, onethird by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and

33

(6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. Now take note in all cases of legal sux, Generally, there are 2 classes of heirs that if they survive they concur, they shall divide the estate in equal shares. Like parents and spouse, spouse and legitimate children (except when legitimate children survive with illegitimate children- legit inherit twice as much as the illegit). SUBSECTION 6. - The State  Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a) So the state is also a legal heir of the decedent. That means that when the decedent dies without leaving any heirs th (relatives w/in the 5   degree of consanguinity in the collateral line or any relative in the direct line whether ascending or descending) . CADUCIARY RIGHT 



the right of the state to succeed to the estate of a person who died without a will and without heirs. The right of a state to claim through estate proceedings the property of a decedent who are not survived by any heir.

NB: without heir and without a will. If there is a will, the estate will be divided using the will, it will not go to the state.  Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a) That is the RULE 91 ROC - RULE ON ESCHEAT PROCEEDING. ESCHEAT –  it is the process by which the state acquires the properties of a decedent who died intestate and  without ___.  Art. 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the  whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may  warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a) So take note of how the properties instituted in favor of the state is shall be distributed. 





personal property   - shall be assigned to the municipality or city where the deceased last resided in the Philippines real estate  - to the municipalities or cities, respectively, in which the same is situated. – because you cannot uproot these real estate If the deceased never resided in the Philippines - the whole estate shall be assigned to the respective municipalities or cities where the same is located.

FOR WHOS BENEFIT -  public schools, and public charitable institutions and centers, in such municipalities or cities.  Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. (n) If after the escheat of the properties in favor of the state and there appears an heir who claims that he should be entitled to the property –  he can claim that provided he files a claim within five years from the date the property  was delivered to the State.

34

PARTIAL INTESTACY There is a will but the will does not dispose of the entire estate. Example: NHE=120K. Legacy 10K in favor of X (friend). Heirs: Parents, Surviving Spouse, Illegitimate children. Diba in legal sux parents ½, SS ¼, IC ¼. Where do we deduct the 10K? Remember, even if legal sux, we have to preserve the legitime of the compulsory heirs. They cannot be given anything less than their legitime even if legal sux. So if we deduct first the 10K, we will make the estate 110K, therefore we would now be distributing less than their legitime. So you do not deduct the legacy first. How?  We charge the legacy/devise to the share of the legal heir who gets more in legal sux than in testamentary sux. K pila gani ilang legitime? If testamentary succession parents 1/2, spouse 1.8, illegitimate children ¼. Kinsa karon ang nakadawat ug more than his/her legitime? It is the spouse. So sa iyaha nato icharge ang legacy kay naa pa xay allowance, pwede pa xa kuhaan na dili pa mabawasan iyang legitime. Estate = 120K, legitime: parents 60K, Spouse 15K, Illegit child 30K. Sa parents and child, their legal shares are the same as their legitimes, so dili na sila pwede bawasan. How much can we deduct from the spouse? Actually, up to 15K. pero ang legacy 10K lang man, so we charge the legacy of 10K to the spouse. So now we distribute. Ang spouse, ¼ supposed to be iyang legal share = 30K, but we charge to her the legacy of 10K. so iya nlng madawat is 20K which is still over and above her legitime. Kung halimbawa ang legacy kay 15K, pwede gihapon nato xa icharge sa spouse. Kung ang legacy is 30K, ang pwede lang icharge kay 15K kay para dili maprejudice iyang legitime. So that is how we compute in case of partial intestacy. Charge the legacy/devise to the legal share of the heir  who gets more in legal succession than in testamentary succession.

CHAPTER 4 PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS SECTION 1. - Right of Accretion

 Art. 1015. Accretion is a right by virtue of which, when

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or  who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n) The concept of accretion is that there is:  3 REQUISITES 





UNITY OF OBJECT - Meaning there is only inheritance, legacy, or devise. PLURALITY OF SUBJECT –  2 or more heirs are instituted to the same one inheritance. THERE IS A VACANT PORTION – meaning one of them cannot inherit.

For example a house. what will happen to the share of A? it  will accrue to B. all those 3 requisites must be present – unity of object, plurality of subject, and vacancy. Examples: No unity of object. A sa 1 st floor, B sa 2 nd floor. A dies. To  whom will the share of A go? There is no accretion. There is no unity of object. There is an earmarking of the respective share of A and B although it’s the same house. Gispecify na sa testator asa ang maadto kay A, asa ang maadto kay B. So the concept of accretion again is subject to the priorities as we discussed before. Katong ISRAI. Insitution, Substitution, Representation, Accretion, and Intestate Succession.  Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof,  pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. So these are the requisites of accretion as I mentioned before.  Art. 1017. The words   "one-half for each" or "in equal shares"   or any others which, though designating an aliquot part, do not identify it by such description as

35

shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. So for example the testator said in his will na “I devise to A ¼ of my land, and to X ¾ of the same land.” Is there earmarking if you say ¼ to A and ¾ to X? No. Accretion is possible in that case. The words "one-half for each" or "in equal shares"   or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion.  You are not making any one of them the exclusive owner of a determinate portion of the property. In every sq. m. of the property A owns ¼ and X owns 3/4 . so dili ka maka ingon na akua ning ¼ diri imo nang ¾ dira.  You cannot claim a specific portion. BUT! If you say ½ kay A, ½ kay B. Kay A katong naay kasilyas dapit, kay B katong naay garden. In that case there is no accretion because there is already earmarking. You are now specifying which portion goes to A which portion goes to B. In case of money or fungible goods. Example: “I hereby bequeath to A and B my mo ney, and giving ¼ of my cash to A and ¾ of my cash to B.” –  there is accretion because there is no earmarking, you are just specifying their share. “my cash in metrobank shall go to A, my cash in BPI shall go to B” –  NO ACCRETION because there is now earmarking. You are making each heir an owner of a specific portion of the property.  Art. 1018. In legal succession the share of the person  who repudiates the inheritance shall always accrue to his co-heirs. Remember this ha! The concept of accretion applies only to testamentary succession and legal succession. Not all  vacancy in testamentary succession or legal succession will there be accretion.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

 What are those instances of vacancy when there can be accretion? In testamentary succession: there can be accretion if the  vacancy is caused by… 

Predeceased



Incapacity



Repudiation



If the Suspensive condition is not fulfilled



There is failure to identify one particular heir or the institution becomes ineffective.

October 9, part 2 SUCCESSION October 19, 2013 MAKE UP CLASS Part 1 of Part 4

Ok, last meeting we discussed about the law on accretion.  We now proceed to capacity to succeed by will or by testacy. When we say testamentary capacity, we are referring to the qualifications of the testator to execute a  will. Now under the capacity to succeed, we are referring tto the qualifications of the heir, legatee or devisee to inherit either by legal succession or testamentary succession.  Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. So what law governs the capacity to succeed whether an heir, legatee or devisee? The national law of the decedent. Is this familiar to you?  We discussed that before under Article 16. Di ba under Art. 16, what matters are governed by the national law of the decedent? We have the order of succession, amount of successional rights and the intrinsic validity of the testatmentary provisions. In relation to that we have the capacity to succeed. This was asked before in the bar exam:  what matters are governed by the national law of the decedent? We have four those that I mentioned. Ok, so not

36

the law of the place of execution, not where he dies but the national law of the decedent.

Now, who can inherit in general? When it comes to testamentary succession, of couse we have natural persons even those who are still conceived subject to the conditions under Art. 40-41 of the Civil Code. Can a juridical person inherit? Do they have the capacity to succeed? It depends. In the testamentary succession, if they are allowed by the law of creation by charter to inherit, then they can inherit. Even as we have discussed before, a class: the poor, the soul, na-discuss na ba nako ang the institution of the soul?  Ay wala pa diay, but they can be instituted but in legal succession, of course, not—natural persons have the capacity to succeed, juridical persons they cannot inherit by legal succession but the State can inherit because the State is also a legal heir if there are no other relatives of the decedent who died intestate. Insane persons, do they have the capacity to succeed? Insane persons cannot execute wills. They do not have testamentary capacity. Can they inherit by will? There is no prohibition.

 Article 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession.  The general rule is capacity. So as long as they are not disqualified or incapacitated by law, they can inherit. “Persons not incapacitated by law xxx”, again, when it comes to succession by  will, this may refer to natural or juridical persons. In legal succession, this may refer to natural persons and the State.  Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation,  when it is proper.  A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41.   We already discuss this. Insofar as natural persons are concerned, they must be living or at least conceived at the time when succession

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

opens, meaning at the time of death. so the point in time is the time of death because that is when the transmission happens. So even conceived, as long as the conditions under Art. 40-41 are complied with.

 What are the kinds of incapacity? We have 2 kinds of incapacity: 1.  Absolute incapacity  The heir cannot inherit from anybody under all circumstances. He cannot inherit.  Ex:  Article 1026 (2).All other o corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same.  So, if their charter prohibits them from inheriting, they cannot inherit absolutely. o

o

2.

 Article 1027 (6) Individuals, associations and corporations not permitted by law to inherit. Those who lack juridical personality  The abortive infant  Those who have an intrauteline life of less than 7 months and died within 24 hours from the time of birth.

Relative Incapacity  They cannot inheit only from certain persons but with the other persons, they can inherit. Or they cannot inherit certain properties. Some of the properties may be inherited but some are not. So relative ang ilahang incapacity.  3 classifications: Incapacity by reason of possible undue o influence -here, by reason of the position, of the person or his relationship to the testator, he is considered to be

37

incapacitated because he is presumed to have exercised undue influence upon the testator. When you say there is undue influence, meaning even the testator instituted this person, that institution is not voluntary. That must be a reason of undue influence. Take note that the disqualifications under  Art. 1027 shall apply only to testamentary succession. If it is testamentary succession, it will only apply to the free portion because the undue influence can only happen  when the testator by his will institutes the heir. In legal succession, there is no will. So even if there was undue influence, but the right of the heir to inherit is by virtue of the provision of law. Not because they unduly influecne the decedent. Again, this will only apply to testamentary succession and only to the free portion.  Article 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel  who extended spiritual aid to him during the same period; > this happens when the testator is suffering from an illness. And it should be the last illness because that illness should be the reason of which he died or the illness which subsisted immediately prior to his death. it should be grave — one which there is a posiblity of death because if the testaor  was just having a cough or sipon at that time nagconfess siya and then subsequently instituted the heir who is the priest and then he died pagkahuman niya ug himo sa  will in a car accident. His last illness was his cough or his sipon and he made a

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

confession. Under this circumstance, the testator  would not be thinking that he  will die. Kung naa ka sa sipon, do you think mamatay na ka? So this is not what is contemplated here. It must be one which there is a great possibility of death. grave illness like naa siyay cancer, stage 4 na siya, naghingalo na siya, and he confessed. Iyang last confession and after his confession, he made a will and he instituted that priest, the law presumes that during his confession, there was undue influence. Maybe the priest said, “sir, hapit naman jud ka mamatay noh, daghan kaayo kag properties. Mas makaayo sa imong kalag kung muhatag ka sa simbahan bisan ¼ lang or katong 1 hectare nimo sa Puan para makatabang pud sa imong kalag.” Because of that, di ba kung hapit na ka mamatay, di naman jud ka maghuna2 sa imong properties imong hunahunaon jud imong kalag so  you instuted the church, the priest or the order, the law says there is undue influence. So that institution, devise or legacy would be void. It cannot be given effect. Take note: during the last illness and after the confession because it is presumed that the undue influence took place during the confession. If the legacy was given or the  will is made even before the confession, there is no undue influence because wala pa man nagstoryahanay si father ug ang testator. so, that’s not by reason of undue influence.

38

It is not even necessary that the testator should really die from that illness. Like for example, he was sick, he has a cancer, he confessed and then he made the will and then he died mga 2 days after because na hit ad run siya, he did not die because of cancer but that  was the last illness that existed just before his death. pero halimbawa: he had cancer and then he confessed and he made a will and then after 10 years he died, would that institution be valid? Yes, it can be given effect because of the time. You have to consider the time between the institution of the will and the death. if it was 10 years pa before he died, there was a sufficient time or opportunity for him to cancel or change his will if there was undue influence but he did not change his will. It cannot be presumed that the institution  was by reason of undue influence.  What if the priest was the son of the testator and he gave the priest a house and lot? Will the priest be disqualified? Insofar as his legitimes is concerned, that would be given to him because the law mandates that the legitimes should be given regardless of the will of the testator; if that heir who was also the priest  was given more than his legitime, over and above his legitime, he is not qualified to receive that which exceeds his legitime. Ang iyahang legitime lang ang iyahang madawat.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

If the priest was appointed as executor or administrator,  would he be diqualified by reason of this article? No, because the appointment is not an institution he is not given a testamentary benefit. He was just made an executor or administrator. (2) The relatives of such priest or minister of the gospel  within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; Take note that this disqualification will apply only once the guardianship subsists. The law says “xxxbefore the final accounts of the guardianship have been approvedxxx” because again  when you are a guardian and you have a ward, the law presumes that you exercised moral ascendancy over your ward and if there is testamentary benefit given in your favor, that may be because of the undue influence that you exercised over the ward but if the final accounts have already been approved, so the guardianship has already extinguished and then the former ward made a testamentary

39

succession in favor of the former guardian, that would be valid. Only the time when there is guardianship and before the final accounts have been approved. Take note here that if the guardian is the ascendant, descendant, brother , sister or spouse of the  ward, the disposition would be  valid because it is presumed that if the guardian is also those that I mentioned, the disposition was made because of the affection or the relationship. Not because of the undue influence. Take note that this exception does not apply to the priest. Sa guardian lang na siya. (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; I think this is familiar to you because there’s a similar provision under  Article 823. If a person attests the execution of a will, to whom or to whose spouse, or  parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so  far only as concerns such  person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be  void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or  given. For example: an attesting  witness is also given a legacy or devise and he is also made as an heir. What is the consequence of this to the will? Will this invalidate the will? No because he

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

is qualified to become a witness but what is the consequence of this? The person who is at the same time the witness and the devisee, legacy or an heir, is disqualified to accept the inheritance, legacy or devise. Take note also that in Art. 823, of there are more than 3 witnesses to the will so there are 4 witnesses, si  A, B, C and D. D witness at the same time legatee. In this case, D  will now be able to receive the legacy because his presence as a  witness is no longer required for  validity of the will, so there is no more conflict of interest insofar as he is concerned. Kay kung 3 lang mo, there will be a conflict of interest because you are an heir,  you would like the will to be upheld because you would get soething from the will and because of the that if you ar ethe  witness, you will really say that the  will is valid, but if there are 4  witnesses, even if you will testify against or in favor of the will, that  will not matter because there are 3 other persons who can also testify. (5) Any physician, surgeon, nurse, health officer or druggist  who took care of the testator during his last illness;  Again, because they ar in the position to unduly influence the testator. the law says “xxx who took care of the testator during his last illness” meaning the care given is continuous over a period of time. If for example the testator  just went to the doctor for a check up 1 day lang and then he instituted that doctor as an heir of his will. Will that doctor be disqualified? No because this will  jot fall under this ground. Isolated incident ni. Dapat continuous ang

40

service na gihatag katong siya jud ang nag-assist or nag-attend sa imoha. The law mentions ‘druggists”, pharmacists ni sila. (6) Individuals, associations and corporations not permitted by law to inherit. NOTE: the disqualification under this article would apply to testamentary succession and the free portion.

 What if these persons were able to prove or present evidence, that they in fact did not exercise undue influence? Would that rebut the presumption? The presumption is conclusive. Thus, no evidence to the contrary would be accepted.

o

Incapacity by reason of public policy or morality  Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions.  Article 739. The following donations shall be void: (1) Those made between persons  who were guilty of adultery or concubinage at the time of the donation;  If we translate this ground for disqualification here, no need here for criminal conviction, only preponderance of evidence is needed. 

Take note ha, in disinheritance di ba with conviction? But here, even if there is no disinheritance, they cannot still inherit and

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

the guilt again can be proven by mere preponderance of evidence. (2) Those made between persons found guilty of the same criminal offense, in consideration thereof;  So, the disposition would be by reason of criminal offense and not for any other reason. (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.  So if you gave to him to the  judge and he was your best friend, then that would be  valid not because of his office but because you are a litigant and you have a pending case,  you give a car to the judge, by  will, that would be disallowed. (guys, mao jud ni ang actual na gisulti ni ma’am pero murag ni-ungot siya after niya ni gisulti seems na conflicting iyang explanation, pero kamo na lang mag-discern, wala kayo ni naclarify) In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

41

(2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases  wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud,  violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent.

So, they are not allowed because this is against our norms or morality. o

Incapacity by reason of unworthiness  Article 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue;

 Article 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

pious works, and the other half to the State, for the purposes mentioned in article 1013. So, this is what we call the institution of the soul. The testator left a certain amount of his property for prayers and pious works for the benefit of his soul. Is this valid?  Yes, under Art. 1029. If that happens who shall dispose of the property? The executor shall deliver ½ to the church and ½ to the State.

 Article 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the  justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality.

42

For example the testator had a mistress and he wanted to give a house and lot to the mistress, but he cannot do it by  will, he cannot do it by omission because that would be  void, can he be instead denominate it as a sale? Deed of sale to his mistress when in fact it is not a sale? The law says it is void even if it is made in under the guise of an onerous contract, or ihatag sa niya sa iyang bestfriend, ang iyang best friend ang muhatag sa mistress, still it is void. If it can be proven that the best friend was just used as an intermediary and intended to the mistress, that disposition shall not be given effect.

 Article 1031, cannot apply to Art. 1032. The latter would deal on the incapacity by reason of unworthiness. So, because of the act committed of that heir against the testator even if there is no disinheritance, the persons or offenders here are disqualified. They cannot inherit. For example the son attempted against the life of the testator and he was convicted. That is a ground for disinheritance but the testator did not disinherit the son. The son still cannot inherit because he is disqualified under the law to inherit.

 What if during his lifetime, the testator sold the land to the son or gave the land to his friends so that his friend can give it to his son? Can that disposition be allowed? Yes, because even the testator himself under Art. 1032 can give directly to the son. By giving to the son, he has directly to the son, he has forgiven his sin and therefore the son is qualified. Thus, Art. 1031 will not apply to Art. 1032. October 19 part 2 and 3

So, we have the institution of the poor. That is under Art. 1030. If that is the tenor of the disposition, “I hereby give ¼ of my property to the poor” Who are these persons? Who  will be considered as poor? The law says limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.

 Article 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void.

October 19, 2013 Makeup class part4/4 It will be charged to the free portion. Meaning, aside from that donation of P200K, the heir will still receive his legitime. In that case na duha ka anak na legitimate children, tagaan silag P375K each. Ang lesion na P200k, It  will be charged to the free portion. So P750K-P200K = P550K free portion. Unless, if dako kaayo xa na it will impair the legitime of the other child, so ireduce xa para macomplete ang legitime sa isa. Example: Free portion P750K, donation is 1M. In that case, it is inofficious by P250K because if the value of the estate is still 1.5M, P500K nlng ang mabilin sa free portion,

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

kulang na xa para sa isa ka heir. So ibalik nimo ang P250K para macomplete ang legitime sa isa ka compulsory heir.  Actually naa gihapoy collation by mathematical process but there’s no collation by equitation(?) because it can be charged to the free portion.  Art. 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired.  Actually we’re talking here of legacies and devises. They are not subject to collation because they have not even distributed the legacies and devises before the death of the testator.  And of course, the legitime shall not be impaired. Meaning, if he’s legacies and devises exceed the free portion, they shall be reduced accordingly.

43

Procedure of computing NET ESTATE: (1) determination of the value of the property which remains at the time of the testator's death; (2) determination of the obligations, debts, and charges which have to be paid out or deducted from the value of the  property thus left; (3) the determination of the difference between the assets and the liabilities, giving rise to the hereditary estate; (4) the addition to the net value thus found, of the value, at the time they were made, of donations subject to collation; and (5) the determination of the amount of the legitimes by  getting from the total thus found the portion that the law  provides as the legitime of each respective compulsory heir.

How about donations made to strangers? Because the law does not mention that. Is it subject to collation?  Vda de Tupas vs RTC Negros occidental Here Tupas foundation incorporated was a donee of a  property belonging to the testator. It was made during the lifetime of the testator. Would this be subject to collation? SC said YES.  A person's prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation more than he can give by will (Art. 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the extent of such excess, though without  prejudice to its taking effect in the donor's lifetime or the donee's appropriating the fruits of the thing donated (Art. 771, Civil Code). Such a donation is, moreover, collationable that is, its value is imputable into the hereditary estate of the donor at the tune of his death for the purpose of determining the legitime of the forced or compulsory heirs and the freely disposable portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs, although the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations. So it is subject to collation. Meaning, upon the death of the testator or decedent, the value of the donation will be added back to the estate. So we have collation as a mathematical  process. And that donation shall be charged to the free  portion because that’s a donation made not to a compulsory heir.

 What if the testator said that the donation is IRREVOCABLE? Is that equivalent to saying that the donation is not subject to collation? No. Buhay De Roma vs CA The donation was denominated as "sa pamamagitan ng  pagbibigay na di na mababawing muli" meaning irrevocable. The phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as "irrevocable" and should not be construed as an express  prohibition against collation. The fact that a donation is irrevocable does not necessarily exempt the subject thereof  from the collation required under Article 1061. The intention to exempt from collation should be expressed  plainly and unequivocally as an exception to the general rule announced in Article 1062. Absent such a clear indication of that intention, we apply not the exception but the rule, w hich is categorical enough.  Anything less than such express prohibition will not suffice under the clear language of Article 1062. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedent's estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donation is officious The sole issue is whether or not there was an express prohibition to collate, and we see none.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

So take not that when you say IRREVOCABLE – meaning it cannot be taken back by the donor. But when you say COLLATION that’s a “totally different banana” (haha! :P) that’s a different issue. That’s a mandate by law. That is not in accordance with the will of the donor. So we really have to add back the value of the donation to determine the value of the estate to prevent the circumvention of the law on legitime. Whether revocable or irrevocable, it is still subject to collation. If the testator says “it is not subject to collation”, the val ue would still be added back to the estate, only that it will not be considered as an advance to the legitime of the compulsory heir.  Art. 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. Example: drawing2x si maam So we have Testator, grandchildren A, B, C. During his lifetime, testator donated to A 200K. Estate 1M. so the value of the net estate at the time of death of the testator would be 1.2M. for example A predeceased the Testator, so A will now be represented by X and Y (children of A). How to divide: Legitime 600K/ 3 = 200K each child ABC. But their father A already received the 200K. so X and Y cannot receive anymore because they already received that in advance. So even if the donation was given to their father, it will still be subject to collation even if they inherit by representation. In addition, “They shall also bring to collation all that they may have received from the decedent during his lifetime” So even the donations which they receive shall be subject to collation and charged to their legitime unless the testator provides otherwise.  Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property

44

 which may have been donated by the latter to their children. Example: So here X and Y are children of A. testator died, the survivors are ABC. So legitime is 200K each. What if the testator donated during his lifetime to X and Y? Would A collate that? Would that be considered as an advance to the legitime of A? No. because in the first place, dili man gani heir ni testator si X ug Y. because under the rule on proximity – those who are near exclude those who are far. So we will only consider those donations made to ABC but not to their children. Different sa previous article because the representative inherit, so they will bring to collation all that they received and all that their parents have received because they represent their parents. So that is the difference.  Art. 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. Example: So here the testator donated to the spouse of A. testator died, his heirs are ABC. Will A bring to collation  what his spouse received? No, because he’s a separate person from his spouse. The donation was not made to him but to his spouse. The donation was made to his spouse not to A. the donation made to his spouse shall be charged to the free portion and not considered as an advance to the legitime of A. If jointly gihatag sa ila ang donation, then ang half na share ni A would be considered an advance to his legitime and he has to collate that.  Art. 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. So education – this should only refer to up to high school. Medical attendance –  so naoperahan ka, gigastosan ka sa imong parents and gipakaon ka. so gikwenta sa imong parents imong gatas since tung bata pa ka pati imong diapers den “o anak ha advance na to your legitime!” pwede ba na? No. it is not subject to collation, even the value of those expenses will not be added back to the value of the estate because these are obligations of the parents to their children. Not included in collation. Customary gifts – birthday gifts, jewelry ginagmay, not subject to collation.

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

 Art. 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. This is what we call OPTIONAL COLLATION –  expenses for professional, vocational or other career. So this is education after high school. GR: professional, vocational or other career are not subject to collation. EX: if your parents provide otherwise. So they can say na subject to collation. “Ikaw anak imong pagskwela nimo sa lawschool icollate nako na xa as advance to your legitime, since 10 years man ka nag lawschool, wala na kay madawat!  Actually ibalik pa nimo ang sobra anak kay na impair na nimo ang legitime sa imong ubang igsuon!” hahahaha! agay! If they do that, dili pud tanan imong iuli. Because imong expenses if nagpuyo lang ka sa inyong balay, wala ka nag lawschool, magkaon man gihapon ka diba? So kana xa pwede xa ideduct didto sa value sa imong iuli. Optional collation –  added to the value of the estate to determine the hereditary estate and charged to the legitime of the compulsory heir if so directed by the testator.  Art. 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation. So remember ha na not only donations are subject to collation. Anything given gratuitously by the parents, as long as not excluded by law, are subject to collation. Such as debts – naay utang gibayaran, election expenses, fines nakulong gipyansahan, subject to collation.  Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by  will.

45

Example: Free portion 1M, 10% is 100K. so if imong gown kay 200K, ang excess na 100K kay considered na na advance to your legitime. Halimbawa gihatagan kag mga PLATO? They will not be part of the collation, they are considered as customary gifts under Art. 1067, not subject to collation.  What if HOUSE AND LOT during your wedding? That is subject to collation. They are not mentioned under jewelry, clothing and outfit. They are considered ordinary donations  which is subject to collation. BUT if ana ka ka rich (murag si Napoles) na pag mag birthday, binyag, manghatag na kag house and lot, then that’s considered as customary gifts under Art. 1067. It depends on your status.  Art. 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just  value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. Now here, if the donations are subject to collation, what shall be the value added back to the estate? It is the value at the time of the donation. So if the value has increased/decreased, sa donee na to xa na risk.  Art. 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. Example: If the testator, jointly with his wife, made a donation of 200K to A. if namatay si testator, only ½ of that or 100K is added back to his estate. So ang legitime ni A from his father considered as advance is only 100K. pagkaamatay sa mother, the other 100K mao napud tong iadd back sa estate of the mother as an advance to A.

General rule: when it is jewelry, clothing, and outfit – not subject to collation.

 Art. 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality.

Exception: if their value exceed one-tenth of the free portion.

So there’s a donation inter vivos to his son A. considered as an advance to the legitime of A. If that is a parcel of land, in

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

the distribution of the estate, as much as possible to assure equality, si B ug C hatagan pud ug land.  Art. 1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. IF IMMOVABLE: So kung ang estate has no land, the law says that they should receive its equivalent in cash or securities. If walay cash or securities, so much of the other property as may be necessary shall be sold at public auction. IF MOVABLE: If ang gihatag kay A kay Car, supposedly ang ihatag kay B ug C kay car. Kung wala nay lain car, the coheirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price.  Art. 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened.

46

 Art. 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value. The donee who collates in kind an immovable which has been given to him must be reimbursed by his coheirs for the improvements which have increased the  value of the property, and which exist at the time the partition if effected.  As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. This will only apply if there is a need to return because if there is no need to return, there is no need for reimbursements.  What expenses can be reimbursed to the donee who has to collate: 





necessary expenses improvements - which have increased the value of the property, and which exist at the time the partition if effected expenses for mere pleasure - no reimbursement is due him for them; he has, however, the right to remove them

For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. This will apply only if there is a need of reduction or abatement. Because if wala na impair ang legitimes, we will only consider its value at the time of donation. Pero if there is a need to return kay inofficious xa, what happens to the fruits and interest of the property? General Rule: The fruits and interest of the property subject to collation shall pertain to the estate from the day on which the succession is opened. (At the time of death) So the donee should return the property and the fruits and interest of the property which accrued from the time of death. So katong nakuha niya na fruits and interest during the lifetime of the testator, wala na toy apil.

 Art. 1077. Should any question arise among the coheirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. So during the distribution of the estate there’s a controversy whether or not certain things are subject to collation, the distribution will still continue but they will  just furnish a security for the property in question.

So, as we mentioned before, donation made inter vivos to the heirs or strangers are subject to collation. Donations

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

made to children –  advances to their legitime. Donations made to strangers – charged to the free portion. How about DONATIONS of the testator to his SPOUSE? The donation would be VOID. So because it is void, its  value will not leave the estate, therefore there is no need for collation.

47

that portion is allocated to the one who sold, then that sale now becomes valid. Ok, it cannot later on question the sale on the ground that it is void.  Article 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value.

 What if dili pa sila asawa nag DONATE xa sa iyang FUTURE SPOUSE then nahimo niyang wife? Would that be  valid? Yes. it will be subject to collation. That would be considered as a donation made to strangers charged to the free portion.

So, the laws says that the thing itself may be divided or its  value, for example it is not practicable, you divide a thing, like a house, you cannot divide it physically, so pwede its  value.

SUCCESSION

Let us go to specific cases…

OCTOBER 21

How is partition done? Is there a specific formality or requirement under the law on how it should be done?  Actually when you say partition, even the testator himself can partition the thing during his lifetime. So that is what  we call partition inter vivos. Partition may also be done by his heirs after the death of the decedent or testator. so, is there a specific form? NONE. It can be done orally, in  writing, private or public document, but we also have specific rules under the Rules of Court. For example, there are several heirs and there are no debts and they can agree among themselves how to partition, so they can just do that by a document. They don’t have to go to court to partition the property. they can execute EXTRAJUDICIAL PARTITION OF THE ESTATE. So that is just in a public document notarized by the notary public.

First 17 minutes

SECTION Partition and Distribution of the Estate

6

SUBSECTION 1. Partition

 Article 1078. Where there are two or more heirs, the  whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. So, upon the death of the testator, if there are several heirs and there is still no distribution, there is now a state of coownership among the co-owners. Ok, so what is the consequence if, there is still co-ownership? Each heir is not considered an absolute owner of any portion of the property. even if you say that there are 4 heirs and each of them owns 1/4 , but each of them cannot claim a specific portion or exclusively own for a certain portion of the property. so, for each and every square meter of the property, they are co-owners, ¼ each. That is why, a conveyance, donation, disposition, sale made by a co-owner of a specific portion of the property prior partition is void. If you sell 1hectare assuming that the land is 4 hectares, you sell 1 hectare and you specify the meets and bounds, the technical description, that is null and void, because again there is no partition. So you cannot claim an exclusive ownership over a specific portion. But if affter the partition,

If there is only 1 heir, he/she can just execute an  AFFIDAVIT OF SELF ADJUDICATION, adjudicating to himself or herself the entire estate. If the parties cannot agree as to ow to partition the property, then they will have to go to court. Because it will now be the court who will decide how to partition. That is  what we call, JUDICIAL PARTITION. So, in that kind of partition, there is an administrator/ executor who will submit a ____ of partition and that would have to be approved by the court. Usually pag di na magkasinabot ang parties, pwede na lang na raffling. I-raffle2 kung pila imong share. Unsa imong share, unsa imong makuha. That is how partition is done.

Now, let’s go back to an EXTRAJUDICIAL PARTITION. Onw which is done by the heirs themselves. When you

Succession TSN 3rd Exam Coverage Based on the Lectures of Atty. Leilanie Yangyang Espejo

extrajudicially partition a property, one requirement is there should be no will. Rule 74 Sec. 1 of the Rules of Court.  What are the conditions?  





The decedent left no will The decedent left no debts or if there were debts left, they were paid. The heirs are all of age or if there are minors, that latter are represented by their judicial guardian or legal representatives. The partition was made by means of a public instrument or affidavit duly filed in the register of deeds. So, it requires that the extrajudicial partition should be written and acknowledge before the notary public because its public document and filed with the register of deed It has to be published in a newspaper of general circulation for 3 consecutive weeks. 



In the case of HEIRS OF TEVES vs. CA, this involves an extrajudicial partition. Now, the question is what if by extrajudicial partition is not made in a public instrument and not registered in the register of deeds? Will it be valid?  YES, even an oral partition is valid. So, what about Rule 74 Sec. 1 of the Rules of Court?  According to the SC, this is only required, if there are creditors affected because this will now serve as a protection of the creditors because they should be apprised that the heirs are now dividing the property. and this is also for the benefit for the heirs themselves to protect them against the time ____ of the creditors because there is a certain period which is called the STATUTE OF MANIFESTNG*** that the creditors have to present their case in court otherwise, the claim will be barred. If there are no creditors affected, then the partition, even if orally mad ecan be respected and it is valid. It does not affect its exclusive validity when there are no creditors or the rights of the creditors are not affected.

 Article 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.  A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or

48

manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. So here we are talking of partition made by the testator or the decedent himself. When you say act inter vivos, there is no particular requirement as to how it should be done. As discussed in the case of  JLT Agro incorporated vs. Balansag GR: 141882 March 11, 2005 The SC said, that if the partition is made by an act inter  vivos, no formalities are prescribed by the Civil Code. The partition will of course be effective only after death. it does not necessarily require the formalities of the will fo rafter all it is not the partition that is the mode of acquiring ownership. Neither will or formalities of a donation be required since donation will not be the mode of acquiring ownership hereafter death. since nobody has remain, it follows that the mode will be succession or intestate succession. Besides, the partition is limited to physical determination of the part to be given to the heir. So, there is no particular formalities. Although it can be done in a  will, but it can also be done in another way. Now, with respect to future things, for example, the testator or the decedent is still alive, so he makes the partition of the property and he signed the partition and also his heirs. Now, there is a general rule that contacts upon future things may be entered into for as long as they are not outside the commerce of men. Contracts which involve future things can be valid. So future object or thing may be an object of a contract. Exception: under the new civil code, no contract may be entered into with respect to future inheritance because again as we discussed before, the rights of the heir to their inheritance will only be inchoate or expectancy. So any contract with respect to their future inheritance will be void. An exception to the exception is the partition inter vivos referred to in Art. 1080. Because even if the decedent is still alive he can already make a partition of his property and he can make that as an agreement among his heirs. It is valid again because the partition even if done during his lifetime will not be effective then, it will not cause the transfer of ownership to the heirs during the execution. It will only transfer ownership to the heirs upon the death of the