Jen Succession Reviewer

1ST SEM 2006-2007

SUCCESSION REVIEWER

 Based on “Jottings and Jurisprudence on the Law on

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A literal construction of Art774 appears to imply that money obligations of the deceased would pass to the heirs, to the extent that they inherit from him. • Seemingly, this article mandates that the heirs receive the estate, and then pay off the creditors.

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However, Philippine procedural law, as influenced by the common-law system, lays down a different method for the payment of money debts, as found in Rules 88 to 90 of the Rules of Court. It is only AFTER the debts are paid that the residue of the estate is distributed among the successors.

Succession” by Prof. Balane and Cases according to the 2006 Syllabus of Justice Hofileña

CHAPTER 1 GENERAL PROVISIONS

ART. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. 

The Code has simplified the concept of succession and treats it simply as one of the 7 Modes of Acquiring Ownership as enumerated in Art712 of the NCC.

 7 MODES OF ACQUIRING OWNERSHIP

1. 2. 3. 4. 5. 6. 7.

Occupation Intellectual Creation Law Donation Estate and Intestate Succession Tradition Prescription

 Overlap of Codal Definition with Art776

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Article 774 talks of “property, rights and obligations to the extent of the value of the inheritance.” Article 776 talks of the “inheritance” as including “all the property, rights and obligations of a person which are not extinguished by his death.” For clarity and better correlation, Prof. Balane opines that Art774 should rather read: “Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of law.” And the inheritance which is transmitted through a person’s death is defined by Article 776 to include “all the property, rights and obligations of a person which are not extinguished by his death.”

 What are Transmitted by Succession?

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Only Transmissible Rights and Obligations.

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General Rule – if the right or obligation is strictly personal [intuitu personae], it is intransmissible; otherwise it may be transmitted.

 Rule Regarding Pecuniary Obligations

 Rule 90, Sec1 provides for the When the Order for the

Distribution of Residue is made.  According to the rule, when the debts, funeral charges and expenses of administration, the allowance to the widow and the inheritance tax have all been paid, that is the only time that the court shall assign the RESIDUE of the estate to persons entitled to it.  The rule also provides that there shall be no distribution until the payment of the obligations enumerated above, have been made or provided for. However, if the distributees give a bond for the payment of the said obligations within such time and of such amount as fixed by the court, the distribution may be allowed.  In our system therefore, money debts are, properly

speaking, not transmitted to the heir nor paid by them. The estate pays them and it is only what is left after the debts are paid [residue] that are transmitted to the heirs.  Justice JBL Reyes observed that Philippine rules of

Succession Mortis Causa proceed from an imperfect blending of 3 Systems with Contrasting Philosophies – 1. GERMANIC CONCEPT OF UNIVERSAL HEIR • Heir directly and immediately steps into the shoes of the deceased upon the latter’s death

• • • •

At one single occasion [uno ictu] Without need of any formality En mass Automatic Subjective Novation

2. FRANCO-SPANISH SYSTEM • Acquisition of estate by universal title but only upon acceptance by the heir at any time, with retroactive effect. • Acceptance may be made any time except when the creditors or the court requires it be done within a certain time. • This is the system followed by the NCC, by having the following features: a) Universality of Property Rights and Obligations b) Transmitted from the moment of death c) En bloc, as an entire mass

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SUCCESSION REVIEWER d) Transmitted even before judicial recognition of heirship. 3. ANGLO-AMERICAN [COMMON LAW] SYSTEM • Estate must first be liquidated, assets marshaled and the debts paid or settled under judicial supervision, by an intervening trustee or personal representative [administrator or executor] before the net residue is taken over by the successor. • This is the system followed by the Rules of Court, in that: a) Executor or administrator has possession and management of the estate as long as necessary for the payment of debts and expenses of administration, with authority to exercise the right of disposition. b) Section 3 Rule 87 – action to recover title or possession of lands in the hands of the executor or administrator can be maintained by the heir only upon the order of the Court assigning such land to the heir or devisee. c) Section 1 Rule 90 – heirs may recover their share only upon:  Payment of debts, expenses and taxes  Hearing conducted by the court  Court assigns the residue of the estate to the heirs. 

As a result of the blending of these 3 systems, JBL Reyes says that we are thus faced with divergent, if not contradictory principles.  Do the successors acquire the WHOLE of the transmissible assets and liabilities of the decedent?

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Art774 – by virtue of succession the property, rights and obligations, to the extent of the value of the inheritance of a person, are transmitted by and at the moment of his death, implying a transfer at that instant of the totality or universality of assets and liabilities.

Do the successors only acquire the RESIDUUM remaining after payment of the debts, as implied by the Rules of Court?

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Art1057 – within 30 days after the court has issued an order for the distribution of the estate in accordance with the RoC, the heirs, devisees and legatees shall signify to the court having jurisdiction, whether they accept or repudiate the inheritance. • The order of distribution under the RoC is issued only after the debts, taxes and administration expenses have been paid; hence it is arguable that the acceptance can no longer refer to assets already

disposed of by the administrator, but must be limited to the net residue. • But if title vests in the heir as of the death of the decedent then the acceptance of the heir becomes entirely superfluous, and the law should limit itself to regulating the effects the effects of a repudiation by an heir or legatee, and its retroactive effect. 

Or do the successors acquire only the NAKED TITLE at the death of the predecessor, but with possession or enjoyment vested in the administrator or personal representative until after settlement of the claims against the estate?

 RESULT of these divergent rules – Creditors must now

pursue their claims during the settlement proceedings and not against the heirs individually. CASE Union Bank v. Santibañez - On May 31, 1980, First Country Credit Corporation (FCCC) and Efraim M. Santibanez entered into a loan agreement in the amount of P128,000 which was intended for the payment of the purchase price of 1 unit of a tractor. In view of this, Efraim and his son, Edmund executed a promissory note in favor of FCCC. - On Dec. 13, 1980, FCCC and Efraim entered into another similar loan agreement which was intended to pay the balance of the purchase price of another unit of a tractor. And again, father and son executed a promissory note for the said amount in favor of FCCC. - However, sometime in Feb 1981, Efraim died, leaving a holographic will and subsequently testate proceedings were commenced before the RTC of Iloilo with Edmund being appointed as the special administrator of the estate of the decedent. - During the pendency of the testate proceedings, Edmund and his sister, Florence Santibanez Ariola, executed a joint agreement on July 22, 1981 wherein they agreed to divide between themselves and take possession of the 3 tractors; 2 for Edmund and 1 for Florence, each of them to assume indebtedness of their late father to FCCC. - On August 20, 1981 a deed of assignment with assumption of liabilities was executed by and between FCCC and Union Savings and Mortgage Bank, wherein FCCC as the assignor, assigned all its assets and liabilities to Union Savings and Mortgage Bank. - Not long after, demand letter for the settlement of the account were sent by Union Bank to Edmund but the latter refused to pay. Thus Union Bank filed a complaint for sum of money against the Edmund and Florence before the RTC of Makati. - However the case was dismissed. The lower court said that the claim should have been filed with the probate court were the testate estate of Efraim was pending. Furthermore, the agreement was void considering that the probate court did not approve the agreement and no valid partition until after the will has been probated. - Also, the list of assets and liabilities of Union Bank did not clearly refer to the decedent’s account. Also, it was contended that the obligation of the deceased had passed to

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SUCCESSION REVIEWER his legitimate children and heirs already, in this case Edmund and Efraim. CA affirmed RTC decision. - Hence this appeal. WON the partition in the Agreement executed by the heirs is valid. - No, there can be no valid partition among the heirs until after the will has been probated by the probate court. This is specially because when the joint agreement executed by Edmund and Florence partitioning the tractors among themselves were executed, there was already a pending proceeding for the probate of their late father’s holographic will covering the said tractors. Thus the probate court had already acquired jurisdiction over the said tractors which they can’t be divested of. Any extrajudicial agreement needs court approval. WON the heirs’ assumption of the indebtedness of the deceased is valid. - No, the assumption of the indebtedness of the decedent by Edmund and Florence is not binding. Such assumption was conditioned upon the agreement above. Hence, when the agreement of partition between Edmund and Florence was invalidated, then the assumption of the indebtedness cannot be given and force and effect. Also, the court should have filed it money claim against the decedent’s estate in the probate court. Furthermore, it cannot go after Florence for she took no part in the documents related to the tractors, specifically the promissory notes and the continuing guaranty agreement; they should have gone after Edmund being a co-signatory to the promissory notes and guaranty. WON the Union Bank can hold the heirs liable on the obligation of the deceased. - No, Union Bank cannot hold the heirs liable on the obligation of the deceased because it had not sufficiently shown that it is the successor-in-interest of the Union Savings and Mortgage Bank to which the FCCC assigned its assets and liabilities. Furthermore, the documentary evidence clearly reflects that the parties in the deed of assignment with assumption of liabilities were the FCCC, and the Union Savings and Mortgage Bank, with the conformity of Bancom Philippine Holdings, Inc. Nowhere can the participation therein of Union Bank as a party can be found. As a result, Union Bank has no personality to file the complaint and therefore cannot hold the heirs liable for the obligation of the deceased.  In a sense, it can be said that even money debts are

transmitted to and paid for by the heirs, but this would be by mere indirection –  Because whatever payment is thus made from the estate is ultimately a payment by the heirs and distributes, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.  BUT only the payment of MONEY DEBTS has been

affected by the Rules of Court. The transmission of other obligations not by nature personal follows the rule in Art774 and is transmitted by succession. CASE

Estate of K.H. Hemady v. Luzon Surety - Luzon Surety filed a claim against the Estate based on 20 different indemnity agreements or counter bonds, each subscribed by a distinct principal and by the deceased K.H. Hemady, a surety solidary guarantor in all of them, in consideration of Luzon Surety’s of having guaranteed, the various principals in favor of different creditors. - Luzon Surety also prayed for allowance, as a contingent claim, of the value of the 20 bonds it had executed in consideration of the counterbonds, and further asked for judgment for the unpaid premiums and documentary stamps affixed to the bonds with 12% interest. - Before the answer was filed, the lower court dismissed the claims of Luzon Surety, on two grounds: (1) that the premiums due and cost of documentary stamps were not contemplated under the indemnity agreements to be a part of the undertaking of the guarantor (Hemady), since the were not liabilities incurred after the execution of the counterbonds; and (2) that “whatever losses may occur after Hemady’s death, are not chargeable to his estate, because upon his death he ceased to be guarantor.” Whether losses are chargeable to Hemady’s Estate. - YES. While in our successional system the responsibility of the heirs for the debts of their decedent cannot exceed the value of the inheritance they receive from him, the principle remains intact that these heirs succeed not only to the rights of the deceased but also to his obligations. - Under the CC, the heirs, by virtue of the rights of succession are subrogated to all the rights and obligations of the deceased and cannot be regarded as third parties with respect to a contract to which the deceased was a party, touching the estate of the deceased. - By contract, the articles of the Civil Code that regulate guaranty or suretyship contain no provision that the guaranty is extinguished upon the death of the guarantor or the surety. - Although Art. 2056 requires that one who is required to furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and sufficient property to answer for the obligation which he guarantees, it will be noted that the law requires these qualities to be present only at the time of the perfection of the contract of guaranty - The contract of suretyship entered into by K.H. Hemady in favor of Luzon Surety not being rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate. - The SC reversed the order of the lower court and instead ordered the case be remanded to the CFI.

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The general rule is that a party’s contractual rights and obligations are transmissible to the successors. - Art. 1311 of NCC: Contracts take effect only as between the parties, their assigns and heirs, except in the case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law.

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Art. 774 of NCC: Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance of a person are

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SUCCESSION REVIEWER transmitted through his death to another or other either by his will or by operation of law.

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Art. 776 of NCC: The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. - The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in the Rules of Court that money debts of a deceased must be liquidated and paid from the estate before the residue is distributed among said heirs. The reasons is that whatever payment is made from the estate is ultimately a payment by the heirs, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.

- The children are, however, liable only to the extent of the value of their inheritance. - Art. 774, NCC: Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. - Art. 776, NCC: The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.

ART. 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator.  Decedent – general term, person whose property is

Alvarez v. IAC - Aniceto Yanes owned a parcel of land identified as Lot 773 in Negros Occidental. He was survived by his children, Rufino, Felipe, and Teodora. - Aniceto left his children with Lots 773 and 823. - Teodora cultivated part of Lot 823. - Rufino and his children left the province to settle in other places as a result of the outbreak of WWII. - After the liberation, Rufino’s children went back to the land to get the their share in the sugar produce. They were informed that Santiago already owned Lot 773, and had the corresponding TCTs. - Santiago sold the land to Fuentabella. - After Fuentabella died, the administratrix of his estate (Arsenia) filed a motion requesting authority to sell Lot 773 (already subdivided to Lots 773-A and 773-B). - The motion was granted and Arsenia sold the lands to Alvarez. - Teodora and Rufino’s children (Yaneses) filed a complaint in CFI Negros Occidental for the “return” of the possession and ownership of Lots 773 and 823. - During the pendency of the case, Alvarez sold the land to Siason. - CFI ordered Alvarez to reconvey Lots 773 and 823 to the Yaneses. - Execution of the decision was unsuccessful with regard to Lot 773 as it was already in the name of Siason. - Another action was instituted by the Yaneses, this time impleading Siason. - Siason claims that he was a purchaser in good faith and thus, he has title to Lot 773. - CFI dismissed the complaint against Siason and ordered the children of Alvarez to solidarily pay the Yaneses Php 20,000, representing the actual value of Lot 773. WON it was correctly ruled that the children of Alvarez be made responsible for the liability of their father (Alvarez). - YES. The rights and obligations of the deceased are generally transmissible to his legitimate children and heirs. - As heirs of the late Alvarez, the children cannot escape the consequences of their father’s transaction, which gave rise to the present claim for damages.

transmitted Testator – specific term, person who transmits his property via a will.  It is unfortunate that the Code does not use the term

“Intestate” to refer to a decedent who died without a will, This would have prevented the ambiguity now inherent in the term “decedent”

ART. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.  Overlap of Codal Definition with Art776

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Article 774 talks of “property, rights and obligations to the extent of the value of the inheritance.” Article 776 talks of the “inheritance” as including “all the property, rights and obligations of a person which are not extinguished by his death.” For clarity and better correlation, Prof. Balane opines that Art774 should rather read: “Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted through his death to another or others either by his will or by operation of law.”

 And the inheritance which is transmitted through a

person’s death is defined by Article 776 to include “all the property, rights and obligations of a person which are not extinguished by his death.”

ART. 777. The rights to the succession are transmitted from the moment of the death of the decedent.  Time of Vesting of Successional Right

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SUCCESSION REVIEWER 

Prof. Balane says the terminology used in this article is “infelicitous” because the right to the succession is not transmitted; but rather vested.  To say that it is transmitted upon death implies that before the decedent’s death, the right to the succession was possessed by the decedent [which is absurd].

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To say that it vests upon death implies that before the decedent’s death the right was merely inchoate [which is correct].

1ST SEM 2006-2007 - However, it was the common-life, Maria del Rosario who took possession of the lands, depriving Unson the enjoyment and possession of the same. - Thus, the legal wife filed a case for recovery of ownership and possession of the said parcels of land against del Rosario. - Maria de Rosario contended that Unson and Faustino agreed to separate some time in 1931. Unson was given a parcel of land as alimony on the condition that the latter will renounce her right to inherit any property that may be left by the husband upon his death. - Whether or not Unson is entitled to recover the parcels of land in question.

 THE LAW PRESUMES THAT THE PERSON

SUCCEEDING – 1. Has a right to succeed by a) Legitime [compulsory succession], b) Will [testamentary succession], or c) Law [intestate succession] 2. Has the legal capacity to succeed, and 3. Accepts the successional portion

 The vesting of the right occurs immediately upon

the decedent’s death; i.e. without a moment’s interruption. From this principle, the following consequences flow – 1. The law in force at the time of the decedent’s death will determine who the heirs should be • New Civil Code – August 30, 1950 2. Ownership passes to the heir at the very moment of death, who therefore, from that moment acquires the right to dispose of his share. 3. The heirs have the right to be substituted for the deceased as party in an action that survives. • Because the heir acquires ownership at the moment of death and become parties in interest.  It should be emphasized that the operation of Art. 777

is at the very moment of the decedent’s death, meaning the transmission by succession occurs at the precise moment of death and therefore the heir, devisee, or legatee is legally deemed to have acquired ownership at that moment, even if, particularly in the heir’s case, he will generally not know how much he will be inheriting and what properties he will ultimately be receiving, and not at the time of declaration of heirs or partition or distribution. CASES Uson v. Del Rosario Law in force at time of decedent’s death determines who the heirs should be. - Maria Unson was the legal wife of Faustino Nebrada. Faustino died in 1945 leaving 5 parcels of land with no other heir except his legal wife.

- The SC held for Maria Unson. - The Civil Code provides that the inheritance of a person is transmitted to another at the moment of his death. - Accordingly, the Supreme Court said that the parcels of land of Faustino passed from the moment of his death to his only heir, Maria Unson. - The contention that Unson and Faustino agreed that the former would NOT inherit anything from the latter cannot be made effectual. Future inheritance cannot be validly made the subject of any contract nor can it be renounced. - Del Rosario also argued that her illegitimate children with Faustino have the right to inherit by virtue of the provision of the new Civil Code granting successional rights to illegitimate children. - Said argument is untenable. It is true that the new Civil Code grants successional rights to illegitimate children and that this right shall be given retroactive effect even though the event which gave rise to said right may have occurred under the former legislation. (Faustino died in 1945, The NCC took effect in 1950). - However, according to the NCC, this new right must not prejudice or impair any vested or acquired right. - In this case, and as already explained, the right over the parcels of land vested upon Unson from the moment of death of Faustino. Thus, the new right cannot be enforced w/out prejudice to Unson’s vested right over the properties. - Rights over the inheritance of a person are transmitted upon his death to another. - ‘The property belongs to the heirs at the moment of death of the ancestor as completely as if the ancestor had executed and delivered to them a deed for the same before his death.”

De Borja v. De Borja Ownership passes to heir at the very moment of death, with right to dispose - Francisco De Borja and Jose De Borja were coadministrators of the testate estate of Josefa De Borja, Francisco’s wife and Jose’s mother - When Francisco died, Jose became the sole administrator in the testate proceedings of his mother before the CFI of Rizal. - It appears that after the death of Josefa, widower Francisco married Tasiana Ongsingco. - Following the death of Francisco, Tasiana was appointed as special administratrix in the testate proceedings of Francisco before the CFI of Nueva Ecija. - Multiple suits ensued between the children of the first marriage and Tasiana until at some point, when both parties

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SUCCESSION REVIEWER agreed to enter into a compromise agreement on October 12, 1963. - In the said agreement, Jose De Borja, personally and as administrator of the estate of Josefa, and Tasiana Ongsingco, expressed their mutual desire to end the suits between them by selling the Poblacion portion of the Jalajala, Rizal properties of Francisco, from the proceeds of which P800,000, representing P200,000 from each of the 4 children from the first marriage, shall be paid to Tasiana as full and complete payment and settlement of Tasiana’s hereditary share in the estate of Francisco as well as of Josefa, and to any properties bequeathed or devised to her by Francisco, by will or by donation purportedly conveyed for consideration or otherwise. - The CFI of Rizal approved the agreement whereas the CFI of Nueva Ecija did not. - Tasiana’s grounds for her opposition to the agreement after it was submitted to the court for approval were: 1) no such agreement is valid without first probating the will of Francisco; 2) it compromises the validity of the marriage between Francisco and Tasiana; and, 3) the resolutory 60day period had lapsed so that the agreement had ceased to be valid.

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Tasiana cited Guevara v. Guevara which did not allow an extrajudicial settlement of a decedent’s estate if there has been left a will, stating that it was against the law and public policy. - Thus, pending probate of Francisco’s will when the agreement was made, it was invalid. Whether or not the compromise agreement was invalid without first probating the will of Francisco. - NO. The compromise agreement was valid.

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Guevara v. Guevara was inapplicable. - Following a review of the provision in the agreement where full and complete payment was made to Tasiana in the amount of P800,000, it was clear that there was no attempt to settle or distribute Francisco’s estate before the probate of his will. - Its object was conveyance by Tasiana of her individual share and interest, actual or eventual, in the estates of Francisco and Josefa.

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A hereditary share in a decedent’s estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Art. 777, NCC.) Thus, there is no legal bar to a successor (with requisite contracting capacity) disposing of his or her hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. The effect of such alienation is limited to what is ultimately adjudicated to the vendor heir. Moreover, as surviving spouse of Francisco’s, Tasiana was a compulsory heir so that her successional interest existed independent of Francisco’s will and testament and would exist even if such were not probated at all. Also, the agreement bound the parties, in their individual capacities, upon the perfection of the contract, even absent a previous authority from the Court. The only difference between an extrajudicial compromise and one submitted and approved by the court is that the latter is enforceable by execution proceedings.

Whether or not the agreement compromises the status and validity of the marriage between Francisco and Tasiana.

- NO. In the very opening paragraph of the agreement itself, she was described as the heir and surviving spouse of Francisco De Borja which was a definite admission of her civil status. Whether or not the compromise agreement had ceased to be valid. - NO. Jose’s act of seeking a court order for the approval and enforcement of the agreement is justified as said agreement had not been abandoned and not invalidated by the inability of the parties to reach a novatory accord in a quest for a more satisfactory compromise following Tasiana’s unilateral attempts to back out from the same.

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A hereditary share in a decedent’s estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Art. 777, NCC.) - Thus, there is no legal bar to a successor (with requisite contracting capacity) disposing of his or her hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. - The effect of such alienation is limited to what is ultimately adjudicated to the vendor heir. - The only difference between an extrajudicial compromise and one submitted and approved by the court is that the latter is enforceable by execution proceedings.

Bonilla v. Barcena Heirs have right to be substituted for deceased in an action that survives. - On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title over certain parcels of land located in Abra. - On August 4, 1975, the defendants filed a motion to dismiss the complaint on the ground that Fortunata Barcena is dead and, therefore, has no legal capacity to sue. - During the hearing, counsel for the plaintiff confirmed the death of Fortunata Barcena and asked for substitution by her minor children and her husband, the petitioners herein; but the court after the hearing immediately dismissed the case on the ground that a dead person cannot be a real party in interest and has no legal personality to sue. - Whether the court acted correctly in dismissing the complaint on the ground that the plaintiff, who had died pending the proceedings, has no more personality to sue. - While it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in pursuing the case up to its completion. - The court had acquired jurisdiction over the person of the deceased. If thereafter she died, Section 16, Rule 3 of the Rules of Court provides that "whenever a party to a pending case dies . . . it shall be the duty of his attorney to inform the court promptly of such death . . . and to give the name and residence of his executor, administrator, guardian or other legal representatives." This duty was complied with by the counsel for the deceased plaintiff when he manifested before the respondent Court that Fortunata Barcena died on

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SUCCESSION REVIEWER July 9, 1975 and asked for the proper substitution of parties in the case.

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Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance whether such right be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. When Fortunata Barcena, therefore, died her claim or right to the parcels of land in litigation was not extinguished by her death but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the case. There is, therefore, no reason for the Court to disallow their substitution as parties in interest for the deceased plaintiff. - Likewise, when counsel asked that the minor children be substituted for the deceased and suggested that the uncle be appointed as guardian ad litem for them because their father is busy earning a living for the family, it is grave error for the court to refuse the request for substitution on the ground that the children were still minors and cannot sue, because it ought to know that Section 17, Rule 3 of the Rules of Court, directs the Court to appoint a guardian ad litem for the minor. - From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of right thereto except by the methods provided for by law. The moment of death is the determining factor where the heirs acquire a definite right to the inheritance whether such right to be pure or contingent. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. Cases for Articles 774-777

Heirs of Spouses Sandejas v. Lina - Eliosoro Sandejas was appointed administrator for the settlement of the estate of his wife, Remedios. - He eventually sold parcels of land to Alex Lina, who agreed to buy it for P1M. - Eliosoro eventually died and Alex Lina was appointed new administrator of the estate of Remedios. - The heirs of Sandejas now filed a MR for the appointment of a new administrator. - Lina filed a Motion to approve the deed of conditional sale.

- YES. SC held that probate court has jurisdiction over it since it covers all matters relating to the settlement of estates and the probate of wills of deceased persons, including the appointment and removal of administrators and executors. It also extends to incidental and collateral matters such as selling, mortgaging or otherwise encumbering real property belonging to the estate.

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The stipulation requiring court approval does not affect the validity and the effectivity of the sale as regards the selling heirs. It merely implies that that the property may be taken out of custodia legis, only with court’s permission.

Whether or not Lina can apply to the court for the approval of the sale. - Because the other heirs did not consent to the sale of their ideal shares in the disputed lots, it is only limited to the proindiviso share of Eliosoro. - The proper party must be the one who is to be benefited or injured by the judgment, or one who is to be entitled to the avails of the suit. Whether or not Eliosoro is in bad faith - NO. SC held that he is not in bad faith because: (1) he informed Lina of the need to secure court approval prior to the sale of the lots, and (2) he did not promise he could obtain the approval. How much is Eliosoro’s share in the property? - SC held that his share is 11/20 of the entire property because he owned ½ of these lots plus a further 1/10 of the remaining half, in his capacity as one of the legal heirs.

Limjoco v. Intestate of Flagrante - Assailed is the decision of the Public Service Commission granting a certificate of public convenience to install, maintain and operate an ice plant in San Juan to the Intestate Estate of Pedro O. Fragrante. - Fragrante died pending the conclusion of his application to Commission. - The Commission granted the application in view of the financial ability of the estate to maintain and operate the ice plant

Whether or not Eliosoro is legally obligated to convey title to the property which is found by the lower court to be a contract to sell. - NO. Because the condition is the procurement of court approval and not the payment of the purchase price.

Whether the substitution of the legal representative of the Estate of Fragante for the latter as party applicant in the case pending before the Commission be allowed. - Yes. Had Fragante not died, he would have the right to prosecute his application to its final conclusion. This right did not lapse through his death. Hence, it constitutes a part of the assets of his estate, for such a right was property despite the possibility that the application may be denied. A certificate of public convenience once granted should descend to the estate as an asset. Such certificate would certainly be property and the right to acquire such belonged to the decedent in his lifetime and survived to his estate and judicial administrator after his death.

Whether or not the probate court has jurisdiction over the approval of the sale.

Whether the Estate of Fragante is a person within the meaning of the Public Service Act.

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SUCCESSION REVIEWER - Yes. The Supreme Court of Indiana declared that a collection of property to which the law attributes the capacity of having rights and duties, such as the estate of a deceased, is an artificial person, and to rule otherwise would result in a failure of justice. In this case, there would also be a failure of justice if the estate would not be regarded as a person as it would prejudice Fragante’s investment of Php. 35T. Whether the Estate of Fragante can be considered as a citizen of the Philippines. - Yes. The fiction of extension of the citizenship of Fragante is grounded upon the same principle as that of the extension of his personality. - The decedent’s rights which by their nature are not extinguished by death go to make up a part and parcel of the assets of his estate, which, being placed under the control and management of the administrator, can not be exercised but by him in representation of the estate for the benefit of the creditors, devisees or legatees and heirs. - Real property, as estate or interest, have also been declared to include every species of title, inchoate or complete and embrace rights which lie in contract, whether executory or executed. - It is the estate or mass of property, rights and assets left by the decedent, instead of the heirs directly, that becomes vested and charged with his rights and obligations which survive after his demise. This doctrine is an abrogation of art. 661 of the Civil Code brought about by the enactment of the Code of Civil Procedure.

 Some observations –



Enumeration cannot satisfactorily accommodate the system of legitimes. • Legal or intestate succession operates only in default of a will [Arts960 and 961], while the legitime operates whether or not there is a will, in fact prevails over a will. • There are instances where the rules on legitime [Arts 887..] operate, to the exclusion of the rules on intestacy [Arts 960..] • It is therefore best for clarity, to classify succession to the legitime as a separate and distinct kind of succession, which, for want of a better term, can be denominated compulsory succession.



Until the effectivity of the Family Code, there was one exceptional case of succession by contract [contractual succession] found in Article 130 of Civil Code. ART 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession.

•

ART. 778. Succession may be: (1) Testamentary (2) Legal or Intestate, or (3) Mixed ART. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. ART. 780. Mixed succession is that effected partly by will and partly by operation of law.  3 KINDS OF SUCCESSION ACCDG TO ART. 778:

1. TESTAMENTARY • That which results from the designation of an heir, made in a will. 2. LEGAL OR INTESTATE • Lost definition: “takes place by operation of law in the absence of a valid will.” 3. MIXED • That effected partly by will and partly by operation of law.

Donations propter nuptias of future property, made by one of the future spouses to the other, took effect mortis cause, and had only to be done in the marriage settlements, which were governed only by the Statute of Frauds. • It was the only instance of Contractual Succession in our civil law.

•

This has been eliminated by the Family Code in Article 84 paragraph 2: “Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.” • Since under the provision, any donation of future property between the affianced couple is to be governed by the rules of testamentary succession and the forms of wills, contractual succession no longer exists in this jurisdiction. • Such a donation becomes an ordinary case of testamentary succession.  FOUR KINDS OF SUCCESSION ACCORDING TO

IMPORTANCE [Prof. Balane] 1. COMPULSORY • Succession to the legitime • Prevails over all other kinds

Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances & Ryan Quan  8

1ST SEM 2006-2007

SUCCESSION REVIEWER 2. TESTAMENTARY [Art. 779] • Succession by will 3. INTESTATE • Succession in default of a will 4. MIXED [Art. 780] • Not a distinct kind really, but a combination of any two or all of the first three.

ART. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession.  Article 781 is best deleted; it serves only to confuse.  The inheritance includes only those things enumerated

in Article 776. Whatever accrues thereto after the decedent’s death [which is when the succession opens] belongs to the heir, not by virtue of succession, but by virtue of ownership.  To say, as Art781 does, that accruals to the inheritance

after the decedent’s death are included in the inheritance is to negate the principle in Art777 that transmission takes place precisely at the moment of death.



Once the decedent dies and the heir inherits, the fruits of the property or inheritance belongs to the heir by accession, and not by succession. This is so even if the heir does not actually receive the inheritance.  Art781 should have left well enough alone.  Question – If the assets left behind by the decedent are

not sufficient to pay the debts, may the creditors claims the fruits produced by the decedent’s property after his death? Or do these fruits pertain to the heirs?  But wouldn’t the debts be deducted from the estate first before the properties are distributed to the heirs?

ART. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will.  HEIR – person called to the succession either by will or

by law DEVISEE – persons to whom gifts of real property are given by virtue of a will. LEGATEE – persons to whom gifts of personal property are given by virtue of a will.

 The distinction between an heir and a devisee or

legatee is important because on this distinction depends the correct application of Art854 on preterition.  In cases of preterition, the institution of an heir is annulled, while the institution of legatees and devisees is effective to the extent that the legitimes are not impaired.  The codal definitions are neither clear nor very helpful.

They are so open-ended that an heir can fall under the definition of a legatee/devisee and vice-versa.  “I give X my fishpond in Navotas” – by definition of heir, is not X called to the succession by provision of a will and therefore an heir?  “I give X ¼ of my estate” – if in the partition, X receives a fishpond, can X, by definition, not be considered a devisee, having received a gift of real property by will?  The definitions of the Spanish Code in conjunction with

Castan’s explanations are more helpful:

•

HEIR – one who succeeds to the WHOLE or an Aliquot part of the inheritance • DEVISEE / LEGATEE – those who succeed to definite, specific, and individual properties. Case for Arts. 778-782 DKC Holdings Corp. v. CA - DKC entered into a Contract of Lease with Option to Buy with Encarnacion Bartolome, whereby DKC was given the option to lease or lease with purchase a land belonging to Encarnacion, which option must be exercised within 2 years from the signing of the Contract. - In turn, DKC undertook to pay Php 3,000 a month for the reservation of its option. - DKC regularly paid the monthly Php 3,000 until Encarnacion’s death. Thereafter, DKC coursed its payment to Victor, the son and sole heir of Encarnacion. However, Victor refused to accept these payments. - Meanwhile, Victor executed an Affidavit of Self-Adjudication over all the properties of Encarnacion, including the subject lot. Thus, a new TCT was issued in the name of Victor. - Later, DKC gave notice to Victor that it was exercising its option to lease the property tendering the amount of Php 15,000 as rent. - Again, Victor refused to accept the payment and to surrender passion of the property. - DKC thus opened a savings account in the name of Victor and deposited therein the rental fee. - DKC also tried to register and annotate the Contract on the title of Victor but the Register of Deeds refused to register or annotate the same. - Thus, DKC filed a complaint for specific performance and damages. - In the course of the proceedings, a certain Lozano, who claimed that he was and has been a tenant-tiller of the lot for 45 years, filed a Motion for Intervention. - The RTC denied Lozano’s Motion and dismissed the complaint filed by DKC.

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SUCCESSION REVIEWER - Whether the Contract of Lease with Option to Buy entered into by the late Encarnacion Bartolome with DKC was terminated upon her death or whether it binds her sole heir, Victor, even after her demise. - The SC held that Victor is bound by the Contract of Lease with Option to Buy. - Article 1311 of the NCC provides: Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law. - In this case, there is neither contractual stipulation nor legal provision making the rights and obligation under the contract intransmissible. More importantly, the nature of the rights and obligations therein are, by their nature, transmissible. - Where the service or act is of such a character that it may be performed by another, or where the contract, by its terms, shows the performance by others was contemplated, death does not terminate the contract or excuse nonperformance. - In this case, there is no personal act required from the late Encarnacion. Rather, the obligation of Encarnacion to deliver possession of the property may very well be performed by Victor. - Also, the subject matter of the contract is a lease, a property right. The death of a party does not excuse nonperformance of a contract which involves a property right, and the rights and obligations thereunder pass to the personal representatives of the deceased. - Since DKC exercised its option in accordance with the contract, the SC held that Victor has the obligation to surrender possession of and lease of premises for 6 years. However, SC held that the issue of tenancy should be ventilated in another proceeding.

-

The general rule, therefore, is that heirs are bound by contracts entered into by their predecessors-in-interest except when the rights and obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or (3) provision of law. - Where acts stipulated in a contract require the exercise of special knowledge, genius, skill, taste, ability, experience, judgment, discretion, integrity, or other personal qualification of one or both parties, the agreement is of personal nature, and terminates on the death of the party who is required to render such service. - There is privity of interest between an heir and his deceased predecessor – he only succeeds to what rights his predecessor had and what is valid and binding against the latter is also valid and binding against the former. - The death of a party does not excuse nonperformance of a contract which involves a property right, and the rights and obligations thereunder pass to the personal representatives of the deceased. Similarly, nonperformance is not excused by the death of the party when the other party has a property interest in the subject matter of the contract.

Subsection 1 – Wills in General ART. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death.  Operative Words in the Definition

1. ACT

•

The definition of a will as an act is too broad and should have been more clearly delimited with a more specific term such as instrument or document, in view of the provision of Art804 that “every will must be in writing.”

•

NUNCUPATIVE or oral wills are not recognized in our Code, unlike the Spanish Civil Code wherein military wills could be oral. 2. PERMITTED • Will-making is purely statutory. 3. FORMALITIES PRESCRIBED BY LAW • The requirement of form prescribed respectively for attested and holographic wills. 4. CONTROL TO A CERTAIN DEGREE • The testator’s power of testamentary disposition is limited by the rules on legitimes. 5. AFTER HIS DEATH

•

Testamentary succession, like all other kinds of succession in our Code, is mortis causa.

CHAPTER 2 TESTAMENTARY SUCCESSION

SECTION 1 – WILLS Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances & Ryan Quan  10

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SUCCESSION REVIEWER

provided by law, such as the acknowledgment of a natural child or the order that the patria potestas of the widow shall continue after her remarriage, can be give effect even without probating the will.

CHARACTERISTICS OF WILLS 1.

PURELY PERSONAL • Articles 784, 785 and 787

2. FREE AND INTELLIGENT • Article 839 • The testator’s consent should not be vitiated by the causes mentioned in Article 839 paragraphs 2-6 on Insanity, Violence, Intimidation, Undue Influence, Fraud and Mistake.

 Questions



3. SOLEMN AND FORMAL • Articles 804-814 and 820-821 • The requirements of form depend on whether the will is attested or holographic. • Articles 805-808 and 820-821 govern attested wills. Articles 810-814 govern holographic wills. Article 804 applies to both.



4. REVOCABLE AND AMBULATORY • Article 828 5. MORTIS CAUSA • Article 783 • This is a necessary consequence of Articles 774 and 777. 6. INDIVIDUAL • Article 818 • Joint wills jurisdiction.

are

prohibited

in

this

7. EXECUTED WITH ANIMUS TESTANDI • This characteristic is implied in Article 783

•

Rizal’s valedictory poem “Ultimo Adios” was not a will. An instrument which merely expresses a last wish as a thought or advice but does not contain a disposition of property and was not executed with animus testandi, cannot be legally considered a will. 8. EXECUTED WITH TESTAMENTARY CAPACITY • Articles 796 – 803 on testamentary capacity and intent 9. UNILATERAL • This characteristic is implied in Article 783 10. DISPOSITIVE OF PROPERTY

•

Article 783 seems to consider the disposition of the testator’s estate mortis causa as the purpose of will-making.

The present Civil Code seems to limit the concept of a will to a disposition of property to take effect upon and after death.  It is only when the will disposes of property, wither directly or indirectly, that it has to be probated. When there is no disposition of property, it is submitted that, although the instrument may be considered as a will, it does not have to be probated; its dispositions which are 

Would a document merely appointing an executor, not containing any dispositive provision, have to comply with the formal requirements of a will in order to be effective? Would such a document have to be probated? • Justice Hofilena says NO, because there is no disposition and such appointment would not be under the category of a will. Therefore, the formal requirements of a will do not apply. Would a document containing only a disinheriting clause have to be in the form of a will and be probated? [Article 916] • YES. According to Art916, disinheritance can be effected only through a will wherein the legal cause therefore shall be specified. • A valid disinheritance is in effect a disposition of the property of the testator in favor of those who would succeed in the absence of the disinherited heir. Unless the will is probated, the disinheritance cannot be given effect.

CASES Vitug v. CA - Romarico Vitug and Nenita Alonte were co-administrators of Dolores Vitug’s (deceased) estate. Rowena Corona was the executrix. - Romarico, the deceased’s husband, filed a motion with the probate court asking for authority to sell certain shares of stock and real properties belonging to the estate to cover alleged advances to the estate, which he claimed as personal funds. - The advances were used to pay estate taxes. - Corona opposed the motion on ground that the advances came from a savings account which formed part of the conjugal partnership properties and is part of the estate. Thus, there was no ground for reimbursement. - Romarico claims that the funds are his exclusive property, having been acquired through a survivorship agreement executed with his late wife and the bank. - The agreement stated that after the death of either one of the spouses, the savings account shall belong to and be the sole property of the survivor, and shall be payable to and collectible or withdrawable by such survivor. - The lower court upheld the validity of the agreement and granted the motion to sell.

-

CA reversed stating that the survivorship agreement constitutes a conveyance mortis causa which did not comply with the formalities of a valid will. Assuming that it was a donation inter vivos, it is a prohibited donation (donation between spouses). - WON the survivorship agreement was valid. - YES.

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3. The determination of the portions they are to receive.

-

The conveyance is not mortis causa, which should be embodied in a will. A will is a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. The bequest or devise must pertain to the testator. - In this case, the savings account involved was in the nature of conjugal funds. - Since it was not shown that the funds belonged exclusively to one party, it is presumed to be conjugal.

-

It is also not a donation inter vivos because it was to take effect after the death of one party. It is also not a donation between spouses because it involved no conveyance of a spouse’s own properties to the other. - It was an error to include the savings account in the inventory of the deceased’s assets because it is the separate property of Romarico. - Thus, Romarico had the right to claim reimbursement.

-

A will is a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. - Survivorship agreements are permitted by the NCC. However, its operation or effect must not be violative of the law (i.e. used as a cloak to hide an inofficious donation or to transfer property in fraud of creditors or to defeat the legitime of a forced heir).

ART. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.  This

provision gives the will its purely personal character.

 NON-DELEGABILITY OF WILL-MAKING –

 

It is the exercise of the disposing power that cannot be delegated. Obviously, mechanical aspects, such as typing, do not fall within the prohibition.

ART. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. 

What Constitute the Essence of Will-Making or the Exercise of the Disposing Power? The ff are nondelegable: 1. The designation of heirs, devisees or legatees 2. The duration of efficacy of such designation, including such things as conditions, terms, substitutions;

ART. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.  Exception to the Rule on Non-Delegability of Will-

Making. Without this provision, the things allowed to be delegated here would be non-delegable.  TWO THINGS MUST BE DETERMINED BY THE

TESTATOR – 1. The property or amount of money to be given; and 2. The class or the cause to be benefited.  TWO

THINGS MAY BE DELEGATED BY THE TESTATOR – 1. The designation of persons, institutions, or establishments within the class or cause; 2. The manner of distribution

 Question

– Suppose the testator specified the recipients by specific designation but left to the 3rd person the determination of the sharing, ex. “I leave P500,000 for the PNRC, the SPCA, and the Tala Leprosarium, to be distributed among these institutions in such proportions as my executor may determine.” Valid?  One View – Article 785 seems to prohibit this, because the recipients are referred to by name and therefore the portions they are to take must be determined by the testator. Article 786 applies only where the testator merely specifies the class or the cause but not the specific recipients.



Contra – This actually involves a lesser discretion for the 3rd person than the instances allowed by Article 786 and should be allowed.

ART. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.  This rule is consistent with, and reinforces, the purely

person character of a will, laid down in Article 784.  This article should be interpreted rationally. It is not to

be so interpreted as to make it clash with the principle expressed in Articles 1041-1057 of the NCC that the

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SUCCESSION REVIEWER heir is free to accept or reject the testamentary disposition.  What this article prohibits is the delegation to a 3rd person of the power to decide whether a disposition should take effect or not.

b.

His right in the share of Dona Luisa is expressly left to him as a legacy. - The reservation of property in a will to the name of specific persons shall be considered as a legacy. - Where the will authorizes the executor to pay the legacies, expressly or by natural inference, action will lie by the legatee against the executor to compel allowance and payment hereof. If the executor is not authorized, action will lie against the heirs. An heir on the other hand, can maintain no such action against the executor.

Case for Arts. 783-787 Del Rosario v. Del Rosario - Don Nicolas left a will awarding parts of his estate to his nephews, Don Enrique and plaintiff, Don Ramon subject to certain conditions. (See case page 322) - He also left a part of his estate to his siblings, one of which is Dona Luisa. And upon the latter’s death, her share shall be divided between her two nephews after P1,000 has been given to Dona Luisa’s male children. - Doña Honorata, Don Nicolas’ wife, left her estate to his husband. Upon the husband’s death, it shall be passed on to her husband’s siblings. However, upon the death of her sister-in-law, Dona Luisa, same provisions shall apply as what is stated in her husband’s will. - Plaintiff now institutes this present case against the executor, who is one of his uncles, Don Clemente. He seeks to be entitled to a certain part of the share of the estates left to Dona Luisa during her life, and he asks that the executor be directed to render accounts and to proceed to the partition of the estate. Whether or not he is entitled to any share of the estate left by the spouses. - Plaintiff is not entitled to any allowance under the will of Don Nicolas because: a. He is only allowed such amount if widow remarries and he is still continuing studies, which are not present in this case. b. His interest in the share of Dona Luisa in Don Nicolas’ will was given to him as an heir and not as a legatee. - He is not entitled to live in the widow’s house because such was terminated upon the widow’s death.

-

He is entitled to be paid the sum of P1500 given to Don Enrique in addition to the P1500 pesos already received by plaintiff under the 9th clause of Dona Honorata’s will because: a. The will specifically awarded the said amounts to him as a legatee and the fact that they were called natural sons of Don Clemente only serves as a further description and needs no proof to be given. b. By virtue of the right of accretion, plaintiff is also entitled to the other P1500 share of Don Enrique since the latter died before Don Honorata. - He is entitled to the share of the estate left by the will of Dona Honorata to Dona Luisa during her life, after deducting P1,000 because: a. The share of plaintiff from Dona Luisa’s share is given to him whether or not Dona Luisa dies before or after Dona Honorata.

ART. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred.  Articles 788-794 lays down the rules of construction

and interpretation.  The underlying principle here is that testacy is preferred

to intestacy, because the former is the express will of the decedent whereas the latter is only his implied will.  In statutory construction, the canon is: “That the thing may rather be effective than be without effect.”  A similar principle in contractual interpretation is found

in Art1373, which provides that “if some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual.”

ART. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, of the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations.  2 KINDS OF AMBIGUITY REFERRED TO –

1.

LATENT – not obvious on the face of the will • When there is an imperfect description or when no person or property exactly answers the description a) Latent as to PERSON – “I institute to ¼ of my estate my first cousin Jose” and the testator has more than one first cousin named Jose. b) Latent as to PROPERTY – “I devise to my cousin Pacifico my fishpond in

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SUCCESSION REVIEWER Roxas City” and the testator has more than one fishpond in Roxas City.

2.

PATENT – obvious on the face of the will • When an uncertainty arises upon the face of the will, as to the application of any of its provisions a) Patent as to PERSON – “I institute ¼ of my estate to some of my first cousins. b) Patent as to PROPERTY – “I bequeath to my cousin Pacifico some of my cars.”

•

In both cases, the ambiguity is evident from a reading of the testamentary provisions themselves; the ambiguity is patent [patere – to be exposed]

 HOW TO DEAL WITH AMBIGUITIES –



The provisions of this article do not make a distinction in the solution of the problem of ambiguities – whether latent or patent. • Hence, the distinction between the 2 kinds of ambiguity is, in the light of the codal provisions, an all but theoretical one.



The ambiguity should, as far as possible, be cleared up or resolved, in order to give effect to the testamentary disposition. • Based on principle that testacy is preferred to intestacy.



Ambiguity may be resolved using any evidence admissible and relevant, excluding the oral declarations of the testator as to his intention. • Reason for the statutory exclusion is that a dead man cannot refute a tale.

ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense.  Similar rules are laid down in Rule 130 Sections 10 and

14 of the Rules of Court – Sec10. Interpretation of a writing according to its legal meaning – The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise.

Sec14. Peculiar signification of terms – The terms of a writing are presumed to have been used in their primary and general application, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.  In contractual interpretation, a similar principle is

expressed in Article 1370 par1: Art1370. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control.

ART. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.  A similar rule is found in Rule 130 Sec11 of the RoC –

Sec11. Instrument construed so as to give effect to all provisions – In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

 In contractual interpretation, Articles 1373 and 1374 lay

down similar principles – Art1373. If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. Art1374. The various stipulations of a contract shall be interpreted together, attributing to the doubtful one that sense which may result from all of them taken jointly.

ART. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made.  This

article makes applicable to wills the SEVERABILITY OR SEPARABILITY PRINCIPLE in statutory construction frequently expressly provided in a separability clause.

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SUCCESSION REVIEWER  The source of this article is Art2085 of the German Civil

Code which provides that the invalidity of one of several dispositions contained in a will results in the invalidity of the other dispositions only if it is to be presumed that the testator would not have made these if the invalid disposition had not been made.

ART. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention.

part or interest, unless the testator expressly declares that he gives the thing in its entirety.  GENERAL RULE – in a legacy or devise the testator

gives exactly the interest he has in the thing. EXCEPTIONS – he can give a less interest [Art794] or a greater interest [Art929] than he has. 

In the latter case, if the person owning the interest to be acquired does not wish to part with it, the solution in Art931 can be applied wherein the legatee or devisee shall be entitled only to the JUST VALUE OF THE INTEREST that should have been acquired.

 This article creates problems which would not have

existed had it not been so nonchalantly incorporated in the Code, an implant from the Code of Civil Procedure and ultimately from American law.  The problem springs from the fact that this article

makes the will speak as of the time it is made, rather than at the time of the decedent’s death [which is more logical because that is when the will takes effect according to Article 777].  Illustration – X executes a will in 1985 containing a

legacy: “I give to M all my shares in BPI.” The testator dies in 1990, owning at the time of his death ten times as many BPI shares as he did when he made the will.

•

Under Article 793, the shares acquired after the will was executed are NOT included in the legacy.  Article

793 therefore departs from the codal philosophy of Articles 774 and 776 and constitutes an EXCEPTION to the concept of succession as linked to death and rendered legally effective by death.

 Prof. Balane suggests the provisions be reworded as:

“Property acquired after the making of a will passes thereby unless the contrary clearly appears from the words or the context of the will.”  In the meantime, it is suggested that a liberal application of the article be allowed.  Can the word “expressly” in this article be interpreted to mean “clearly” even if it might be stretching a point?

ART. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest.  This article should be read together with Art929, which

provides that “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

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SUCCESSION REVIEWER

RE-CAP OF THE RULES ON INTERPRETATION AND CONSTRUCTION OF WILLS 2.

In case of doubt, testacy is preferred and disposition should be interpreted in manner which would make it operative.

3.

Two kinds of Ambiguities • Latent – imperfect description or when no person or property exactly answers to description. • Patent – based on the face of the will as to the application of any of its provisions

4.

In case of ambiguity, may resort to any evidence, even extrinsic evidence, but may not resort to oral declarations of the testator as to his intention.

5.

Words of a will shall be taken in their ordinary and grammatical sense, unless: • Another sense or meaning is clearly intended to be used, and • That other sense or meaning can be ascertained

6.

Technical words shall be taken in technical sense, except: • When context clearly indicates otherwise • Will was drawn solely by the testator and he was not acquainted with the technical meaning of such word.

7.

Words are to receive interpretation which will give it some effect.

8.

Invalidity of one disposition in a will does not mean the other dispositions are also invalid. • But invalidity of one provision affects the other if it is to be presumed that the testator would not have made such other disposition if the first invalid disposition had not been made.

9.

ART. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made.  ASPECTS OF VALIDITY OF WILLS

A.

EXTRINSIC – refers to the requirement of form / formal validity 1. Governing law as to TIME a. Filipinos – law in force when the will was executed [Art795] b. Foreigners – same rile. The assumption here is that the will is being probated in the Philippines. 2. Governing law as to PLACE  Filipinos or Foreigners a. Law of citizenship b. Law of domicile c. Law of residence d. Law of place of execution, or e. Philippine law  Articles 815-817 - Rules of formal validity a. Filipino Abroad - According to the law in the country in which he may be and may be probated in the Philippines b. Alien abroad - Has effect in the Philippines if made according to: Law of place where he resides, Law of his own country or Philippine law c. Alien in the phils. - Valid in Phils. as if executed according to Phil. laws, if: Made according to law of country which he is a citizen or subject, and May be proved and allowed by law of his own country.

B.

INTRINSIC – refers to the substance of the provisions / substantive validity 1.

Governing law as to TIME a. Filipinos – law at the time of death, in connection with Art2263. b. Foreigners – depends on their personal law [Art16, par2 and Art1039]

2.

Governing law as to PLACE a. Filipinos – Philippine law [Art16 par2 and Art1039] b. Foreigners – their national law [Art16 par2 and Art1039]

Property that is acquired by the testator after the will was executed shall only be transmitted along with those in the will, if the testator expressly states in the will that such is his intention.

10. A devise of legacy shall transmit the whole extent of the testator’s interest in the property disposed.

 Art2263 provides that “Rights to the inheritance of a

person who died, with or without a will, before the effectivity of this Code [August 30, 1950], shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be

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SUCCESSION REVIEWER permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code.” 

Art16 par2 provides that “intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.”

 While Art1039 provides that “Capacity to Succeed is

governed by the law of the nation of the decedent.” Cases for Arts. 788-795 Uriarte v. CFI - Vicente Uriarte instituted a special proceeding for the settlement of the estate of Don Juan Uriarte before the CFI of Negros. - Vicente Uriarte contends that he is an acknowledged son of the deceased and that as the natural son, he should be considered as the sole heir. (It appears that Vicente instituted a case before the same court for his acknowledgment as a natural son, however such case is yet to attain finality.) - Higinio Uriarte filed an opposition to the special proceeding alleging that Don Juan Uriarte executed a Last Will and Testament in Spain. - In another occasion, Juan Zamacona commenced a special proceeding for the probate of the last will of Don Juan before the CFI of Manila. - At the same time, Juan Zamacona also filed a Motion to Dismiss on the special proceeding instituted by Vicente alleging that by virtue of the will executed by Don Juan, there is no legal basis to proceed in the intestate proceeding and that Vicente has no legal standing to initiate said proceeding. - The CFI of Negros accordingly dismissed the case. To protect his interest, Vicente Uriarte filed an Omnibus Motion praying that he be allowed to Intervene before the CFI of Manila or that the proceedings therein be dismissed. Whether or not the testate proceeding filed by Juan Zamacona should take precedence over the intestate proceeding instituted by Vicente - The SC held that in accordance with well settled jurisprudence, testate proceedings for the settlement of the estate of a deceased person shall take precedence over intestate proceedings over the same. - This doctrine is in accord with the principle that TESTACY is preferred to INTESTACY. - Thus, in if in the case of intestate proceedings pending before a court, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at the stage an administrator has already been appointed.

Which of the two courts is the proper venue for the settlement of estate of Don Juan - The SC held that the proper venue should have been with the CFI of Negros. - The Courts of First Instance is granted the original and exclusive jurisdiction over all matters of probate (this includes testate and intestate proceedings) - In this light, both the CFI of Manila and Negros have jurisdiction over the subject matter. Thus, the question boils down to where the proper venue lies. - Venue in the settlement of an estate, if the decedent is an inhabitant of foreign country, is in the CFI of any province on which the decedent had an estate. This is true for both the CFI of Manila and Negros. - Although as declared above that an intestate intestate proceeding should give way to testate proceedings, records show that expediency would have been achieved if Zamacona filed the petition in the Negros Court. - The Negros court was already informed of the existence of a will by Higinio and that in fact the latter was requested to submit a copy of the said will. - But since venue is a waiveable defect, Vicente is barred by laches from raising the same as it was almost a year when he raised the objection. - Testacy is preferred to Intestacy. - If in the case of intestate proceedings pending before a court, it is found that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at the stage an administrator has already been appointed. - This is without prejudice that should the alleged will be rejected or disapproved, the proceeding shall continue as an intestacy.

Enriquez, et al. v. Abadia, et al. - In 1923, Fr. Sancho Abadia of Talisay, Cebu executed a document purporting to be his Last Will and Testament covering his properties the estimated value of which was P8000 when he died in 1943. - Andres Enriquez, one of the legatees, filed a petition for its probate in the CFI of Cebu, to the opposition of the late priest’s cousins and nephews. - One of the witnesses (the other two have died) related that in his presence and of his co-witnesses, Fr. Abadia wrote out in longhand in Spanish which the testator spoke and understood; signed on the left hand margin each of the three pages, numbered the same with Arabic numerals, and signed the last page after declaring that it was his last will, after which the three witnesses signed on the last page as well.

-

In 1923, long before the New Civil Code was in force, holographic wills (as the one prepared by Fr. Abadia, determined as such by the lower court) were invalid. - The law at the time also required numbering correlatively each page in letters and signing on the left hand margin by the testator and by the three attesting witnesses on each of the three pages, among others, which were not followed in the present will. - However, the lower court said that since the New Civil Code was already in effect at the time of the hearing and the making of the decision in 1952, a liberal view ought to be

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SUCCESSION REVIEWER taken to carry out the intention of the testator which is the controlling factor and which may override any defect in form. Whether or not the provisions of the New Civil Code which allowed holographic wills may be applied to validate Fr. Abadia’s will. - NO. No subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature cannot validate void wills. - Art. 795 of the New Civil Code provides: “The validity of a will as to its form depends upon the observance of the law in force at the time it is made.” - The above provision weight of authority to the effect that the validity of a will is to be judged not by the law in force at the time of the testator’s death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. - The wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. - The position that subsequent statutes should be applied to validate wills defectively executed according to the law in force at the time of execution is untenable. - The reason for the above is that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution. - Art. 795 of the New Civil Code provides: “The validity of a will as to its form depends upon the observance of the law in force at the time it is made.” - The above provision weight of authority to the effect that the validity of a will is to be judged not by the law in force at the time of the testator’s death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. - No subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature cannot validate void wills.

In re Estate of Calderon - This is an appeal made by the attorneys for Basilla Salteras, Potenciana de la Cruz and Benigno Calderon, the latter as the natural guardian of the minors Maria and Josefa Calderon from an order which directed that the administrator be authorized to make a conveyance of property, a house and lot, situate in Binondo to Petronila Eugenio. - The case questions on 1) How and what manner the provisions made by the testator, the deceased Miguel Fable, in clause 12 of his will should be complied with; and 2) Who should receive pro rata the legacy specified in the said clause.

-

The said clause states that the property on Calle Analogue will be left as legacy to his wife under the condition that with its revenue she shall care for and educate and assist during

-

-

-

-

her widowhood the children of their servants and the two children of D. Lucas y Eugenio; In the same will, Miguel Fabie authorized her wife to provide in her will that property be delivered to the persons who may have assisted and cared for her during her widowhood until her death and to sell the property so that the proceeds to be divided if there be any foreseeable disagreements over the property; The same will also provided that should the wife forget to make a will, that it be complied with and fulfilled by his brother Ramon Fable. The testator’s will, as recorded in the abovementioned is so clear and definite that in order duly to comply therewith, it needs but be determined who are the persons that must be considered as the legatees on account of their having served and cared for the testator’s widow until their death. From a due examination of the evidence presented at the trial, those entitled are Encarnacion Gutierrez Calderon, Filomena Calderon, Potenciana de la Cruz, Basilisa Salteras, Candida Reyes, Benita Garcia, Maria and Josefa Calderon and Petronilla Eugenio. The minor children were also of service to the widow, and should equally receive a pro-rate share on the property’s value. It was not only Petronila who had served the widow, there were many others and she should not alone get the property. Since some of them did so, as proven by the record, the law must be fulfilled in accordance with the tenor of the last will of the testator. It is the settled rule that the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation.

Balanay v. Martinez - Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal properties as if they were all owned by her, disposing of her husband's one-half share, and providing that the properties should not be divided during her husband's lifetime but should remain intact and that the legitimes should be paid in cash to be satisfied out of the fruits of the properties. - Felix Balanay, Jr. filed a petition for the approval of his mother's will which was opposed by the husband and some of her children. - During the pendency of the probate proceedings petitioner submitted to the court a document showing his father's conformity to the testamentary distribution, renouncing his hereditary rights in favor of his children in deference to the memory of his wife. - The Court denied the opposition, set for hearing the probate of the will and gave effect to the affidavit and conformity of the surviving spouse. - Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in behalf of the petitioner, moved to dismiss the probate proceedings and requested authority to proceed by intestate proceedings on the ground that the will was void (because Leodegaria cannot validly dispose of her husband’s share) , which motion was granted by the probate court. The Court, however, did not abrogate its prior orders to proceed with the probate proceedings. - Petitioner impugned the order of dismissal claiming that Atty. Montaña had no authority to ask for the dismissal of the petition for allowance of will and that the court erred in declaring the will void before resolving the question of its formal validity.

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Whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. - NO. In view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. - The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue Whether the court erred in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June '8, 1973 it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. - YES. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to he presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). - "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" - Void provisions in the will: 1. The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and pro indiviso 2. that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article '080 of the Civil Code Whether an heir may validly renounce his share - YES. Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. '79['] and '04', Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. '050['] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected. - Generally, the probate of a will is mandatory and it is the duty of the court to pass first upon its formal validity except in extreme cases where the will is on its face intrinsically void. - A will is not rendered null and void by reason of the existence of some illegal or void provisions since the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions unless it is to be presumed that the testator would not have

made such other dispositions if the first invalid disposition had not been made; - Where some provisions are valid and others invalid, the valid provisions shall be upheld if they can be separated from the invalid provisions without defeating the intention of the testator or interfering with the general testamentary scheme or doing injustice to the beneficiaries. - The very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby - Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate.

Bellis v. Bellis - Amos Bellis was a citizen of the State of Texas and of the United States. - By his first wife, he had 5 legitimate children; by his second wife, he had 3 legitimate children; and he had 3 illegitimate children. - Amos executed a will in the Philippines, in which he specified how his estate will be divided and distributed. - Subsequently, Amos died, a resident of Texas. - His will was admitted to probate in the CFI of Manila. - The People’s Bank, as executor of will, paid all the bequests included in Amos’ will. - Before closing its administration, the executor submitted its final report and project of partition. - However, 2 of Amos’ illegitimate children filed their oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and therefore compulsory heirs of the deceased. - The CFI issued an order overruling the oppositions and approving the executor’s final account, report and project partition. The lower court, relying upon Art. 16 of the NCC, applied the national law of Amos, which is the Texas law, which did not provide for legitimes. - The illegitimate children thus filed an Appeal. Whether this case falls under Art. 17 of the NCC. - NO.

-

Appellants argue that their case falls under the circumstances mentioned in the 3rd paragraph of Art. 17 in relation to Art. 16 of the NCC. It argues that Art. 17 prevails as the exception to Art. 16. - The SC rule that appellants argument is incorrect. - It ruled that the change in the NCC shows that whatever public policy and good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. Congress has specifically chose to leave the amount of successional rights to the decedent’s national law. Whether Philippine law should govern to Amos’ Philippine estate. - NO. Appellants argued that Amos executed 2 wills – one to govern his Texas estate and the other his Philippine estate – arguing that he intended Philippine law to govern his Philippine estate.

-

The SC held that that a provision in a foreigner’s will to the effect that his properties shall be distributed in accordance

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SUCCESSION REVIEWER with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Art. 16 of the NCC states said national law should govern.

nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

Which law must apply – Texas law or Philippine law? - Texas law applies. - The petitioners admit that Amos was a citizen of State of Texas and that under the laws of Texas, there are no forced heirs of legitimes. - Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos.

ART. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval.

-

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Art. 16: Real property as well as personal property is subject ot the law of the country where it is situated. However, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. Art. 1039: Capacity to succeed is governed by the law of the nation of the decedent.

-

Art. 17: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. - The decedent’s national law governs the (1) order of succession, (2) the amount of successional rights, (3) the intrinsic validity of the provision of the will and (4) the capacity to succeed. - Testamentary provision that successional right to decedent’s estate would be governed by law other than his national law if void, being contrary to article 16 of the NCC.

ART. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity.  Articles 796-801 lay down the rules on testamentary

capacity.

 

 DISQUALIFIED PERSONS

1. THOSE UNDER 18 [ART797]

•

Under EO292, the Administrative Code of 1987, which took effect on November 24, 1989, years are now reckoned according to the Gregorian Calendar. • Sec31 provides for the legal periods a) Year – 12 calendar months b) Month – 30 days, unless specific calendar month is referred to, in which case it shall be computed according to the number of days the specific calendar month contains c) Day – 24 hours d) Night – Sunset to sunrise

Subsection 2 – Testamentary Capacity And Intent ART. 796. All persons who are not expressly prohibited by law may make a will. ART. 797. Persons of either sex under eighteen years of age cannot make a will. ART. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. ART. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the

Testamentary Capacity – testamenti factio; testamentifacción active, the legal capacity to make a will. Who has testamentary capacity? All NATURAL persons, unless disqualified by law. Juridical persons are NOT granted testamentary capacity.

2. THOSE OF UNSOUND MIND [ART798]

•

Unsoundness of Mind [Insanity]  Absence of the qualities of soundness of mind  Defined by the Code only by indirection because only soundness of mind is defined under Art799.

 SOUNDNESS OF MIND [SANITY]



NEGATIVELY 1. Not necessary that testator be possession of reasoning faculties

in

full

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SUCCESSION REVIEWER 2. Not necessary that testator’s mind be wholly unbroken, unimpaired, unshattered by disease, injury or other cause.



POSITIVELY – Ability to know 3 things 1. Nature of estate to be disposed of • Testator should have a fairly accurate knowledge of what he owns. • The more one owns, the less accurate his knowledge of his estate expected to be. 2. Proper objects of one’s bounty; & • Testator should know, under ordinary circumstances, his relatives in the most proximate degrees, his knowledge expectedly decreasing as the degrees become more remote. 3. Character of testamentary act. • It is not required that the testator know the legal nature of a will with the erudition of a civilest. • All that he need know is that the document he is executing is one that disposes of his property upon death.



Legal Importance and Implication of Mental Capacity  Law is interested in the legal consequences of the testator’s mental capacity or incapacity, not in the medical aspects of mental disease.  The testator could be mentally aberrant medically but testamentarily capable, or vice versa, mentally competent medically but testamentarily incompetent.



TEST – as long as the testator, at the time he made the will, was capable of perceiving the three things [nature of estate, objects of bounty, and character of testamentary act], he has testamentary capacity, whatever else he may be medically.

 PRESUMPTION / GENERAL RULE – rebuttable

Presumption of Sanity under Art800.



TWO EXCEPTIONS – when there is a rebuttable presumption of Insanity – 1. When testator, one month or less before the execution of the will, was publicly known to be insane 2. When the testator executed the will after being placed under guardianship or ordered committed, in either case, for insanity under Rules 93 and 101 of the RoC, and before said order has been lifted.

 The time for determining mental capacity



time of execution of the will and no other temporal criterion is to be applied

ART. 802. A married woman may make a will without the consent of her husband, and without the authority of the court.  Sexist provision, contains an erroneous and unintended

suggestion that a married man does not have the same privilege.  Suggested rewording –



“A married person may make a will without his or her spouse’s consent.”

ART. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property.  Sexist provision, contains an erroneous and unintended

suggestion that a married man does not have the same privilege.  Article 97 of the Family Code supersedes this in part

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Art97. Either spouse may dispose by will of his or her interest in the community property.

Cases for Arts. 796-803 Bagtas v. Paguio - This is an appeal from an order of the CFI admitting to probate a document which was offered as the last will and testament of Pioquinto Paguio. - The testator died a year and 5 months following the date of the execution of the will. - For some 14 or 15 years prior to his death, the testator suffered from paralysis of the left side of his body. - A few years prior to his death, his hearing became impaired and he lost the power of speech. - Owing to the paralysis of certain muscles, his head fell to one side and saliva ran from his mouth. However, he retained the use of his right hand, and was able to write fairly well. Through the medium of signs he was able to indicate his wishes to his wife and to other members of his family. - At the time of the execution of the will, there were four testamentary witnesses. - It appears that the testator made notes disposition he desires to make his property, from which his attorney prepared a formal will which was then read to the testator, who assented to it section by section. After which the whole will is read in a loud voice and is then signed by the testator and four witnesses in the presence of each other. Whether the will was executed according to the formalities and requirements of the law. - YES. The SC held that the requirements of the Code of Civil Procedure were fully complied with. Whether the testator was in full enjoyment and use of his mental faculties to execute a valid will.

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SUCCESSION REVIEWER - YES. The is no sufficient evidence to overthrow the legal presumption of a sound mind and disposing memory. - Witnesses testified that, at the time of the execution of the will, the testator was in his right mind and that although serious ill, he indicated by the movements of his head what his wishes were. - The evidence shows that the writing and the execution of the will occupied a period of several hours and that the testator was taking an active part in all the proceedings. - The SC held that that the testimony of the two physicians do not in any way strengthens the argument that the testator was mentally incapacitated. The SC said that their testimony only confirms the fact that the testator had been afflicted with paralysis but neither of them attempted to state what the mental condition of the testator was at the time he executed the will in question. - The SC held that it cannot conclude from this that he was wanting of the necessary mental capacity to dispose of his property by will. - The SC affirmed the order probating the will. - In our jurisdiction, the presumption of law is in favor of the mental capacity of the testator and the burden is upon the contestants of the will to prove the lack of testamentary capacity. - When a testator has never been adjudged insane by a court of competent jurisdiction, there is a presumption of mental soundness which must be overcome by competent proof.

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To constitute a sound mind and disposing memory, it is not necessary that the mind shall be wholly unbroken, unimpaired, and unshattered by disease or otherwise, or that the testator be in full possession of all his reasoning faculties. - Perfect soundness of mind is not essential to testamentary capacity. - Failure of memory is not sufficient unless it be total or extends to his immediate family or property. - The question is that, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will.

Yap Tua v. Yap Ca Kuan & Yap Ca Llu - Yap Tua, through a representative, filed a petition for the probate of the will of Tomasa Elizaga Yap Caong, the deceased. - The will dated 11 August 1909 was signed by Tomasa and 4 other witnesses. - After due hearing, the judge ordered that Tomasa’s will be allowed and admitted to probate.

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Later, Yap Ca Kuan and Yap Ca Llu (the minors) appeared and were interested in the matters of the will. A guardian ad litem (Gabriel) was then appointed. - Gabriel then filed a petition alleging that the will admitted to probate was null because: 1. It was not executed in accordance with the law (specifically with the signing of the witnesses) 2. Tomasa was not mentally capacitated to execute the will due to her sickness 3. Tomasa’s signature was obtained through fraud and illegal influence 4. Tomasa had earlier executed another will dated 06 August 1909 with all the formalities required by law - A rehearing was then ordered by the judge.

1ST SEM 2006-2007 WON the will dated 11 August 1909 executed by Tomasa was valid. - YES. 1. A plan of the room where the will was signed was presented. It was shown that from the bed where Tomasa was lying, it was possible for her to see the table on which the witnesses signed the will. 2. As regard the issue of the soundness of Tomasa’s mind when she executed the will, SC held that in view of the conflicting testimonies and the findings of the lower court, it upheld the conclusion of the lower court that Tomasa had clear knowledge and knew what she was doing at the time she signed the will. 3. Although it was contended that the signature of Tomasa in the latter will varied from the one found in the earlier will, SC held that if Tomasa signed any portion of her name to the will, with the intention to sign the same, that will amount to a signature. The lower court found that no undue influence was exercised over Tomasa when she executed the will. The findings of the lower court, which had the opportunity to see, hear and note the witnessed during examination is accorded great weight. SC upheld the lower court’s findings. 4. On the issue of the execution of an earlier will, the SC held that the execution of a former will is no proof that she did not execute a later one. She had the perfect right to alter, modify, or revoke any and all of her former wills and to make a new one. - While it is an absolute rule that one who makes a will must sign the same in the presence of the witnesses and the witnesses must sign in the presence of each other and of the testator, yet the actual seeing of the signatures made ins not necessary. - It is sufficient if the signatures are made where it is possible for the necessary parties, if they desire to see, may see the signatures placed upon the will. - A signature containing only the first name is nevertheless a signature and is sufficient to satisfy the requirements of the law. - If the writing of a mark simply upon a will is sufficient indication of the intention of the person to make and execute a will, then certainly the writing of a portion or all of the name should be accepted as a clear indication of an intention to execute the will.

Samson v. Tan - The Testator was suffering from diabetes and had been in a comatose condition for several days prior to his death. He died at about 8:00pm and the will is alleged to have been executed in the noon of the same day. - Oppositor in this case alleges that at the time of the execution of the will, testator is not of sound and disposing mind. Whether or not testator is of unsound mind - SC held that he was not. Although the attending physician testified that he was in a state of coma, he also stated that coma has varying degrees of coma ad in its lighter forms the patient may be aroused and have lucid intervals. - The petitioner presented 5 witnesses who all testified that he was conscious and could her and understand what was said to him and was able to indicate his desires. He could speak distinctly or move his head to answer questions. This was given greater weight by the court as against the two

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SUCCESSION REVIEWER witnesses presented by oppositor, one of which was the oppositor’s mother who was not considered as a disinterested witness. - Mere professional speculation cannot prevail over the positive statements of 5 apparently credible witnesses whose testimony does not seen unreasonable.

Torres v. Lopez - The controversy on this case is centered on the allowance or the disallowance of the will of Tomas Rodriguez. - Vicente Lopez acted as the administrator of the properties of the decedent. A year before Tomas’s death, the latter was also subjected to a guardianship proceeding, where the court found the decedent incapacitated to take care of himself and his property. For this reason, Vicente was named also as the guardian of the deceased. - By virtue of the court’s finding, the decedent was committed in the Philippine General Hospital where he eventually died. - Tomas expressed his desire to make a will during one of the visits of Santiago Lopez and accordingly, they commissioned Atty. Mina to ascertain the wishes of the decedent. - The same will prepared by the attorney was the same document signed by the testator and the other witnesses at the General Hospital on January 3, 1924. - After the decedent died, some of the relatives of Tomas, the Margarita Lopez faction, wanted the will invalidated on the ground that the testator was of unsound mind, and that the latter was induced due to fraud on the execution of the will. - During the trial, the Luz Lopez faction presented doctors whose medical findings reveal that the testator was of sound mind though weak on memory during the execution of the will. The doctors on the Margarita faction however have the opposite conclusion, that in fact the decedent is suffering from senile debility or of mental impairment. Whether or not the will of Tomas Rodriguez should be allowed - YES. The SC held that the will should be allowed. - The allegation of fraud was not proved by the evidence. - As to the soundness of the mind of Tomas, the Court first declared that what is necessary is that the decedent must have a disposing mind. This means that the circumstances of advanced age, health or weak memory alone are not conclusive of the capacity of a person to make a will. - Furthermore, the fact that a person is adjudged by a court to be incapacitated in a guardianship proceeding is not conclusive. Our laws do not have any statute providing for the conclusiveness of the judgments of a court on incapacity of a person. A person placed under guardianship is presumed to be incapable but this presumption is refutable by contrary evidence. - In this case, since there were conflicting testimonies of wellregarded physicians the court decided to base the capacity of Tomas Rodriguez to make a will on the nature of the will itself. - As the will was simple and can be easily understood. - Also, the fact that the testator was able to confer with Atty. Mina and disclose to him his interests, that he generally remembered close relatives and that he was still able to sign the document properly shows that the deceased had testamentary capacity. - Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the property to be disposed of and the persons who would naturally have claims upon the testator,

1ST SEM 2006-2007 and to comprehend the manner in which the instrument will distribute his property.

Sancho v. Abella - Matea Abella, sometime prior to her death, asked her niece to accompany her to a reputable physician for consultation. - During her visit, Matea stayed in one of the convents in San Fernando La Union. - Said physician, Dr. Antonio Querol, diagnosed her to be suffering from dyspepsia and cancer of the stomach. - As such, Matea, immediately asked her attorney to come to the convent so that she may make her will. The will was accordingly drafted and signed by the testator in the presence of the witnesses. - Months after, Matea died. - The opponent claims that Matea did not have capacity to make the will at the time she executed the same as Mate was deaf, has defective eyesight and is suffering from severe impairment of memory. Whether or not Matea had testamentary capacity - The Sc held in the affirmative. - The mental capacity of the testator was established by the fact that she was able to leave home and travel to LA Union to consult with the doctor, that she was able to give her medical history to her physician, that she in fact called an attorney to make her will, and that in fact she brought with her the deeds to her properties. - All these show that Matea was intelligent enough to make the dispositions. - The allegation that Mateo was induced by the fact that she donated one her properties to the bishop of said diocese was not sufficiently proven by the evidence. - Neither senile debility, nor blindness, nor poor memory, is by itself sufficient to incapacitate a person for making his will.

Gonzales v. Caruncong - On November 27, 1948, Manuela Ibarra Vda. de Gonzales (testatrix) died leaving five children namely Alejandro Gonzales, Jr., Manuel Gonzales, Leopoldo Gonzales, Manolito Gonzales de Carungcong, and Juan Gonzales. Her estate is estimated at P150,000. - Thereafter, one of the children of the testatrix, Manuel Gonzales filed in CFI Rizal for the probate of an alleged will by the testatrix executed on November 16, 1942, devising to Manuel Gonzales the greater portion of the estate w/o impairing the legitimes of the other children. - On the other hand, Manolita de Carungcong filed in the same court a petition for the probate of another alleged will executed by the testatrix on May 5, 1945 devising to him the greater portion of the estate. - Alejandro Gonzales, Jr, one of the siblings then sought the disallowance of the wills presented by his two other siblings, assuming that even if they are valid, such were already revoked by the testatrix in an instrument executed by her on November 18, 1948 with the result that the testatrix’s estate should be distributed as if she died intestate. - Thereafter, the CFI of Rizal upheld the probate of the will presented by Manolita Carungcong. And said that the will Manuel Gonzales presented for probate was revoked already by the one Manolita presented and that the instrument presented by Alejandro was executed without the knowledge and testamentary capacity of the testatrix. - Hence this appeal.

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WON, the will presented by Manolita Carungcong was valid despite the fact that it allegedly has no attestation clause - The will is valid. - The appellants contest that the will is not valid because it does not contain any attestation clause; that the concluding paragraph to be the attestation clause, it is not valid because it is the act of the testatrix and not of the witnesses, and because it does not state the number of sheets or pages of the will. - However, in a precedent case, the high court had already sustained an attestation clause made by the testator and forming part of the body of the will. - In that case, it was said that, “The only apparent anomaly we find is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This apparent anomaly however is not in our opinion serious nor substantial as to affect the validity of the will, appearing that right under the signature of the testator, there appear the signatures of the three instrumental witnesses.” - And such is a sufficient compliance with requirements set out by the law. It is significant that the law does not require the attestation to be contained in a single clause. That unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. - Now, with respect to the instrument presented by Alejandro Gonzales, it can be shown that the instrument was prepared when the testatrix lacked the testamentary capacity as this was proved by the attending physician. When the alleged instrument was prepared, the testatrix was already suffering and was in a comatose and unconscious state and could not talk or understand. - An attestation clause made by the testator and signed by the witnesses substantially complies with law. - Statement of sheets of pages in body of will held sufficient when considered in connection with attestation clause. Hernaez v. Hernaez

Subsection 3 – Forms of Wills ART. 804. Every will must be in writing and executed in a language or dialect known to the testator.  Art804 lays down Common Requirements that apply

both to ATTESTED and HOLOGRAPHIC wills.  Art805-808 lays down special requirements for attested

wills. Articles 810-814 lays down special requirements for holographic wills.  TWO COMMON REQUIREMENTS

1. IN WRITING

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Oral wills [the testamentum nuncupativum of the Institutes] are not recognized in the Civil Code. • However, oral wills are allowed under the Code of Muslim Personal Laws or PD1083 in relation to Art102(2). 2. IN A LANGUAGE OR DIALECT KNOWN TO THE TESTATOR

• The provisions of Article 804 are MANDATORY and failure to comply with the two requirements nullifies the will. • Neither the will nor the attestation clause need state compliance with Art804. This can be proved by Extrinsic Evidence. • Presumption of Compliance – it may sometimes be presumed that the testator knew the language in which the will was written. a) Will must be in a language or dialect generally spoken in the place of execution, and b) The testator must be a native or resident of said locality. CASES Suroza v. Honrado - This is a complaint against Judge Honrado for admitting to probate a will which, on its face is void. - Mauro Suroza, a corporal in the US army married Marcelina Salvador. They reared a boy named Agapito Suroza, who considered them as his parents. Mauro died and Marcelina got pension from the Federal gov’t. - Agapito married Nenita and had a child named Lilia. Agapito became a soldier. When he was disabled Nenita became his guardian. - Agapito allegedly had a girlfriend, Arsenia dela Cruz who also tried to become his guardian but was denied by the court. A child, Marilyn Sy was thereafter entrusted to Arsenia by the Spouses Sy. Arsenia delivered the child to Marcelina Salvador, who brought up the child as a supposed daughter of Agapito and her granddaughter, but was never legally adopted by Agapito. - When Marcelina died, her laundrywoman, Marina Peje, filed a petition for probate of Marcelina’s will, which was written in English and thumb marked by Marcelina, naming Marina as the executrix and Marilyn as the sole heir. - The case was assigned to Honrado who appointed Marina as the administrator and allowed her to withdraw sums of money from Marcelina’s saving’s account. Upon motion of Marina, an order was issued to eject the occupants of Marcelina’s house. This order alerted Nenita to the existence of the testamentary proceeding for the settlement of Marcelina’s estate. - Nenita opposed the proceedings but to no avail. Whether disciplinary action should be taken against Honrado - Yes. The testatrix was illiterate. In the opening paragraph of the will, it was stated that English was a language understood and know to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix and translated into Filipino. That could only mean that the will was written in a language not known to the illiterate and, therefore, void because of the mandatory provision of art. 804 of the CC that every will must be executed in a language known to the testator. - Had Honrado been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive. - He should also have noted that the notary was not presented as witness.

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SUCCESSION REVIEWER - A will written in a language that is not known to the testator is void.

Abangan v. Abangan - The CFI admitted to probate Ana Abangan’s will. - The said document, duly probated as Ana Abangan’s will, consists of two sheets, the first of which contains all the disposition of the testatrix, duly signed at the bottom of Martin Montalban (in the name and under the direction of the testatrix) and by 3 witnesses. - The second sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. - Neither of these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by letters. Whether the absence of the signature on the left margin of will invalidate Abangan’s will. - NO. The SC held that in a will consisting of two sheets, the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and 3 witnesses and the second contains only the attestation clause and is signed also at the bottom by the 3 witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be paged. Whether the failure to number by the letters will invalidate the will of Abangan. - NO. In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, the object of the law is to know whether any sheet of the will has been removed. - But, when all the dispositive parts of a will are written on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered, cannot be hidden. Whether the will was written in the dialect that the testatrix knew. - YES. The circumstances appearing in the will itself that the same was executed in Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which the will was written. - The testator’s signature is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator. - In requiring the signature on the margin, the statute took into consideration the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. Mendoza v Pilapil

ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation clause shall state the number of pages used upon which the will is written, and the fact that the testator signed the will an every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. ART. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court.  SPECIAL REQUIREMENTS FOR ATTESTED /

ORDINARY / NOTARIAL WILLS 1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses • Subscribed by the testator – To subscribe denotes writing, more precisely to write under. To Sign means to place a distinguishing mark. • Thus signing has a broader meaning than subscribing. Not every signature is a subscription and not every distinguishing mark is a writing.

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THUMBMARK AS SIGNATURE

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Is the placing of the testator’s thumbprint a signature within the contemplation of the article? YES, on the authority of Payad v. Tolentino and Matias v. Salud, the testator’s thumbprint is always a valid and sufficient signature for the purpose of complying with the requirement of Art805. b) There is no basis for limiting the validity of thumbprints only to cases of illness or infirmity. • A CROSS AS SIGNATURE – a sign of the cross placed by the testator does not comply with the statutory requirement of signature,

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SUCCESSION REVIEWER UNLESS it is the testator’s usual manner of signature or one of his usual styles of signing. • SIGNING BY AN AGENT OF THE TESTATOR –  Two Requisites i. Must sign in the testator’s presence, and ii. By the testator’s express direction  What the agent must write – need not be alleged in the will itself that agent wrote the testator’s name under the latter’s express direction

 The essential thing, for validity, is that the agent write the testator’s name, nothing more. It would be a good thing, but not required, for the agent to indicate the fact of agency or authority. • May the agent be one of the attesting witnesses? a) If there are more than 3 witnesses – YES b) If there are only 3 witnesses – Uncertain.

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SIGNING AT THE END  If the will contains only dispositive provisions, there will be no ambiguity as to where the end of the will is. If however the will contains non-dispositive paragraphs after the testamentary dispositions, one can refer to two kinds of end – 1. Physical End – where the writing stops 2. Logical End – where the last testamentary disposition ends  Signing at either the physical end or logical end is equally permissible. The non-dispositive portions are not essential parts of the will.

 Signing

before the end invalidates not only the dispositions that come after, but the entire will, because then one of the statutory requirements would not have been complied with.

• SIGNING IN THE PRESENCE OF WITNESSES  Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction.

2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another. • Two distinct things are required of the witnesses here – a) Attesting – which is the act of witnessing b) Subscribing – which is the act of signing their names in the proper places of the will • Both must be done. • May the witness, like the testator, affix his thumbmark in lieu of writing his name? Art820 requires a witness to be able to read and write, but this does not answer the query definitively. The point is debatable. • Signing in the presence of the testator and of one another - Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction. 3. Testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses • The last page need not be signed by the testator on the margin because, being the page where the end of the will is, it already contains the testator’s signature. • There is a Mandatory and a Directory part to this requirement – a) MANDATORY – the signing on every page in the witnesses’ presence b) DIRECTORY – place of the signing, the left margin, the signature can be affixed anywhere on the page. • Signing in the presence - Actual seeing is not required, but the ability to see each other [the testator and the witnesses] by merely casting their eyes in the proper direction 4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another.

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Order of Signing – immaterial, provided everything is done in a single transaction. However, if the affixation of the signatures is done in several transactions, then it is required for validity that the TESTATOR affix his signature ahead of the witnesses. 5. All pages numbered correlatively in letters on the upper part of each page. • Mandatory and Directory part a) MANDATORY – pagination by means of a conventional system. The purpose is to prevent insertion or removal of pages b) DIRECTORY – pagination in letters on the upper part of each page. •

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SUCCESSION REVIEWER 6. Attestation clause, stating: a) Number of pages of the will b) Fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses c) The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and of one another. • The attestation clause is the affair of witnesses therefore, it need not be signed by the testator. • The signatures of the witnesses must be at the BOTTOM of the attestation clause. • If the entire document consists only of 2 sheets, the first containing the will and the second the attestation clause, there need not be any marginal signatures at all [Abangan v. Abangan] • The fact that the attestation clause was written on a separate page has been held to be a matter of minor importance and apparently will not affect the validity of the will. 7. Acknowledgement before a notary public. • Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. • All that is required in this article is that the testator and witnesses should avow to the notary the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. [Javellana v. Ledesma] a) Ratio – Certification of acknowledgement need not be signed by notary in the presence of testator and witnesses. b) Art806 does not require that testator and witnesses must acknowledge on the same day that it was executed. c) Logical Inference – neither does the article require that testator and witnesses must acknowledge in one another’s presence. If acknowledgement is done by testator and witness separately, all of them must retain their respective capacities until the last one has acknowledged. • Notary cannot be counted as one of the attesting witnesses. • Affixing of documentary stamp is not required for validity.  Some Discrepancies

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Par1 Art805 – No statement that the testator must sign in the presence of the witnesses

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Par2 Art805 – No statement that the testator and the witnesses must sign every page in one another’s presence. • But these two things are required to be stated in the attestation clause. Conclusion is that they should be complied with as requirements.

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Attestation clause is not required to state that the agent signed in the testator’s presence - a circumstance mandated by the 1st and 2nd paragraphs of the article.

 Indication of Date – there is no requirement that an

attested will should be dated, unlike a holographic will. CASE Payad v. Tolentino - The lower court denied probate on the will of deceased Tolentino on the ground that the attestation clause was not in conformity with the requirements of law in that it is not stated therein that the testatrix caused Atty. Almario to write her name at her express direction. - Whether or not the will should be denied probate. - SC held that it should not be denied because: 1. The deceased placed her thumb mark on each and every page of the will and the attorney merely wrote her name to indicate the place where she placed her thumb mark. Thus, the attorney did not really sign for her. 2. It was not necessary that the attestation clause should state that the testatrix requested Atty. Alamario to sign her name since she signed it in accordance with law. A statute requiring a will to be signed is satisfied if the signature is made by the testator’s mark.

Matias v. Salud - The CFI denied probate of the will of Gabina Raquel.

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It must be noted that Gabina Raquel was suffering from herpes zoster that afflicted the right arm and shoulder of the testatrix, which made writing difficult and a painful act. Thus, upon the insistence of the attorney, Gabina attempted to sign, but since it was so painful she just managed to thumbmarked the foot of the document and the left margin at each page. The parties opposing the probate of the will contended that the will was void due to the irregularities in the execution thereof. One of the points raised by the oppositors was that the finger mark can not be regarded as the decedent’s valid signature as it does not show distinct identifying ridgelines. And since the finger mark was an invalid signature, there must appear in the attestation clause that another person wrote the testator’s name at his request.

Whether or not the will was valid - The SC held that the will was valid. - As to the clarity of the ridge impressions, it is so dependent on aleatory requirements as to require dexterity that can be

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SUCCESSION REVIEWER expected of very few persons; testators should not be required to possess the skill of trained officers. - And as to the validity of the thumbprints as signature, the SC held that it has been held in a long line of cases that a thumbprint is always a valid and sufficient signature for the purpose of complying with the requirement of the article. - Furthermore, the validity of thumbprints should not be limited in cases of illness or infirmity. - A thumbprint is considered as a valid and sufficient signature in complying with the requirements of the article.

Garcia v. Lacuesta - This case purports to the validity of the will executed by Antero Mercado. - The will is said to be irregularly execute as the attestation clause did not mention that it was Atty. Javier who signed for the decedent under the latter’s express direction. - The other party however argued that such fact need not be mentioned because although Atty. Javier wrote the name of Mercado, Mercado nevertheless put a cross and that such cross amounts to a signature by the decedent himself. Whether or not the will was valid - The SC held that it was not. - Although there have been cases considering marks, such as a cross, as sufficient signature, there is nothing in the records that shows that Mercado usually uses a cross as his signature. - As such, the will was disallowed. - Marks, such as a cross, can only be considered as a signature if there is showing that the decedent was accustomed to using such mark as signature.

Barut v. Cabacungan - Barut applied for the probate of the last will and testament of Maria Salomon. - In the will, Salomon revoked all former wills she made. She also stated that being unable to read and write, she instructed Concepcion and Inoselda to read the will to her. She also instructed Agayan to sign her (Salomon) name to it as testator. - The probate court found that the will was not entitled to probate because the signed name of the testatrix on her behalf looked more like the handwriting of one of the other witnesses that that of the person whose handwriting it was alleged to be. WON the will was valid. Specifically, is the signature of the person instructed by the testator to sign the will valid. - YES. With respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his name or not. - The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the

1ST SEM 2006-2007 presence of 3 other witnesses and that they attested and subscribed it in her presence and in the presence of one another. That is all the statute requires. - The cases relied upon by the oppositors are not in point. In those cases, the reason for the invalidation of the wills concerned was that the persons instructed to sign for the testator signed their own names instead of the names of the testators in each case. - The will must be in writing and signed by the testator, or the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by 3 or more credible witnesses in the presence of the testator and of each other. - The fact that the testator signed the will or that he caused it to be signed by another person at his express direction and that the same was signed by the witnesses must be included in the attestation.

Nera v. Rimando - Only questioned raised by the evidence in this case as to the due execution of the instrument propounded as a will is whether the one of the subscribing witnesses was present in the small room where the will was executed at the time when the testator and the other subscribing witnesses attached their signatures. WON, the will was validly witnessed by one of the subscribing witnesses to make the will valid. - Yes. The subscribing witness validly witnessed the signing. - Majority of the members of the court is of the opinion that the subscribing witness was indeed in the small room to be able to observe the signing of the will be the testator and other subscribing witnesses. - The trial court decided when it said that the fact that one of the alleged witnesses signed the instrument in the outer room when the others were inside would not be sufficient in itself to invalidate the execution of the will. - But this Court is of the opinion that had this subscribing witness been proven to have been in the outer room, it would have been invalid as a will. - But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature must be such that they may see each other sign if they choose to do so. - It is enough that when the witness, if he chose to look at the actual signing he could have done so by just merely casting his eyes in the proper direction, such would be considered already as a proper witnessing of the said execution of the will. - However, to extend to extend this doctrine further would open the door to the possibility of all manner of fraud, substitution and the like and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will. - Hence the will is to be admitted to probate. - Actual seeing is not required, but the ability to see each other, i.e. the testator and the witnesses, “by merely casting eyes in the proper direction.”

Icasiano v. Icasiano - Josefa Villacorte died in Manila on September 12, 1958; on June 2, 1956, Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano

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SUCCESSION REVIEWER before three instrumental witnesses, namely; attorneys Justo P. Torres, Jr. and Jose V. Natividad, and Dr. Vinicio B. Diy. - The records show that the original of the will, consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition is signed by the testatrix and her three attesting witnesses in each and every page. - Witness Natividad, who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence. Whether or not the will is void (since one of the pages in the original copy was not signed by one of the witnesses) - NO. The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. - Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. - The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, witnesses may sabotage the will by muddling or bungling it or the attestation clause". - That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time. - The law should not be so strictly and literally interpreted where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained. Notes on Icasiano – Icasiano holding cannot, and should not, be taken as a departure from the rule that the will should be signed by the witnesses on every page. The carbon duplicate, it will be noted, was regular in all respects. A cavalier disregard of the formal requirements of wills, in reliance on Icasiano, is not recommended.

Cagro v. Cagro - The probate of the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, is being opposed on the ground that the will is fatally defective, because its attestation clause is not signed by the attesting witnesses. - There is no question that the signature of the 3 witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left hand margin. Whether the will is fatally defective. - Yes. The attestation clause is a “memorandum of the facts attending the execution of the will” required by law to be

made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. - DISSENT by Bautista: The liberal trend of the NCC in the interpretation of wills should not be overlooked. In case of doubt, the interpretation that would have the effect of preventing intestacy prevails. - Cruz Dissent by Tuason: The law on wills does not provide that the attesting witness should sign the clause at the bottom. In the absence of the such provision, there is no reason why signatures on the margin are not good. - An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation.

Cruz v. Villasor - This is a petition for review on certiorari on the judgment of the CFI allowing the probate of the will of the late Valente Cruz. - The surviving spouse of Valente opposed the allowance of the will alleging that the will was executed through fraud, deceit, misrepresentation and undue influence; that the said instrument was executed without the testator having been fully informed of the contents thereof, particularly as to what properties he was disposing; and that the supposed will was not executed in accordance with law. - It appears that of the 3 instrumental witnesses, one of them, is at the same time the Notary Public before whom the will was supposed to have been acknowledged. Whether the supposed last will and testament of Valente Cruz was executed in accordance with law, particularly Articles 805 and 806 of the NCC, the first requiring at least 3 credible witnesses to attest and subscribe to the will, and the second requiring the testator and the witnesses to acknowledge the will before a notary public. - NO. The notary public before whom the will was acknowledge cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. - If the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in from of himself. This cannot be done because he cannot split his personality into two so that one will appear before the other to acknowledge his participation in the making of the will. - To allow the notary public to act as third witness, or one of the attesting and acknowledging witnesses, would have the effect of having only two attesting witnesses to the will which would be in contravention of the provisions of Article 805 requiring at least 3 credible witnesses to act as such and of Article 806 which requires that the testator and the required number of witnesses must appear before the notary public to acknowledge the will. - The SC declared the last will of Valente invalid. - The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will.

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To acknowledge before means to avow; to own as genuine, to assent, to admit, and before means in front or preceding in space or ahead of.

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SUCCESSION REVIEWER - The function of a notary public is, among others, to guard against any illegal or immoral arrangements. This function would be defeated if the notary public were one of the attesting witnesses.

Taboada v. Rosal - Written in Cebuano-Visayan dialect, the will consists of 2 pages. The first page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the 3 witnesses. The second page which contains the attestation clause and the acknowledgement is signed at the end of the attestation clause by the 3 witnesses and at the left hand margin by the testatrix. - The lower court denied probate of deceased Perez. Whether or not the law requires that the testatrix and 3 witnesses sign at the end of the will and in the presence of the testatrix and of one another. - SC held that the will should be admitted because:

subscribing witnesses, and again, by the notary public before whom the will is acknowledged.  Special Requirements for Handicapped Testators

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For Deaf / Deaf-Mute testator 1. Able to Read – must read the will personally 2. Unable to Read – must designate two persons to read the will and communicate to him, in some practicable manner its contents. • Does this mean the 2 persons must perform each task in turn?

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For Blind Testator – to be read to him twice, once by one of the subscribing witnesses, and another time by the notary.

 Art808 is MANDATORY

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The signatures of the witnesses in the left hand margin of the 1st page attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the attestation clause. 2. Unsubstantial departure from the usual forms should be ignored esp. where the authenticity of the will is not assailed. 3. The objects of the attestation and subscription were fully met when the witnesses signed at the sole page where the testamentary - Dispositions were contained, esp. so when the will was properly identified by the subscribing witness to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order. - SC held that this would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only 2 pages duly signed by the testatrix and her witnesses. - The acknowledgement itself in the second page states that “This Last Will and Testament consists of two pages including this page.” Whether or not it should be invalidated due to the attestation clause’s failure to state the number of pages used in writing the will. - Attestation consists in witnessing the testator’s execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. - Subscription is the signing of the witnesses’ names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator.

ART. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. ART. 808. If the testator is blind, the will shall be read to him twice; once by one of the

If art808 is mandatory, by analogy Art807 is also mandatory. Failure to comply with either would result in nullity and denial of probate.

 The

requirement has been liberally applied, SC declaring substantial compliance to be sufficient.  Applies not only to blind testators but also to those who, for one reason or another, are incapable of reading their wills.  Substantially complied with when documents were read aloud to the testator with each of the 3 instrumental witnesses and the notary following the reading with their respective copies.

 Burden of proof is upon the proponent of the will that

the special requirement of the article was complied with. At the same time, there is no requirement that compliance with the requirement be stated either in the will or the attestation clause. CASE Garcia v. Vasquez - This case pertains to the will of the late Gliceria Avelino del Rosario. - Upon the decedent’s death, her niece Consuelo Precilla, filed a petition for the probate of the decedent’s holographic will and for the latter’s appointment as the special administratrix of the decedent’s estate. - Witnesses presented by the proponents of the will testified that the decedent was of sound mind when she executed the will, and that the decedent first read the will silently before she signed it. - Oppositors of the will however contended that it was physically impossible for the decedent to have read the will as she had a severely impaired eyesight as testified by Dr. Jesus Tamesis. - The physician found out on March 1960 that the decedent had a cataract on the left eye and her right eye also had difficulty seeing printed pages. - The physician further testified that despite the operation and removal of the cataract and the decedent’s being fitted with aphakic lens, the latter’s vision remained capable of viewing

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SUCCESSION REVIEWER only distant objects and is not capable of reading printed articles. Whether or not the decedent is considered “blind” pursuant to the provisions of Art 808 - Yes. The SC held that for all intents and purposes of the rules on probate, the decedent is like a blind testator, and the due execution of her will would have required faithful observance of the provisions of Art 808 of the CC. - Also, The SC found it worthy to mention the fact that that the will was executed without any regard for the defective vision of the decedent. The testament was cramped in a single page and was abundant with typographical errors. This only strengthens the proposition that the decedent could not have read or understood the alleged testament. Whether or not the will was duly executed - No. Considering that the testator is within the term “blind” as contemplated under Art 808, the due execution of the decedent’s will would have required the reading of the will twice (once by one of the witnesses, and once by the notary). - However, no such reading was proved or shown in this case. Thus, the will should be declared invalid. - The rationale behind the reading of the will to the blind testator is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. - A person who is not blind but is similarly incapacitated to read the will is within the ambit of Art 808.

Alvarado v. Gaviola, Jr. - On 5 November 1977, 79-year old Brigido Alvarado executed a notarial will entitled “Huling Habilin” wherein he disinherited an illegitimate son, petitioner Cesar Alvarado, and expressly revoked a previously executed holographic will at the time awaiting probate before the RTC of Laguna. - According to Bayani Ma. Rino, private respondent, he was present when the said notarial will was executed, together with three instrumental witnesses and the notary public, where the testator did not read the will himself, suffering as he did from glaucoma. - Rino, a lawyer, drafted the eight-page document and read the same aloud before the testator, the three instrumental witnesses and the notary public, the latter four following the reading with their own respective copies previously furnished them. - Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado” was executed changing some dispositions in the notarial will to generate cash for the testator’s eye operation. - Said codicil was likewise not read by Brigido Alvarado and was read in the same manner as with the previously executed will. - When the notarial will was submitted to the court for probate, Cesar Alvarado filed his opposition as he said that the will was not executed and attested as required by law; that the testator was insane or mentally incapacitated due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was procured by undue pressure and influence on the part of the beneficiary; and that the signature of the testator was procured by fraud or trick.

Whether or not notarial will of Brigido Alvarado should be admitted to probate despite allegations of defects in the execution and attestation thereof as testator was allegedly blind at the time of execution and the double-reading requirement under Art. 808 of the NCC was not complied with. - YES. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator’s will. - Cesar Alvardo was correct in asserting that his father was not totally blind (of counting fingers at 3 feet) when the will and codicil were executed, but he can be so considered for purposes of Art. 808. - That Art. 808 was not followed strictly is beyond cavil.

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However, in the case at bar, there was substantial compliance where the purpose of the law has been satisfied: that of making the provisions known to the testator who is blind or incapable of reading the will himself (as when he is illiterate) and enabling him to object if they do not accord with his wishes. Rino read the testator’s will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgment take place. There is no evidence that the contents of the will and the codicil were not sufficiently made known and communicated to the testator. With four persons, mostly known to the testator, following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him were the terms actually appearing on the typewritten documents. Art. 808 of the New Civil Code provides: “If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.” The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will to himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. Although there should be strict compliance with the substantial requirements of law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator’s will. See Abangan v. Abangan.

ART. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and

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SUCCESSION REVIEWER attested in substantial compliance with all the requirements of Article 805. 

According to JBL Reyes, “Liberalization Running Riot,” instead a possible rewording would be – In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if such defects and imperfections can be supplied by an examination of the will itself and it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805.

 Examples

1. A failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination. 2. Failure by the attestation clause to state that the witnesses signed in one another’s presence should be considered a FATAL FLAW since the attestation clause is the only textual guarantee of compliance.  The rule is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed.  However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself. CASES Caneda v. CA - On December 5, 1978, Mateo Caballero, a widower without any children and already in the twilight years of his life, executed a last will and testament at his residence before 3 witnesses. - He was assisted by his lawyer, Atty. Emilio Lumontad. - In the will, it was declared that the testator was leaving by way of legacies and devises his real and personal properties to several people all of whom do not appear to be related to the testator. - 4 months later, Mateo Caballero himself filed a case seeking the probate of his last will and testament, but numerous postponements pushed back the initial hearing of the probate court regarding the will. - On May 29, 1980, the testator passed away before his petition could finally be heard by the probate court. - Thereafter one of the legatees, Benoni Cabrera, sought his appointment as special administrator of the testator’s estate. - Thereafter, the petitioners, claiming to be nephews and nieces of the testator, instituted a second petition for intestate proceedings. They also opposed the probate of the testator’s will and the appointment of a special administrator for his estate. - Benoni Cabrera died and was replaced by William Cabrera as special administrator and gave an order that the testate

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proceedings for the probate of the will had to be heard and resolved first. In the course of the proceedings, petitioners opposed to the allowance of the testator’s will on the ground that on the alleged date of its execution, the testator was already in poor state of health such that he could not have possibly executed the same. Also the genuineness of the signature of the testator is in doubt. On the other hand, one of the attesting witnesses and the notary public testified that the testator executed the will in question in their presence while he was of sound and disposing mind and that the testator was in good health and was not unduly influenced in any way in the execution of his will. Probate court then rendered a decision declaring the will in question as the last will and testament of the late Mateo Caballero. CA affirmed the probate court’s decision stating that it substantially complies with Article 805. Hence this appeal.

WON, the attestation clause in the will of the testator is fatally defective or can be cured under the art. 809. - No. It does not comply with the provisions of the law. - Ordinary or attested wills are governed by Arts. 804 to 809. The will must be acknowledged before a notary public by the testator and the attesting witnesses. The attestation clause need not be written in a language known to the testator or even to the attesting witnesses. - It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. - The attestation clause, therefore, provides strong legal guaranties for the due execution of a will and to insure the authenticity thereof. - It is contended by petitioners that the attestation clause in the will failed to specifically state the fact that the attesting witnesses witnessed the testator sign the will and all its pages in their presence and that they, the witnesses, likewise signed the will and every page thereof in the presence of the testator and of each other. And the Court agrees. - The attestation clause does not expressly state therein the circumstance that said witnesses subscribed their respective signatures to the will in the presence of the testator and of each other. - The phrase, “and he has signed the same and every page thereof, on the space provided for his signature and on the left hand margin,” obviously refers to the testator and not the instrumental witnesses as it is immediately preceded by the words” as his last will and testament.” - Clearly lacking is the statement that the witnesses signed the will and every page thereof in the presence of the testator and of one another. That the absence of the statement required by law is a fatal defect or imperfection which must necessarily result in the disallowance of the will that is here sought to be probated. - Also, Art. 809 does not apply to the present case because the attestation clause totally omits the fact that the attesting witnesses signed each and every page of the will in the presence of the testator and of each other. The defect in this case is not only with respect to the form or the language of the attestation clause. The defects must be remedied by intrinsic evidence supplied by the will itself which is clearly lacking in this case.

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SUCCESSION REVIEWER - Therefore, the probate of the will is set aside and the case for the intestate proceedings shall be revived. - Article 809 cannot be used to cure the defects of the will when it does not pertain to the form or language of the will. This is because there is not substantial compliance with Article 805.

- Pilar Achacoso filed an alternative petition for the probate of a pervious will praying that if the will submitted by the widow be rejected, the other will be admitted in lieu thereof.

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The previous will names Pilar Achacoso as one of the heirs, a statement absent in the 2nd will.

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Pilar opposes the probate of the 2nd for lack of attestation clause, or if there be one that it is not signed by the instrumental witnesses, a defect which invalidates the will.

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The will winds up with the ff. clause: In witness whereof, I sign this testament or last will….in the presence of the 3 witnesses…

Cases for Arts. 807-809 Gil v. Murciano - The CFI of Manila admitted to probate the alleged will and testament of the deceased Carlos Gil. The oppositor Pilar Gil Vda. de Murciano appealed to the SC, arguing that the will was void since the attestation clause thereof does not state that the alleged testator signed the will. It declares only that it was signed by the witnesses. Whether or no the will is valid. - NO. This is a fatal defect, for the precise purpose of the attestation clause is to certify that the testator signed the will, this being the most essential element of the clause. - Without it there is no attestation at all. It is said that the court may correct a mere clerical error. - This is too much of a clerical error for it affects the very essence of the clause. Alleged errors may be overlooked or corrected only in matters of form which do not affect the substance of the statement. - Correction may not be cured by inference considering the clear, unequivocal, language of the statute as to how the attestation clause should be made. It is to be supposed that the drafter of the alleged will read the clear words of the statute when he prepared it. For the court to supply alleged deficiencies would be against the evident policy of the law. - In adopting liberal construction of a will, evidence aluinde is not allowed to fill the void or supply missing details. What is permitted is a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of the law. - The right to make a testamentary disposition of one's property is purely of statutory creation, and is available only upon a compliance with the requirements of the statute. The formalities which the Legislature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded. - The mode so prescribed is the measure for the exercise of the right, and the heir can be deprived of his inheritance only by a compliance with this mode. - For the purpose of determining whether a will has been properly executed, the intention of the testator in executing it is entitled to no consideration. - For that purpose only the intention of the Legislature, as expressed in the language of the statute, can be considered by the court, and whether the will as presented, shows a compliance with the statute.

Cuevas v. Achacoso - Valentina Cuevas, filed a petition for the probate of the will of Jose Venzon, her husband.

Whether the attestation clause is valid. - Yes. The only anomaly is that it appears to be an attestation made by the testator himself more than by the instrumental witnesses. This, however, is not serious or substantial as to affect the validity of the will, it appearing that right under the signature of the testator, there appear the signatures of the 3 instrumental witnesses. - Instrumental witness is one who takes part in the execution of an instrument or writing, he does not merely attest to the signature of the testator but also to the proper execution of the will. The fact that the 3 witnesses have signed the will immediately under the signature of the testator, show that they have in fact attested not only the genuineness of his signature but also to the due execution of the will as embodied in the attestation clause. - The object of the solemnities surrounding the execution of the wills is to close the door against bad faith and fraud, to avoid substitution of the wills and testament and to guarantee their truth and authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But on the other hand also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator’s will must be disregarded.

Abada v. Abaja - Spouses Abada and Toray died without legitimate children. - Alipio Abaja filed with the CFI a petition for the probate of the will of Abada. Abada allegedly names his testamentary heirs his natural children: Eulogio and Rosario. Alipio is the son of Eulogio. - Caponong opposed the petition on the ground that Abada left no will when he died. - Caponong alleged that the will should be disallowed on the following reasons: (1) it was not executed and attested as required by law; (2) it was not intended as the last will of the testator; and (3) it was procured by undue and improper pressure and influence on the part of the beneficiaries. - Later, Caponong-Noble was named as Special Administratix of the estate of Abada and Toray. Caponong-Noble moved for the dismissal of the petition for probate of the will of Abada but such motion was denied. - When the case was submitted for decision, a Resolution was rendered where it was held that there was a substantial compliance with the formalities of the will. In the said Resolution, the trial court only determined whether the will of Abada has an attestation clause as required by law. - Upon appeal, the CA affirmed the trial court’s Resolution. Hence, this appeal.

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SUCCESSION REVIEWER

Whether the CA erred in sustaining the trial court in admitting to probate the will of Abada. - NO. The SC affirmed the decision of the Court of Appeals. What laws apply to the probate of the last will of Abada? - Abada executed his will on June 1932. The laws in force at that time are the Old Civil Code and the Code of Civil Procedure. Whether the will of Abada requires acknowledgement before a notary public.

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NO. What Caponong-Noble cited was Arts. 804 & 806 of the NCC. In this case, the Code of Civil Procedure applies where the intervention of a notary is not necessary in the execution of any will. Thus, Abada’s will does not require acknowledgment before a notary public.

Whether the will must expressly state that it is written in a language or dialect known to the testator.

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NO. There is no statutory requirement to state in the will itself that the testator knew the language or dialect used in the will. This is a matter that a party may establish by proof aliunde. In this case, Alipio’s testimony sufficiently proves that Abada speaks the Spanish Language.

Whether the will has an attestation clause. - YES. Whether the attestation clause states the number of pages on which the will was written. - YES. It showed that the pages are numbered correlatively with the phrase containing “UNO y DOS” meaning “ONE” and “TWO”. Whether the attestation clause states that the testator signed the will in its every page in the presence of 3 witnesses. - The English translation of the attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses. - However, the SC held that Caponong-Noble was correct is saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agreed with the CA in the application of the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will shows that 3 witnesses signed it. Whether the attestation clause states that the witnesses witnessed and signed the will and all its pages in the presence of the testator and each other. - YES. The last part of the attestation clause shows that the attesting witnesses witnessed the signing of the will of the testator, and that each signed the will in the presence of one another and of the testator.

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The question on the number of witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde. - Precision of language in drafting an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the state be made. It is sufficient if from the language employed it can reasonable deduced that the attestation clause fulfills what the law expects of it.

ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself, It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.  Simplicity

of the holographic will is its obvious advantage, along with other benefits such as 1. Secrecy 2. Inexpensiveness 3. Brevity

 But that very simplicity brings about disadvantages –

1. Danger of forgery 2. Greater difficulty of determining testamentary capacity 3. Increased risk of duress  REQUIREMENTS OF A HOLOGRAPHIC WILL

1. COMPLETELY HANDWRITTEN BY THE TESTATOR • If testator executes only part of the will in his handwriting and other parts are not so written, the ENTIRE will is void because the article would be violated. 2. DATED BY HIM • Date – Specification or mention, in a written instrument, of the time [day, month and year] it was made [executed]. – Black’s Law Dictionary • As a general rule, the date in a holographic will should include the day, month, and year of its execution. However, when there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date FEB./61 is a valid compliance, probate of the holographic will should be allowed under the principle of substantial compliance. • A complete date is required to provide against such contingencies as – a) Two competing wills executed on the same day, or b) Of a testator becoming insane in the day on which a will was executed. • The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. 3. SIGNED BY TESTATOR • Must signature be at the will’s end [at least the logical end]? YES, article 812 seems to imply this.

•

May the testator sign by means of a thumbprint? NO, article says will must be

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SUCCESSION REVIEWER “entirely handwritten, dated and signed by the hand of the testator himself.” CASES Roxas v. De Jesus - After the death of the de Jesus spouses, Simeon Roxas (brother of the deceased Bibliana Roxas de Jesus) filed a special proceeding to settle the intestate estate of the de Jesus spouses. - Later, Simeon delivered to the court a document purporting to be the holographic will of Bibliana. He stated that after being appointed as administrator, he found a notebook of Bibliana which contained the letter-will addressed to her children written and signed by Bibliana. - The will was dated “FEB./61” and this was confirmed by the testimonies of Simeon as and the 2 children of Bibliana. - Henson, another compulsory heir, opposed the probate of the holographic will contending that it was not dated as required by Art. 810. - She contends that the law requires that the will should contain the day, month, and year of its execution and this should be complied with. WON the holographic will dated as “FEB./61” was properly dated. - YES. If the testator attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. - SC found no evidence of bad faith and fraud in the execution of the will, nor was there substitution of wills. Neither is there any question as to the genuineness and due execution of the will. - The objection put forth by Henson is too technical to be entertained. - GR: The date in a holographic will should include the day, month and year of execution.

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E: In the absence of appearance of fraud, bad faith, undue influence, and pressure and the authenticity of the will is established, and the only issue is the validity of the date “FEB.61” appearing on the will, the probate should be allowed under the principle of substantial compliance.

Labrador v. CA - Melecio died leaving behind a parcel of land to his heirs. However, during probate proceedings, Jesus and Gaudencio filed an opposition on the ground that the will has been extinguished by implication of law alleging that before Melecio’s death, the land was sold to them evidenced by TCT No. 21178. Jesus eventually sold it to Navat. - Trial court admitted the will to probate and declared the TCT null and void. However, the CA on appeal denied probate on the ground that it was undated. Whether or not the alleged holographic will is dated, as provided for in Article 810 of the Civil Code - SC held that it is dated because: - The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator.

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The intention to show March 17 1968 as the date of the execution is plain from the tenor of the succeeding words of the paragraph. It states that “this being in the month of March 17th day, in the year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who made this writing is no other than Melecio Labrador, their father.” - This clearly shows that this is a unilateral act of Melecio who plainly knew that he was executing a will. - Article 810 of the Civil Code

ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to,  Article applies only to POST MORTEM probates, it

does not apply to Ante Mortem probates since in such cases the testator himself files the petition and will identify the document itself.  The three witness provision in case of contested

holographic wills is DIRECTORY, not mandatory.  Testamentary wills – mandatory  Holographic wills – directory  Witnesses must:

1. Know the handwriting and signature of the testator 2. Truthfully declare that handwriting and signature is that of the testator  In the probate of a holographic will, the document itself

must be produced. Therefore, a holographic will cannot be probated.  The execution and contents of a lost or destroyed

holographic will MAY NOT BE PROVED by the bare testimony of witnesses who have seen and/or read such will. However, attested wills MAY BE PROVED by testimonial evidence.  Why the difference in rules?  Because of the nature of the wills. In holographic wills, the only guarantee of authenticity is the handwriting itself. In attested wills, the testimony of subscribing or instrumental witnesses and of the notary guarantees authenticity of the will.  Loss of the holographic will entails loss of the only medium of proof while loss of the ordinary will leaves the subscribing witnesses available to authenticate.

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SUCCESSION REVIEWER  

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In the case of ordinary wills, it would be more difficult to convince 3 witnesses plus the notary to deliberately lie. Considering the holographic will may consist of 2-3 pages and only one of them need be signed, the substitution of the unsigned pages may go undetected. In the case of a lost ordinary will, the 3 subscribing witnesses would be testifying as to a FACT which they saw, namely the act of the testator of subscribing the will. Whereas in the case of a lost holographic will, the witnesses would testify as to their OPINION of the handwriting which they allegedly saw, an opinion which cannot be tested in court nor directly contradicted by the oppositors because the handwriting itself is not at hand.

 EXCEPTION – may be proved by a photographic or

photostatic copy, even a mimeographed or carbon copy, or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court.

- Art 811 requiring three witnesses in the probate of a contested holographic will is merely directive and not mandatory.

Codoy v. Calugay - On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed a petition for probate of the said will. - They attested to the genuineness and due execution of the will on 30 August 1978. - Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the will was a forgery and that the same is even illegible. - They raised doubts as regards the repeated appearing on the will after every disposition, calling the same out of the ordinary. - If the will was in the handwriting of the deceased, it was improperly procured. - Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.

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CASES Azaola v. Singson - The subject of this case is the holographic will of Fotunata Yance. - Francisco Azaola submitted the said holographic will whereby Maria Azaola was made the sole heir of the deceased. - The probate of the will is contested on the ground that the will was executed under undue influence, that the document was not intended to be the will of the deceased and that the proponent of the will failed to present at least three witnesses who could declare the will and the signature therein to be in the writing of the testatrix. - In this case, the proponent of the will only presented one witness to prove that the body of and signature in the will was that of the testator Whether or not the three-witness rule is mandatory and applicable in this case - The SC held that the petitioner is not bound to produce more than one witness as the authenticity of the will is not in question. - Granting also that the genuineness of the will is contested, the provision of Art 811 should not be interpreted to require the compulsory presentation of the three witnesses.

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First, it should be noted that in holographic wills, no witness is required in the execution thereof, thus the existence of the witnesses possessing the requisite qualifications is a matter beyond the control of the proponent.

Second, the law itself contemplates a situation where no competent witness can be produced thus allowing the court to resort to expert evidence to supply the deficiency. - To clarify further, the option to require expert evidence depends on the discretion of the court. If the court is convinced by the testimony of the witnesses, it may no longer ask for expert evidence. However, if there is no competent witness or if those produced were not convincing, the court may accordingly call for expert evidence. - Thus, the case is remanded to allow the parties to adduce additional evidence including expert testimony.

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The first witness was the clerk of court of the probate court who produced and identified the records of the case bearing the signature of the deceased. The second witness was election registrar who was made to produce and identify the voter’s affidavit, but failed to as the same was already destroyed and no longer available.

The third, the deceased’s niece, claimed that she had acquired familiarity with the deceased’s signature and handwriting as she used to accompany her in collecting rentals from her various tenants of commercial buildings and the deceased always issued receipts. - The niece also testified that the deceased left a holographic will entirely written, dated and signed by said deceased.

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The fourth witness was a former lawyer for the deceased in the intestate proceedings of her late husband, who said that the signature on the will was similar to that of the deceased but that he can not be sure. The fifth was an employee of the DENR who testified that she was familiar with the signature of the deceased which appeared in the latter’s application for pasture permit.

The fifth, respondent Evangeline Calugay, claimed that she had lived with the deceased since birth where she had become familiar with her signature and that the one appearing on the will was genuine. - Codoy and Ramonal’s demurrer to evidence was granted by the lower court. It was reversed on appeal with the Court of Appeals which granted the probate. Whether or not Article 811 of the Civil Code, providing that at least three witnesses explicitly declare the signature in a contested will as the genuine signature of the testator, is mandatory or directory. - YES. The word “shall” connotes a mandatory order, an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word “shall”, when used in a statute, is mandatory. - In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.

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SUCCESSION REVIEWER - The paramount consideration in the present petition is to determine the true intent of the deceased. Whether or not the witnesses sufficiently establish the authenticity and due execution of the deceased’s holographic will. - NO. We cannot be certain that the holographic will was in the handwriting of the deceased. - The clerk of court was not presented to declare explicitly that the signature appearing in the holographic will was that of the deceased. - The election registrar was not able to produce the voter’s affidavit for verification as it was no longer available. - The deceased’s niece saw pre-prepared receipts and letters of the deceased and did not declare that she saw the deceased sign a document or write a note. - The will was not found in the personal belongings of the deceased but was in the possession of the said niece, who kept the fact about the will from the children of the deceased, putting in issue her motive. - Evangeline Calugay never declared that she saw the decreased write a note or sign a document. - The former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. - (As it appears in the foregoing, the three-witness requirement was not complied with.) - A visual examination of the holographic will convinces that the strokes are different when compared with other documents written by the testator.

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The records are remanded to allow the oppositors to adduce evidence in support of their opposition. - The object of solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise the right to make a will. - However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, the law requires three witnesses to declare that the will was in the handwriting of the deceased.

- In opposition to said proceedings, the surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. - After hearing the parties, the court refused to probate the alleged will. The will itself was not presented. - Sometime in 1950, Felicidad Esguerra mentioned to her first cousin Vicente Esguerra her desire to make a will. However, she wanted it to be a secret because she said that it would be useless if her husband discovered or knew about it. - So Vicente consulted with the nephew of Felicidad and found out that it could be done provided that the document was entirely in her handwriting, signed and dated by her. - As a result of this, Felicidad proceeded with the making of her will. Though it was a secret, she would show people who would visit her will. - After evaluating the pieces of evidence presented before the court, the trial judge had to accept the oppositor’s evidence that Felicidad did not and could not have executed such holographic will. - Hence this appeal. WON, a lost holographic will can be admitted to probate.

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Article 811, paragraph 1. provides: “In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.” - The word “shall” connotes a mandatory order, an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word “shall”, when used in a statute, is mandatory.

Gan v. Yap - On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the UST hospital leaving properties in Bulacan and in Manila. - On March 17, 1952, Fausto E. Gan initiated these proceedings in CFI Manila for probate the holographic will executed allegedly by the deceased.

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No. Articles 810-814 govern holographic wills. It is stated that, “A person may execute a holographic will which must be entirely written, dated and signed by the hand of the testator himself. It is subject to no other form and may be made in our out of the Philippines, and need not be witnessed.” Unlike ordinary wills, holographic wills need not observe the rules laid down in Art. 805 for its compliance with the law. As long as it is written entirely, dated and signed by the testator himself, then it will be sufficient proof that it has been executed in accordance with law. However, witnesses may be brought in so as to verify that the will and the signature are in the handwriting of the testator. The witnesses so presented do not need to have seen the execution of the holographic will. In the case hand however, the will holographic will was not presented to the court. Obviously, when the will itself is not submitted, these means of opposition and, of assessing the evidence are not available. And then the only guaranty of authenticity – the testator’s handwriting – has disappeared. It is therefore to be concluded that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/ or read such will. This is because the only guaranty of the authenticity is the handwriting itself. The loss of the holographic will entails the loss of the only medium of proof. That even if oral testimony were admissible to establish and probate a lost holographic will, the evidence submitted by the petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that clear and distinct proof required by Rule 77. Rejection of the alleged will must be sustained The execution and the contents of a lost or destroyed holographic will may not be proved by bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity.

Rodelas v. Aranza - The probate court ordered the dismissal of Rodelas’ petition for the allowance of the holographic will of deceased

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SUCCESSION REVIEWER Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which was presented for probate, cannot stand in lieu of the lost original, for the law regards the document itself as the material proof of the authenticity of the said will. Whether a holographic will which was lost or can not be found can be proved by means of a photostatic copy - Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the court after its due execution has been proved. - The probate may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. - However, if the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. - But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court, may be allowed.

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If the holographic will has been lost or destroyed and no other copy is available, the will can not be probated because the best and only evidence is the handwriting of the testator in said will.

ART. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. ART. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.  Formal Requirements for Additional Dispositions in a

Holographic Will 1. Signature 2. Date 

When there are Several Additional Dispositions 1. Signature and date, or 2. Each additional disposition signed and undated, but the last disposition signed and dated.

 NOTES

1. If several additional dispositions, each of which is dated, but only the last is dated and signed, then only the last additional disposition is valid.

2. If additional dispositions before the last are not signed and not dated, but the last disposition is signed and dated, what happens to the intermediate ones? • If made on one occasion – last disposition signed and dated validates all. • If on different occasions – intermediate additions are void. • But distinction is practically worthless because circumstances of execution of holographic wills are often difficult to prove.

ART. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature.  Full signature does not mean testator’s full name, only

his usual and customary signature.  Effect of non-compliance – the change [insertion,

cancellation, etc.] is simply considered NOT MADE. The will is not thereby invalidated as a whole, but at most only as regards the particular words erased, corrected or inserted UNLESS the portion involved is an essential part of the will, such as the date. CASE Kalaw v. Relova - Natividad Kalaw left a holographic will. It is not contested that the will was in her handwriting as certified by the NBI. The will however has alterations/insertions. The will originally named Rosa, the decedent’s sister as her sole heir and administrator, but this was crossed out and changed to her brother Gregorio. Such alteration was however not authenticated by the full signature of the decedent. - Hence, the will was denied probate by the trial court

Whether the will is valid or not. - It is invalid. Ordinarily, when a number of erasures, corrections and interlineations made by the testator in a holographic sill have not been noted under his signature, the will in not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interline. - However, in this case, the will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not have the signature of the testator, the effect must be that the entire will is voided for the reason that nothing remains in the will after that which could remain valid. - To state that the will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature.

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When a number of unauthenticated erasures, corrections and interlineations are made by the testator in a holographic will, the same is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected

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SUCCESSION REVIEWER or interlined. Except however, if after all the alterations were voided, nothing remains in the will. Comments – The holding that the insertion of the name of Gregorio cannot be given effect for not having been done in accordance with the requirement of Art814 is beyond question. Why, however, was the cancellation of the original testamentary institution given effect? That cancellation was not done in the way mandated by the article. To say, as the decision does, that “to state that the will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix,” is no argument, because it is not enough that the testator manifest his intent – he must manifest in a manner required by law.

ART. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. ART. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. ART. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.

 RULES OF FORMAL VALIDITY

1. FILIPINO ABROAD • According to the law in the country in which he may be • And may be probated in the Philippines 2. ALIEN ABROAD • Has effect in the Philippines if made according to: a) Law of place where he resides b) Law of his own country c) Philippine law 3. ALIEN IN THE PHILS. • Valid in Philippines / As if executed according to Philippine laws, if: a) Made according to law of country which he is a citizen or subject, and b) May be proved and allowed by law of his own country

 In relation to Articles 15 and 17 of the NCC

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. • NATIONALITY PRINCIPLE – Philippine law follows Filipino citizens wherever they may be.

Art. 17. The forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consulate officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated or by determinations or conventions agreed upon in a foreign country. • LEX LOCI CELEBRATIONIS – contracts, wills and other public instruments follow the formalities of the law where they are executed.  Every testator, whether Filipino or Alien, wherever he

may be, has five choices as to what law to follow for the form of his will: 1. Law of his Citizenship – Arts 816-817 for Aliens, Art15 for Filipinos 2. Law of place of Execution – Art17 3. Law of Domicile – Art816 for aliens abroad, applying to aliens in the Philippines and to Filipinos by analogy 4. Law of Residence - Art816 for aliens abroad, applying to aliens in the Philippines and to Filipinos by analogy 5. Philippine Law – Arts 816-817 for aliens, Art15 for Filipinos by analogy

ART. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.  JOINT WILL – one document which constitutes the wills

of two or more individuals.  If there are separate documents, each serving as one

independent will even if written on the same sheet, they are not joint wills prohibited by the article.  Reason for Prohibition of Joint Wills

1. Limitation on modes of revocation • One of the testators would not be able to destroy the document without also revoking it as the will of the other testator, or in any even, as to the latter, the problem of unauthorized destruction would come in 2. Diminution of testamentary secrecy

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SUCCESSION REVIEWER



3. Danger of undue influence 4. Danger of one testator killing the other • When a will is made jointly or in the same instrument, the spouse who is more dominant is liable to dictate the terms of the will for his or her own benefit or for that of the third persons whom he or she desires to favor. • Where the will is not only joint but reciprocal, either one of the spouses who may happen to be unscrupulous, wicked, faithless or desperate, knowing as he or she does the terms of the will whereby the whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose of the other. In Germany, joint wills are allowed but only between spouses.

ART. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.  Outline on Joint Wills

1. By Filipinos in the Philippines – VOID Art818 2. Filipinos Abroad – VOID Art819, even if allowed by law in place of execution. This is an exception to the permissive provisions of Arts17 and 815. 3. Aliens Abroad – VALID, Art816 4. Aliens in Philippines – Controverted, on one view it is void because of public policy, another view says it is valid because Art817 governs. 5. Filipino and Alien – Always VOID as to the Filipino, but either #3 or #4 governs, depending if he is abroad or in the Phils. Cases for Arts. 810-819 Ajero v CA - The holographic will of Annie San was submitted for probate. - Private respondent opposed the petition on the grounds that: neither the testament’s body nor the signature therein was in decedent’s handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was procured by petitioners through improper pressure and undue influence. - The petition was also contested by Dr. Ajero with respect to the disposition in the will of a house and lot. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner. - However, the trial court still admitted the decedent’s holographic will to probate. - The trial court held that since it must decide only the question of the identity of the will, its due execution and the testamentary capacity of the testatrix, it finds no reason for the disallowance of the will for its failure to comply with the

1ST SEM 2006-2007 formalities prescribed by law nor for lack of testamentary capacity of the testatrix. - On appeal, the CA reversed said Decision holding that the decedent did not comply with Articles 313 and 314 of the NCC. It found that certain dispositions in the will were either unsigned or undated, or signed by not dated. It also found that the erasures, alterations and cancellations made had not been authenticated by decedent. - Hence, this appeal. Whether the CA erred in holding that Articles 813 and 814 of the NCC were not complies with. - YES. The SC reversed the decision of CA. - A reading of Article 813 shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. - Likewise, a holographic will can still be admitted to probate notwithstanding non-compliance with the provisions of Article 814. - Unless the authenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator’s signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. - It is also proper to note that he requirements of authentication of changes and signing and dating of dispositions appear in provisions (Article 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). - This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the NCC – and not those found in Articles 813 and 814 – are essential to the probate of a holographic will. - Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate the grounds for disallowance of wills. These lists are exclusive; no other grounds can serve to disallow a will. - In a petition to admit a holographic will, the only issues to be resolved are: o whether the instrument submitted is, indeed, the decedent’s last will and testament; o whether said will was executed in accordance with the formalities prescribed by law; o whether the decedent had the necessary testamentary capacity at the time the will was executed; and o whether the execution of the will and its signing were the voluntary acts of the decedent. - The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud; accordingly, laws on this subject should be interpreted to attain these primordial ends. - In the case of holographic wills, what assures authenticity is the requirement that they be totally authographic or handwritten by the testator himself. Failure to strictly observe other formalities will no result in the disallowance of a holographic will that is unquestionable handwritten by the testator.

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SUCCESSION REVIEWER Subsection 4 – Witnesses to Wills ART. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mention in Article 805 of this Code. ART. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines (2) Those who have been convicted of falsification of a document, perjury or false testimony.  SIX QUALIFICATIONS OF WITNESSES

1. 2. 3. 4. 5. 6.

Of Sound Mind At Least 18 years of age Not Blind, Deaf or Dumb Able to read and write Domiciled in the Philippines Must not have been convicted of falsification of a document, perjury or false testimony.

 As to applicability to wills executed abroad, testator may

resort to either executing a holographic will or following the law of the place of execution, if no such witnesses are readily available.  Competence v. Credibility



The competency of a person to be an instrumental witness to a will is determined by the statute under Arts 820-821, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth.

CASES Gonzales v. CA - Santiago filed a petition with the CFI for the probate of the will allegedly executed by the deceased Gabriel. - Gonzales opposed the probate. Among other grounds, she contends that the witnesses who attested to the due execution of the will were not qualified witnesses. - She argues that the requirement in Art. 806 of the NCC that the witness must be credible is an absolute requirement which must be complied with before a last will and testament may be admitted. - She claims that to be ca credible witness, there must be evidence on record that the witness has good standing in the community, or that he is honest and upright, or reputed to be trustworthy and reliable. - Gonzales further contends that “credible” is not synonymous with “competent” because a witness may be competent under Arts. 820 and 821 of the NCC, and still not credible as required by Art. 805. - She further asserts that “credible” in the NCC should receive the same well-settled meaning it has under the Naturalization Law.

WON the witnesses who attested to Gabriel’s will are qualified to be such. - YES. It is enough that the qualifications in Art. 820 are complied with, such that the soundness of his mind can be shown by or deduced from his answers to questions propounded to him. And hi age is proven as well as the fact that he is not deaf and dumb and that he is able to read and write, and that he is not disqualified under Art. 821. - There is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation or trustworthiness and reliability. - His honesty and uprightness in order that his testimony may be believed and accepted by the trial court. - The contention that the term “credible” should be given the same meaning as that in the Naturalization Law is untenable. In naturalization proceedings, the character witnesses must prove their good standing, reputation and reliability. - In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution.

-

Art. 820, NCC: Any person of sound mind and of the age of 18 years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Art. 805.

-

Art. 821, NCC: The following are disqualified from being witnesses to a will: 1. Any person not domiciled in the Philippines 2. Those who have been convicted of falsification of a document, perjury or false testimony. (Other assignments of error discussed in the case are factual. SC did not reverse the findings of the CA.)

ART. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.  As in the case of testamentary capacity under Art801,

the time of the execution of the will is the only relevant temporal criterion in the determination of the competence of the witnesses.

ART. 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

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SUCCESSION REVIEWER admitted as a witness as if such devise or legacy had not been made or given.  Article is misplaced here because it talks about

CAPACITY TO SUCCEED and not capacity to be a witness.  Article 823 lays down a disqualification of a witness to

succeed to a legacy or devise when there are only 3 witnesses. Competence of the person as a witness is NOT AFFECTED.  Assuming all other requisites for formal validity are met, the will is perfectly valid but the witness [or relatives specified in the article] cannot inherit.  Article also applies to HEIRS. The intent of the law is to

cover all testamentary institutions.  Disqualification

applies only to the testamentary disposition made in favor of the witness or the specified relatives. If the party is also entitled to a legitime or an intestate share, that portion is not affected by the party’s witnessing the will.

ART. 825. A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered. ART. 826. In order that a codicil may be effective, it shall be executed as in the case of a will.  Codicil v. Subsequent Will

  

Codicil – explains, adds to or alters a disposition in a prior will. Subsequent will – makes independent and distinct dispositions. But the distinction is purely academic because Art826 requires that the codicil be in the form of a will anyway.

 Must the Codicil conform to the form of the will to which

it refers? NO. A holographic will can have an attested codicil and vice versa. Both may also be of the same kind.

 Question – Supposing there are 4 witnesses, each a

recipient of a testamentary disposition, dispositions to them valid or void? • Arguable

are the

•

May say that dispositions are VALID because the law only requires that there be 3 other competent witnesses to such will for the disposition to be valid. For the witnesses to be competent, they need only meet the qualifications in Art820 and have none of the disqualifications in Art821. • May also say that dispositions are INVALID because the intent of the law is to avoid witnesses from attesting to the will based on the dispositions as a consideration for such act. If all of the witnesses are recipients of testamentary dispositions, then there is greater chance that they are all witnessing because a consideration has been given to them.

ART. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator’s death does not prevent his creditors from being competent witnesses to his will.  Because the debt or charge is not a testamentary

disposition.

Subsection 5 – Codicils and Incorporation By Reference

ART. 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.  Article only refers to documents such as:

1. Inventories 2. Books of Accounts 3. Documents of Title 4. Papers of Similar Nature  DOES NOT include documents that make testamentary dispositions, or else the formal requirements of a will would be circumvented.  Can holographic wills incorporate documents by reference?  NO. Par4 of Art827 requires signatures of the testator and the witnesses on every page of the incorporated document [except voluminous annexes]. It seems therefore that only attested wills

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

can incorporate documents by reference, since only attested wills are witnessed. Unless testator executes a holographic will and superfluously has it witnessed.

Subsection 6 – Revocation of Wills And Testamentary Dispositions ART. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.  A will is essentially REVOCABLE or AMBULATORY.  This characteristic cannot be waived even by the

testator. There is no such thing as an irrevocable will.  This characteristic is consistent with the principle in

Art777 that successional rights vest only upon death.

ART. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.  RULES FOR REVOCATION



Revocation made in the Philippines. • Philippine Law



Revocation made Outside Philippines. 1. Testator not domiciled in Phils. • Law of place where the WILL was made • Law of place where the testator was domiciled at time of revocation.

2.

Testator domiciled in Phils. [Art829] • Philippine Law – consistent with domiciliary principle followed by this article

•

Law of place of Revocation – principle of lex loci celebrationis • Law of place where the WILL was made – by analogy with rules on revocation where testator is a non-Philippine domiciliary.  Curious that the law departs from the nationality theory

and adopts the domiciliary theory.

1ST SEM 2006-2007 ART. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.

 MODES OF REVOKING A WILL UNDER

PHILIPPINE LAW 1. BY OPERATION OF LAW • May be total or partial • Examples of revocation by operation of law a) Preterition – Art854 b) Legal Separation – Art63 par4 FC c) Unworthiness to succeed – Art1032 d) Transformation, alienation or loss of the object devised or bequeathed – Art957 e) Judicial demand of a credit given as a legacy - Art936 2. BY A SUBSEQUENT WILL OR CODICIL • Requisites for valid revocation by a subsequent instrument – a) Subsequent instrument must comply with formal requirements of a will b) Testator must possess testamentary capacity c) Subsequent instrument must either contain an express revocatory clause or be incompatible with the prior will d) Subsequent instrument must be probated to take effect • Revocation by subsequent will may be Total or Partial, Express or Implied a) Total – whole prior instrument is revoked

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• Loss or unavailability of a will may, under certain circumstances, give rise to the presumption that it had been revoked by physical destruction  Where a will which cannot be found is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed.  Same presumption arises where it is shown that testator had ready access to the will and it cannot be found after his death.  But such presumptions may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.

b) Partial – only certain provisions or dispositions of the prior instrument is revoked c) Express – revocation of prior instrument is stated in the subsequent instrument d) Implied – incompatibility between provisions of prior and subsequent instruments.

3.

BY PHYSICAL DESTRUCTION • Four ways to destroy – a) Burning b) Tearing c) Cancelling d) Obliterating • Physical destruction may be done by the testator personally or by another person acting in his presence and by his express direction.  Unauthorized if without express direction of testator. But what if with express direction but not in his presence?  Arguable. May say that it is authorized and therefore the destroyed instrument is revoked because of the intent and consent of the testator to revoke and destroy, and that the law does not provide that without the testator’s presence, destruction will become unauthorized.  On the other hand, it may be argued that the testator’s presence is required because at any time during the actual burning, destroying, etc. he may put a stop to the destruction if he changes his mind, and that is precisely why his presence is required? • Effect of unauthorized destruction – Will may still be proved as lost or destroyed [Art830 NCC and Rule 76 RoC]  However, this is possible only if the will is attested; if the will is holographic, it cannot be probated if lost, even if the loss or destruction was unauthorized, unless a copy survives. • Elements of a Valid Revocation by Physical Destruction a) CORPUS – physical destruction itself; there must be evidence of physical destruction b) ANIMUS –  Capacity and intent to revoke  Testator must have completed everything he intended to do • Both corpus an animus must concur.

CASES Testate Estate of Adriana Maloto v. CA - The nieces and nephews of Adriana Maloto, including Constancio Maloto and Aldina Casiano, thought that the latter died intestate. - Thus they filed an intestate proceeding for the settlement of the decedent’s estate. - In the course of the proceeding, the said relatives executed an extrajudicial petition of the estate, where they adjudicated among themselves the properties in the ratio of ¼ each. - Three years after, a document was delivered to the same court, which was believed to be the last will and testament of Adriana Maloto. - In the said will, Aldina and Constancio have shares that are bigger, different and more valuable than the one obtained by them in the extrajudicial partition. There were also other legatees named in the will. - Thus, Casiano and Aldina filed a petition for the allowance of the will in the Special Proceeding initially filed by them. - The CFI denied the motion to reopen the proceedings on the ground that it has been filed out of time. Whether or Not the CFI correctly dismissed the petition. - SC held in the affirmative. - The probate court has no jurisdiction to entertain the petition for the probate of the alleged will of Adriana Maloto in the prior Intestate Proceeding. - First, the motion to reopen the proceedings has been filed out of time. - Second, it is not proper to make a finding in an intestate estate proceeding that the discovered will has been revoked. - The more appropriate remedy for them is to initiate a separate proceeding for the probate of the alleged will. - In this view, the order in the prior special proceeding is not a bar for the filing of a petition for the probate of the will of Adriana Maloto. - It is not proper to make a finding in an intestate proceeding that a discovered will has been revoked. A separate petition for probate of the alleged will should be ordered filed.

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SUCCESSION REVIEWER ART. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. Revocation of a will by a subsequent will or codicil may be express [through a revocatory clause] or implied [through incompatibility].  In the old Civil Code, mere fact of a subsequent will, provided that it is valid, revoked the prior one, except only if the testator provides in the posterior will that the prior will was to subsists in whole or in part.  The present rule provides that the execution of a subsequent will does not ipso facto revoke a prior one. 

ART. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.  Efficacy of the revocatory clause does not depend on

the testamentary disposition of the revoking will, UNLESS the testator so provides. Revocation is generally speaking, an absolute provision, independent of the acceptance or capacity of the new heirs.  An EXCEPTION is where the testator provides in the

subsequent will that the revocation of the prior one is dependent on the Capacity or Acceptance of the heirs, devisees or legatees instituted in the subsequent will. • DEPENDENT RELATIVE REVOCATION

 It

must be remembered that dependent relative revocation applies only if it appears that the testator intended his at of revocation to be conditioned on the making of a new will or on its validity or efficacy.

 In Molo v. Molo, the Samson v. Naval doctrine was

cited, providing that “A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of the Code of Civil procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void.”  Question – supposing the institution of heirs, legatees

or devisees in the subsequent will is subject to a suspensive condition, is the revocation of the prior will absolute or conditional?  Depends on the testator’s intent.  If the subsequent will contains a revocatory clause which is absolute or unconditional, the revocation will be absolute regardless of the happening or non-happening of the suspensive condition.  But if the testator states in the subsequent will that the revocation of the prior will is subject to the occurrence of the suspensive condition, or if the will does not contain a revocatory clause, the revocation will depend on whether the condition happens or not. • If the suspensive condition does not occur, the institution is deemed never to have been made and the prior institution will be given effect. [i.e. no revocation of prior will] • This is in accord with the juridical nature of suspensive conditions, and is an instance of dependent relative revocation.  Is the rule on dependent relative revocation applicable if

 DEPENDENT RELATIVE REVOCATION





Where the act of destruction is connected with the making of another will as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. [Molo v. Molo]

the revocation of the will is by physical destruction?  YES. If testator executes a subsequent will revoking the prior will but conditioned on the validity of the subsequent will, then if the subsequent will is declared invalid, the prior will subsists.  In Molo v. Molo, in an obiter, SC held that the physical destruction of the will DID NOT revoke it, based on the inference made by the court in that case, that the testator meant the revocation to depend on the validity of a new will.



But apart from the fact that the statement is obiter because the facts did not clearly show that the will had been destroyed, it is arguable whether the prior will should be deemed to subsist despite its physical destruction. Can it not be argued that the act of the testator in destroying the will in fact confirmed his intent to revoke it?



In the case of Diaz v. De Leon, the testator executed a prior will but destroyed it and executed another will revoking the former. However, the second will was found to be not executed with all

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SUCCESSION REVIEWER the necessary requisites to constitute sufficient revocation. The court then held that the intention of revoking the will was manifest from the fact that the testator was anxious to withdraw or change the provisions he had made in his first will. Therefore, the court concluded that original will presented having been destroyed with animo revocandi, the original will and last testament cannot be probated and was effectively revoked.





In Molo, revocation of the prior will was not allowed because the court inferred that the testator meant revocation to depend on the validity of the new will, so in that case the rule on dependent relative revocation was applied. However, in De Leon, court held that the testator’s intent to revoke the prior will was not dependent on the validity of the subsequent will so even if the second will was void and insufficient as revocation, the prior will was still revoked because such revocation was not dependent on the validity of the second will [?!!]

1ST SEM 2006-2007 be void, probate will not be possible, UNLESS a copy of the holographic will survives.  The rule regarding nullity of revocation for an illegal

cause limits the freedom of the testator to revoke based on an illegal cause, but this is due to public policy considerations.  It must be noted that the illegal cause should be stated in the will as the cause of the revocation.

ART. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.  The part of the will which recognizes an illegitimate

child is NOT revocable because recognition is an irrevocable act. Therefore, even if the will is revoked, the recognition remains effective.  Under the Family Code, admission of illegitimate

filiation in a will would constitute proof of illegitimate filiation. According to Article 175 of the Family Code –

ART. 833. A revocation of a will based on a false cause or an illegal cause is null and void.  Wills are revocable ad nutum or at the testator’s

pleasure. The testator does not need to have a reason to revoke the will.  However, precisely because the law respects the testator’s true intent, this article sets aside a revocation that does not reflect such intent.

Art175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Art173, except when the action is based on the second paragraph of Art172, in which case the action may be brought during the lifetime of the alleged parent.  Basically, the principle laid down in Art834 remains

unaltered regarding these admissions contained in wills.

 REQUISITES FOR A FALSE / ILLEGAL CAUSE TO

RENDER REVOCATION VOID – 1. CAUSE MUST BE CONCRETE, FACTUAL AND NOT PURELY SUBJECTIVE • If a testator revoked on the stated ground that the heir was Ilocano and all Ilocanos are bad, it would just be prejudice and the revocation is valid because it is based on a subjective cause. 2. IT MUST BE FALSE 3. THE TESTATOR MUST NOT KNOW OF ITS FALSITY 4. IT MUST APPEAR FROM THE WILL THAT THE TESTATOR IS REVOKING BECAUSE OF THE CAUSE WHICH IS FALSE.  If the revocation is by physical destruction, and the

revoked will is holographic, then though the revocation

Subsection 7 – Republication and Revival of Wills ART. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. ART. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.  If the testator wishes to republish a will that is void as to

form, the only way to republish it is to execute a

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SUCCESSION REVIEWER subsequent will and reproduce [copy out] the dispositions of the original will. Mere reference to the prior will in the subsequent will is not enough.  A will is void as to form if it does not comply with the

RE-CAP OF FORMAL REQUIREMENTS OF A WILL

requirements of Arts804-818; 810-814; 818-819.

k. Defects and imperfections in form of attestation and language used shall not make the will invalid if there is substantial compliance with requirements of Art805. l. Law to be followed a. Filipino abroad b. Alien abroad c. Alien in the Philippines m. Prohibition on joint wills, especially by Filipinos even if executed in foreign country allowing joint wills. n. Witnesses must possess all the qualifications in Art820 and none of the disqualifications in Art821.

RE-CAP OF FORMAL REQUIREMENTS OF A WILL 1.

ATTESTED/ORDINARY WILL a. Must be in writing b. Executed in a language or dialect known to testator c. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses

d.

Attested and subscribed by at least 3 credible witnesses in presence of the testator & of one another

e. Testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses f. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another. g. All pages numbered correlatively in letters on the upper part of each page. h. Attestation clause, stating: a) Number of pages of the will b) Fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses

c)

Fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and of one another. i. Acknowledgement before a notary public by the testator and the witnesses. j. Handicapped Testator a) Deaf or deaf-mute – personally read the will if able to do so, otherwise designate 2 persons to read and communicate it to him. b) Blind – read to him twice, once by a

2. HOLOGRAPHIC WILL a. Must be entirely written b. Executed in a language or dialect known to testator c. Dated by the testator d. Signed by the hand of the testator himself e. Witnesses required a) Knows the handwriting and signature of the testator b) Explicitly declares that the will and the signature are in the handwriting of the testator f. Dispositions below testator’s signature must also be dated and signed. g. When several additional dispositions are signed but not dated, the last disposition must be signed and dated to validate the dispositions preceding it. h. Any insertion, cancellation, erasure or alteration must be authenticated by the testator’s full signature, otherwise it shall be deemed as not made. i. Prohibition on joint wills, especially by Filipinos even if executed in a foreign country where joint wills are allowed.

 If the testator wishes to Republish a will that is either:

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1. VOID for a reason other than a formal defect, or 2. Previously REVOKED The only thing necessary to republish it is for the testator to execute a subsequent will or codicil referring to the previous will. There is no need to reproduce the provisions of the prior will in the subsequent instrument.

 Why the difference on the rules between nullity as to

form and nullity based on other grounds? Prof. Balane says because Art835 is from Argentine Law whole Art836 is from California Law. Go figure.

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SUCCESSION REVIEWER ART. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not derive the first will, which can be revived only by another will or codicil.  Illustration

In 1985, X executed will 1 In 1987, X executed will 2 and expressly revoked will 1 In 1990, X executed will 3, revoking will 2 - When will 3 revoked will 2, it did not revive will 1.  This article is based on the theory of INSTANT

REVOCATION

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That the revocatory effect of the 2nd will is immediate. However, such theory is inconsistent with the principle that wills take effect mortis causa. Furthermore, to be effective for the purpose of revoking the first will, the second will must be probated. But it has already been revoked by the third will. A revoked will now has to be submitted to probate?

 Article applies only when the revocation of the first will

by the second will is EXPRESS. If the revocation by the second will is implied due to incompatible provisions, the article will not apply and the effect will be that the first will is revived.  However, when will 3 is itself inconsistent with will 1, there is still revocation.

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Also keep in mind Article 831 – Implied Revocations only annul such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills.

suppressing the will or tearing or destroying it, and then take steps in leading to the probate of the 1918 will. - Had the oppositors in this case not filed an opposition and had limited their objection to the intrinsic validity of the will, their plan to defeat the will and secure the intestacy of the deceased would have been accomplished. - If the said will was denied probate, it is due to oppositor’s fault and is unfair to impute bad faith to petitioner simply because she exerted effort to protect her own interest and prevent the intestacy of the deceased. WON, notwithstanding the disallowance of the 1939 will, the revocatory clause is valid and still nullifies the 1918 will. - SC held that the clause is likewise void because: - The Court held in Samson v. Naval that it cannot produce the effect of annulling the previous will since said revocatory clause is void.

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If it was really the intention of the deceased to revoke the first will, with the assumption that he in fact destroyed the original copy of the 1918 will since it cannot be found at present, he should also destroyed the duplicate copy of the said will which he had given to his wife. But he did not do so. Hence, it is possible that because of the long lapse of 21 yrs since the 1st will was executed, the original will had been misplaced or lost and forgetting there was a copy, he deemed it wise to execute another.

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Granting that he did destroy the 1st will, the 1918 will can still be admitted under the principle of “dependent relative revocation,” which is predicated on the theory that the testator did not intend to die intestate. - The doctrine of dependent relative revocation is established where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force.

 EXCEPTION – when the second will is holographic and

it is revoked by physical destruction, because then the possibility of its probate is foreclosed, unless of course a copy survives. Cases for Arts. 828-837 Molo v. Molo

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Mariano Molo died and was survived by his herein petitioner wife and his herein oppositors nieces and nephews. He left two wills one dated 1918 and the other 1939. The 2 nd will contains a clause which expressly revokes the former will. - Upon death, his wife filed a petition for probate of the 1939 will which was later on admitted. However, oppositors eventually filed a petition which resulted to the denial of probate of the said will. Petitioner wife then filed a petition for probate of the 1918 will, which was likewise denied by the oppositors in this case. Whether or not petitioner voluntarily and deliberately frustrated the probate of the 1939 will. - SC held that she did not because if it was indeed her intention, she could have accomplished her desire by merely

Gago v. Mamuyac - On 27 July 1918, Miguel Mamuyac of Agoo, La Union executed a last will and testament. - After his death, Francisco Gago asked the court for the probate of the will but was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciano Bauzon, and Catalina Mamuyac. - After the probate of the said will was denied, another will alleged to have been executed on 16 April 1919 was presented for probate to which the same oppositors resisted. - The oppositors argued that such will was not the original and was a mere copy; that the same had been cancelled and revoked by the testator; and that the same was not the last will and testament of Mamuyac. - The probate of the second will was likewise turned down for having been cancelled and revoked. - According to witnesses, the original of the said will was in the possession of Mamuyac before his death who revoked the same. WON Miguel Mamuyac’s last will has indeed been cancelled and revoked and therefore not admissible to probate.

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SUCCESSION REVIEWER - YES. There is positive proof, not denied, that the will in question had been cancelled in 1920. - The law does not require any evidence of the revocation or cancellation of a will to prove the same.

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The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. If it be shown that the will was in the possession of the testator when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption governs when the testator had ready access to the will and it cannot be found after his death. No presumption of destruction by any other person without the knowledge or authority of the testator. The force of presumption is never conclusive but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. Copies of wills should be admitted by courts with great caution in view of the difficulty of finding witnesses and other evidence. The duplicate may be admitted to probate if it was in the same manner executed with all formalities and requirements of the law. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. If it be shown that the will was in the possession of the testator when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption governs when the testator had ready access to the will and it cannot be found after his death. No presumption of destruction by any other person without the knowledge or authority of the testator. In a proceeding to probate a will, the burden of proof is upon the proponent to establish not only the execution of the will but also its existence.

The original will herein presented for probate having been destroyed with animo revocandi cannot now be probated as the will and last testament of Jesus de Leon. - Judgment affirmed. The destruction of a will with animo revocandi constitutes, in itself, a sufficient revocation.

Subsection 8 – Allowance and Disallowance of Wills ART. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.  Probate of a will is MANDATORY.  TWO KINDS OF PROBATE

1. 2.

Diaz v. De Leon - In this case, Diaz, the petitioner, denies that the will executed by the decedent Jesus de Leon. - However, the contestant says otherwise and alleging that the testator revoked his will by destroying it, and by executing another will expressly revoking the former. - Hence, this appeal. WON, the will executed by the Jesus de Leon, now deceased, was revoked by him. - The court finds that the will executed by the deceased is not clothed with all the necessary requisites to constitute a sufficient revocation.

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But according to the statute governing the subject in this jurisdiction, the destruction of a will with animo revocandi constitutes, in itself, a sufficient revocation. - From the evidence presented, the decedent asked that the same be returned to him. - The instrument was returned to the testator who ordered his servant to tear the document. This was done in his presence and before a nurse who testified to this effect. - The intention of revoking the will is manifest from the established fact that the testator was anxious to withdraw or change the provisions he has made in his first will.

POST MORTEM – after the testator’s death ANTE MORTEM – during his lifetime, features: • Easier for the courts to determine mental condition of a testator • Fraud, intimidation and undue influence are minimized • Easier correction of formal defects in the will • Once a will is probated ante mortem, the only questions that may remain for the courts to decide after the testator’s death will refer to the intrinsic validity of the testamentary dispositions.

 Rules on Probate for both post and ante mortem are

found in Rule 76 of the Rules of Court.  Finality of a Probate Decree

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Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata.

 Scope of a Final Decree of Probate

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A final decree of probate is conclusive as to the due execution of the will, i.e. as to the will’s extrinsic and formal validity only.

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Gallanosa v. Arcangel enumerates what are covered by the term Formal Validity and therefore conclusively settled by a final decree of probate – a) That the testator was of sound and disposing mind b) That his consent was not vitiated c) That the will was signed by the required number of witnesses, and  That all the formal requirements of the law have been complied with. d) That the will is genuine. Another way of defining the scope of a final decree of probate is to refer to art839. Any action based on any of the grounds for disallowance of a will enumerated in Article 839 can no longer be pursued once there is a final decree of probate.

 GENERAL RULE – A decree of probate, therefore does

not concern itself with the question of INTRINSIC validity and the probate court should not pass upon that issue.  EXCEPTION - When the probate of a will might become

an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue.  On the authority of Nepomuceno v. Ca, a probate court

may pass upon the issue of intrinsic validity if on the face of the will, its intrinsic nullity is patent. CASE Guevara v. Guevara - Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. - Victorino made a will distributing his estate to his children and granting devises to certain individuals. He also set aside 100 hectares of land either to be disposed of by him during his lifetime or for the payment of all his pending debts and expenses up to the time of his death. - Victorino died. His last will and testament, however, was never presented to the court for probate, nor has any administration proceeding ever been instituted for the settlement of his estate. - Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing judicially to

invoke the testamentary dispositions made therein in her favor, whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a portion of the large parcel of land described in the will. - But a little over four years after the testator's demise, she commenced the present action against Ernesto; - It was only during the trial of this case that she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased Victorino had acknowledged her as his natural daughter. - Upon that proof of acknowledgment she claimed her share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which reason, she asserted, the betterment therein made by the testator in favor of his legitimate son Ernesto should be disregarded. Whether the procedure adopted by Rosario Guevara is legal? - If the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. - They may not disregard the provisions of the will unless those provisions are contrary to law. - Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. - The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. - Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. - Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate of the court: - The presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy. - In fact, to ensure the presentation of the will to the court for probate the law punishes a person who neglects his duty to present it to the court (w/ a fine not exceeding P2000) and if he should persist in not presenting it, he may be committed to prison and kept there until he delivers the will. - The law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court";

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The probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees.

De la Cerna v. Potot

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- Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last will ad testament where they willed that their 2 parcels of land be given to Manuela Rebaca, their niece and that while each of them are living, he/she will continue to enjoy the fruits of the lands mentioned. - Bernabe died. Gervasia submitted the will for probated. By order of Oct. 31, 1939, the Court admitted for probate the said will but only for the part of Bernabe. - When Gervasia died, another petition for probate was instituted by Manuela, but because she and her attorney failed to appear in court, the petition was dismissed. - When the same was heard, the CFI declared the will void for being executed contrary to the prohibition on joint wills. On appeal, the order was reversed. Whether or not the will may be probated - Admittedly the probate of the will in 1939 was erroneous, however, because it was probated by a court of competent jurisdiction it has conclusive effect and a final judgment rendered on a petition for the probate of a will is binding upon the whole world. However, this is only with respect to the estate of the husband but cannot affect the estate of the wife; considering that a joint will is a separate will of each testator. - The joint will being prohibited by law, its validity, in so far as the estate of the wife is concerned, must be reexamine and adjudicated de novo. - The undivided interest of the wife should pass upon her death to her intestate heirs and not to the testamentary heir. Thus as to the disposition of the wife, the will cannot be given effect. - A decree of probate decree is conclusive on the due execution and the formal validity of the will subject to such probate.

- The court dismissed said action. However, the court set aside the dismissal after the heirs filed a motion for reconsideration. Hence, this appeal. Whether the legal heirs have a cause of action for the “annulment” of the will of Florentino and for the recovery of the 61 parcels of land adjudicated under that will to the petitioners.

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The decree of probate is conclusive as to the due execution or formal validity of the will. That means that the testator was of sound and disposing mind at the time he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine. - Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. - After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore.

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Gallanosa v. Arcangel

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- Florentino Hitosis was a childless widower and was survived by his brother Lito. - In his will, Florentino bequeathed his ½ share in the conjugal estate to his second wife, Tecla, and, should Tecla predecease him, as was the case, his ½ share would be assigned to spouses Gallanosa. Pedro Gallanosa was Tecla’s son by her first marriage who grew up under the care of Florentino. His other properties were bequeathed to his protégé Adolfo Fortajada. - Upon his death, a petition for the probate of his will was wile. Opposition was registered by Florentino’s brother, nephews and nieces. - After a hearing, where the oppositors did not present any evidence, the Judge admitted the will to probate. - The testator’s legal heirs did not appeal from the decree of probate and from the order of partition and distribution. - Later, the legal heirs filed a case for recovery of 61 parcels of land against Pedro alleging that they had been in continuous possession of those lands and praying that they be declared owners thereof.

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Pedro moved for a dismissal which was later granted by the Judge on the ground of res judicata. - The legal heirs did not appeal from the order of dismissal. - 15 years after the dismissal of the first civil case and 28 years after the probate of the will, the legal heirs filed a case for “annulment of the will” alleging fraud and deceit.

NO. The SC held that the lower court committed a grave abuse of discretion in setting aside its order of dismissal and ignoring the testamentary case and the first civil case which is the same as the instant case. It is evident that second civil case is barred by res judicata and by prescription.

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The SC also held that the decree of adjudication, having rendered in a proceeding in rem, is binding upon the whole world. Moreover, the dismissal of the first civil case, which is a judgment in personam, was an adjudication on the merits. Thus. It constitutes a bar by former judgment under the Rules of Court. The SC also held that the lower court erred in saying that the action for the recovery of the lands had not prescribed. The SC ruled that the Art. 1410 of NCC (the action or defense for the declaration of the inexistence of a contract does not prescribe) cannot apply to last wills and testaments. The Rules of Court does not sanction an action for “annulment” of a will. A final decree of probate is conclusive as to the due execution of the will. A decree of adjudication in a testate proceeding is binding on the whole world. After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of court has expired, a final judgment or order can be set aside only on the grounds of: (a) lack of jurisdiction or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling the judgment is four (4) years from the discovery of fraud. The Civil Law rule that an action for declaration of inexistence of a contract does not prescribe cannot be applied to last wills and testaments.

Nepomuceno v. CA - Martin Jugo died in 1974, leaving a last Will and Testament signed by him and 3 other witnesses, in accordance with the formalities prescribed by the law. - Martin named and appointed Sofia Nepomuceno as his sole and only executor of his estate. - The will specifically stated that Jugo was legally married to Rufina Gomez, by whom he has 2 children. But since 1962, they have been estranged and Martin had been living with

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Sofia as husband and wife. Martin and Sofia were married in Tarlac before the Justice of the Peace. Martin devised to his forced heirs (Rufina and their 2 children) his entire estate, and the free portion thereof to Sofia. Sofia filed a petition for the probate of the last will and testament of Martin. Rufina and her children opposed. CFI denied probate on the ground that Martin admitted in his will that he had been unlawfully cohabiting with Sofia. CA reversed and admitted the will to probate, but declared that the devise in favor of Sofia is void. Sofia contends that the validity of the testamentary provision in her favor should be assailed in another proceeding and that the only purpose of the probate is to conclusively establish that will was executed with the formalities required by law and that the testator has the mental capacity to execute the same.

WON the probate court validly passed upon the intrinsic validity of the testamentary provision in favor of Sofia. - YES. - The general rule is that in probate proceedings, the court’s area of inquiry is limited to an examination and resolution of the extrinsic validity of the will. - Such rule is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to pass upon certain provisions of the will. - A will no matter how valid it may appear extrinsically may be void. A separate proceeding to determine its intrinsic validity would be superfluous. - Sofia cannot claim good faith. She knew that Martin had a pre-existing marriage when they got married. - Further, donations between persons living in adultery or concubinage is prohibited by the Civil Code. - GR: In probate proceedings, the probate court is usually limited to an examination and resolution of the extrinsic validity of the will. - E: For “practical considerations,” the probate court is not powerless to pass upon certain provisions of the will even before it is probated.

ART. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intent that the instrument he

signed should be his will at the time of affixing his signature thereto. An Exclusive Enumeration of the grounds for disallowance of a will.  These are matters involved in formal validity. Once a probate decree is final, such decree forecloses any subsequent challenge on any of the matters enumerated in this article.  If any of these grounds for disallowance are proven, the will shall be set aside as VOID.  A will is either valid or void. If none of the defects enumerated in this article are present, it is valid; if any one of these defects is present, the will is void. The issue of formal validity or nullity is precisely what the probate proceedings will determine.  There is no such thing as a Voidable Will. 

 GROUNDS FOR DISALLOWANCE OF A WILL

1.

FORMALITIES • Those referred to in Articles 804-818, 818819 and 829-821

2.

TESTATOR INSANE OR MENTALLY INCAPABLE AT TIME OF EXECUTION • Articles 798 – 801 on testamentary capacity and intent

3.

FORCE, DURESS, INFLUENCE OF FEAR OR THREATS • Force or Violence – when in order to wrest consent, serious or irresistible force is employed. • Duress or Intimidation – when one of the contracting parties is compelled by a reasonable and well-grounded fear of imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. Age, sex and condition of the person are borne in mind. Threat to enforce a just or legal claim through competent authority does not vitiate consent.

4.

UNDUE & IMPROPER PRESSURE AND INFLUENCE • Undue Influence – when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. Circumstances such as the following shall be considered: confidential, family, spiritual and other relations between parties, or fact that person unduly influenced was suffering from mental weakness or ignorant or in financial distress.

5.

SIGNATURE PROCURED THROUGH FRAUD • Fraud – when through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to.

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MISTAKE OR TESTATOR DID NOT INTENT INSTRUMENT TO BE HIS WILL WHEN HE AFFIXED HIS SIGNATURE THERETO • Mistake – must refer to substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into the contract. Mistake as to identity or qualifications only vitiates consent when such were the principal cause of the contract. A simple mistake of account gives rise to correction.

Cases for Arts. 838-839 Reyes v. CA - Torcuato Reyes died and left all his property to his wife Asuncion Reyes. - His recognized natural children with Galolo and his natural children with Agape opposed the probate of the will on the ground that Asuncion is not the legal wife of Torcuato since she was a relative within the fourth civil degree and she was previously married to a certain Lupo Ebarle. Whether or not the will must be denied probate. - SC held that the will must be admitted because: o The only issues decided during probate are: (a) whether the testator has animus testandi, (b) whether vices of consent attended the execution of the will, and (c) whether the formalities of the will had been complied with. Hence, the declaration of the testator that Asuncion is his wife already involves an inquiry on the intrinsic validity of the will and need not be inquired by probate court. o There was never an open admission in the will of any illicit relationship which could be a reason for deciding on such issue during probate. (One of the exceptions is when on the defect is evident on the face of the will.) o Testimonies of the witnesses against Asuncion were merely hearsay and even uncertain as to the whereabouts of existence of Lupo Ebarle. o A will is a testator speaking after death. All doubts must be resolved in favor of the testator’s having meant just what he said.

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GR: Courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator. It does not determine nor even by implication prejudge the validity or efficacy of the will's provisions. The intrinsic validity is not considered since the consideration thereof usually comes only after the will has been proved and allowed.

1ST SEM 2006-2007 - Exceptions: 1. When the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically invalid. 2. When "practical considerations" demanded it as when there is preterition of heirs 3. When the testamentary provisions are of doubtful legality. 4. When the parties agree that the intrinsic validity be first determined, the probate court may also do so.

Balanay v. Martinez - Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal properties as if they were all owned by her, disposing of her husband's one-half share, and providing that the properties should not be divided during her husband's lifetime but should remain intact and that the legitimes should be paid in cash to be satisfied out of the fruits of the properties. - Felix Balanay, Jr. filed a petition for the approval of his mother's will which was opposed by the husband and some of her children. - Thereafter, Felix Jr. submitted to the court a document showing his father's conformity to the testamentary distribution, renouncing his hereditary rights in favor of his children in deference to the memory of his wife. - The Court gave effect to the affidavit and conformity of the surviving spouse. - Meanwhile, a certain Atty. David Montaña, Sr. moved to dismiss the probate proceedings on the ground that the will was void because Leodegaria cannot validly dispose of her husband’s share. - Said motion was granted by the probate court. - Petitioner impugned the order of dismissal claiming that Atty. Montaña had no authority to ask for the dismissal of the petition for allowance of will and that the court erred in declaring the will void before resolving the question of its formal validity. Whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. - NO. In view of certain unusual provisions of the will, which are of dubious legality, the trial court acted correctly in passing upon the will’s intrinsic validity even before the formal validity had been established. - The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (In this case, the preterited heir was the surviving spouse) Whether the court erred in converting the testate proceeding into an intestate proceeding - YES. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions unless it is to he presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). - "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of

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SUCCESSION REVIEWER the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" - Void provisions in the will: 1. The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and pro indiviso 2. that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article '080 of the Civil Code Whether an heir may validly renounce his share - YES. Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. '79['] and '04', Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. '050['] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected. - Generally, the probate of a will is mandatory and it is the duty of the court to pass first upon its formal validity except in extreme cases where the will is on its face intrinsically void. - A will is not rendered null and void by reason of the existence of some illegal or void provisions since the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made; - Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate.

Coso v. Daza - The testator, a married man, had illicit relations with Rosario Lopez in Spain, having met her in 1898. - Rosario Lopez took care of the testator in the said foreign land when he had been severely ill from 1909 to 1916, and bore an illegitimate son by him. - When the testator came back to the Philippines in 1918, Rosario followed, as her heart did dictate, and kept close until the testator’s death in 1919.

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Undue influence is said to have been exerted over the testator’s mind by Rosario as the will gave the tercio de libre disposicion to their illegitimate son and provided for the payment to Rosario of 1,900 Spanish duros by way of reimbursement for the expenses incurred by Rosario in taking care of him.

Whether or not Rosario Lopez exerted undue influence over the testator of such character as to vitiate his will. - NO. The parties challenging the will on the ground of undue influence were not able to discharge the burden of proving the same. - While it is shown that the testator entertained strong affections for Rosario Lopez, it does not appear that her influence so overpowered and subjugated his mind as to

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“destroy his free agency and make him express the will of another rather than his own.” The testator was an intelligent man, a lawyer by profession, appears to have his known his own mind, and may well have been actuated only by a legitimate sense of duty in making provisions for the welfare of his illegitimate son and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices she had made for him. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will. No imposition or fraud has been shown in the present case. To be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another, rather than his own. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will. No imposition or fraud has been shown in the present case. Influence gained by kindness and affection will not be regarded as ‘undue’, if no imposition or fraud be practiced, even though it induces the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.

Macam v. Gatmaitan - On March 27, 1933, Nicolasa Macam filed in the CFI a petition for probate of the will date July 12, 1932 and of the codicil thereof dated February 17, 1933, executed by Leoanarda Macam who died on March 18, 1933. - With the judge absent that there being no opposition to the probate of the will, upon the instructions of the judge, clerk of court took the evidence relative to the probate of the will. - Inasmuch as Gatmaitan opposed to the probate of the codicil, the clerk of court deemed himself unauthorized to take evidence relative thereto and refrained from doing so. - The judge then entered an order allowing the probate of the will. - Hearing then was heard for the opposition on the probate of the codicil, which Gatmaitan filed, one of the legatees instituted in the will which had already been allowed by final and executory judgment. - Probate of the codicil was denied. - Hence this petition. WON, the probate of a will by final judgment prior to that of a codicil thereof a bar to the probate of said codicil. (With respect to the appeal of Macam regarding the probate of the will.) - No, the fact that a will has been allowed without any opposition and the order allowing the same has become final and executory is not a bar to the presentation and probate of a codicil, provided it complies with all necessary formalities for executing a will required by the Civil Code. - It is not necessary that the will and the codicil be probated together, as the codicil may be concealed by an interested party and it may not be discovered until after the will has already been allowed. - This is because the purpose of the probate is merely to determine whether or not the will and the codicil meet all the legal requisites.

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SUCCESSION REVIEWER WON, the failure to file the opposition to the probate of a will constitute a bar to the presentation of the codicil for probate. (With respect to the opposition of Gatmaitan to the probate of the codicil.) - No, the fact that Gatmaitan failed to file opposition to the probate of the will does not prevent her from filing opposition to the probate of the codicil thereof. - This is because the will may satisfy all the external requisites necessary for its validity, but the codicil may, at the time of is execution, not be in conformity therewith. - Hence, the order appealed from is reversed and it is ordered that the probate for the codicil and the opposition thereto be reinstated. - The fact that a will has been probated and the order allowing the same has become final and executory, is not a bar to the presentation and probate of a codicil, although its existence was known at the time of the probate of the will. - The failure of the oppositor to the probate of a codicil to fill opposition to the probate of the will, having knowledge of such proceedings, does not constitute an abandonment of a right, nor does it deprive someone of the right to oppose the probate of said codicil.

SECTION 2 – INSTITUTION OF HEIR ART. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or person who are to succeed him in his property and transmissible rights and obligations. 

Rules on institution of heir set forth in this section apply as well to institution of Devisees and Legatees.

ART. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. ART. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.

 Even if the will does not contain any testamentary

disposition, it will be formally valid provided it complies with all the formal requisites. This is in keeping with the character of wills as dispositive of property under Art783.  HOW MUCH CAN BE DISPOSED OF BY WILL?

1. No Compulsory Heirs – Entire hereditary estate 2. There are Compulsory Heirs – the disposable portion or the net hereditary estate minus the legitimes. 

The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are possible and so the amount of disposable portion is also variable.

 If the testator disposes by will of LESS than he is

allowed to, there will be MIXED succession –  Testamentary succession as to the part disposed of by will, and  Intestate succession as to the part not disposed of by the will.  The legitimes, of course, pass by strict operation of law.

ART. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. ART. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among the persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir.  REQUIREMENT FOR DESIGNATION OF HEIR

 

The heir, legatee or devisee must be identified in the will with sufficient clarity to leave no doubt as to the testator’s intention. The basic rule in testamentary succession always is respect for and compliance with the testator’s wishes.

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designated their shares, therefore Art846 applied to C and D.

 The designation of name and surname is DIRECTORY.

What is required is that the identity of the designated successor be sufficiently established. This is usually done by giving the name and surname, but there are other ways as can be gleaned from Art843 par2, such as to one’s ‘eldest first cousin’.  If there is any AMBIGUITY in the designation, it should

be resolved in light of Art789 – by the context of the will and any extrinsic evidence available, except the testator’s oral declarations.  If it is not possible to resolve the ambiguity, the testator’s intent becomes indeterminable and therefore intestacy as to that portion will result.

ART. 845. Every disposition in favor of an unknown person shall be void, unless by some even or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid.  Unknown Person  This article refers to a successor whose identity cannot

be determined because the designation in the will is so unclear or so ambiguous as to be incapable of resolution.  This does not refer to one with whom the testator is not personally acquainted. The testator may institute somebody who is a perfect stranger to him, provided the identity is clearly designated in the will

ART. 847. When the testator institutes some heirs individually and others collectively as when he says, “I designate as my heirs A and B, and the children of C,” those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise.  Equality and Individuality of Designation  This article follows the basic rule of equality in the

previous article. In addition, it established the PRESUMPTION that the heirs collectively referred to are designated per capita along with those separately designated.  If the testator intends a block designation, he should so specify.

ART. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears.  Once again, this article follows the general rule of

equality laid down in Art846.  Also, if the testator intends an unequal apportionment,

he should so specify.

ART. 846. Heirs instituted without designation of shares shall inherit in equal parts.

 DIFFERENT RULE IN INTESTACY



Art848 only applies to testamentary succession, wherein siblings, regardless of whether full or half blood, get equal shares except if a different intention of the testator appears.



In INTESTACY, the rule is different. The applicable provision is Art 1006 which establishes a proportion of 2:1 between full and half blood brothers and sisters, but without prejudice to the rule prohibiting succession ab intestato between legitimate and illegitimate siblings. [Art992]

 GENERAL PRESUMPTION



Equality in cases of collective designation. If the testator intends an unequal apportionment, he should so specify.  The article applies only in testamentary succession, and only among testamentary heirs or devisees or legatees.  It will NOT APPLY to an heir who is both a compulsory and a testamentary heir, for in that case the heir will get his legitime and his testamentary portion.  Not explicitly covered by this article is an instance where the shares of some of the heirs are designated and those of others are not.  Example – “I institute to ¼ of my estate A, B, C and D, of which A will get 1/3 and B is to get ¼.” The shares of C and D are unspecified. Are they to divide equally the remaining portion of the ¼ of the estate, after deducting A’s and B’s portions [The remainder is 5/12 of ¼?]  YES, because the article talks about heirs instituted without designation of shares. A and B have been 

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. Art. 992. An illegitimate child has no right to inherit ab intestate 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.  RE-CAP

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

Testamentary Succession – equality in shares of full and half blood brothers and sisters unless the testator provides otherwise [Art848] Intestacy – Proportion of 2:1 between full and half blood brothers and sisters [Art1006], and only if the disqualification in Art992 does not apply.

Question – Does Art848 apply even to illegitimate brothers and sisters, in cases where the testator is of legitimate status and vice versa? YES. Art848 does not distinguish.

ART. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively.  Article lays down the same rule as Arts. 846 and 847.  Equality and Individuality of institution are presumed.  If the testator desires a different mode of

apportionment, he should so specify.

ART. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.

Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children. - More than two years after her will was allowed to probate, Basilia died. - The petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs. According to petitioners, the language used in the will gives rise to the inference that the late Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. Whether or not the institution of heirs would retain efficacy in the event there exists proof that the adoption of the said heirs by the decedent is false. - YES. If the impelling reason or cause for the institution of the respondents as her heirs was the testatrix's belief that under the law she could not do otherwise, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will.

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 GENERAL RULE – the falsity of the stated cause for

the testamentary institution DOES NOT AFFECT the validity or efficacy of the institution.  Reason – testamentary disposition is ultimately based on liberality.

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 EXCEPTION – the falsity of the stated cause for

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institution will set aside the institution if the following factors are present: 1. Cause for institution is stated in the will 2. Cause must be shown to be false 3. It appears on the face of the will that if the testator had known of the falsity of such cause, he would not have instituted the heir.

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CASE Austria v. Reyes - Basilia Austria filed a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the petitioners Ruben, Consuelo and Lauro Austria, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of the will allowed - The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz

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One fact prevails, however, and it is the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate, as was done in this case. The legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack. Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause. So compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. Where the testator was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence this Court held, it is its duty to give full expression to her will.

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SUCCESSION REVIEWER ART. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance.  The wording of the article, according to Prof. Balane, is

erroneous because legal succession does not take place with respect to the remainder of the estate but to the remainder of the disposable portion.  There may after all be compulsory heirs whose legitimes will therefore cover part of the estate, the and the legitimes do not pass by legal or intestate succession.  Suggested Rewording –

Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, less than the entire disposable portion, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance.  Moreover, this article states exactly the same rule laid

down in Art841. there is absolutely no need for the redundancy.

ART. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. ART. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally.  In both articles –

1. There are more than 1 instituted heir 2. Testator intended them to get the whole estate or the whole disposable portion 3. Testator designated a definite portion for each.

 ART. 852 – the total of all the portions is less than the

whole estate or the whole disposable portion. Therefore, a proportionate increase is necessary.  The difference cannot pass by intestacy because the testator’s intention is clear to give the instituted heirs the entire amount.  ART. 853 – the reverse occurs, the total exceeds the

whole estate or the whole disposable portion. Thus a proportionate reduction must be made.

FORMULA FOR PROPORTIONATE INCREASE OR DECREASE P HEIR’S SHARE . P TOTAL DISPOSED DISPOSABLE

=

X

P TOTAL ESTATE

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.  PRETERITION – means omission, but from what? The

answer to that question is the basic problem in preterition.  Manresa’s Definition – “Preterition consists in the

omission of an heir in the will, either because he is not named, or, although he is named as a father, son, etc., he is neither instituted as an heir or expressly disinherited, nor assigned any part of the estate, thus being tacitly deprived of his right to the legitime.  Castan’s Definition – “By preterition is meant the

omission in the will of any of the compulsory heirs, without being expressly disinherited. It is thus a tacit deprivation of the legitime, as distinguished from disinheritance, which is an express deprivation.”  OMISSION THAT CONSTITUTES PRETERITION

•

If the heir in question is instituted in the will but the portion given to him by the will is less than his legitime – there is no preterition.  In the case of Reyes v. Baretto-Datu: 1. There was a compulsory heir in the direct line 2. Such heir was instituted in the will 3. The testamentary disposition given to such heir was less than her legitime

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• If the heir is not mentioned in the will nor was a recipient of a donation inter vivos from the testator, but not all of the estate is disposed of by the will – there is no preterition.  The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the will [the vacant portion]. The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of his legitime, under Articles 906 and 907.

 Based on these, the holding was that there was NO PRETERITION.  The reason was there was no TOTAL OMISSION, inasmuch as the heir received something from the inheritance. The heir’s remedy is not found in Art854 but in Arts. 906 and 907 for Completion of Legitime. Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same may be fully satisfied. Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. • If the heir is given a legacy or devise, there is no preterition.  Should the value of the legacy or devise be less than the recipient’s legitime, his remedy is only for completion of legitime under Articles 906 and 907. • If the heir received a donation inter vivos from the testator – the better view is that there is no preterition  Reason – donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062. Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious.

For there to be preterition, therefore, the heir in question must have received NOTHING from the testator by way of: 1. Testamentary succession 2. Legacy or devise 3. Donation inter vivos, or 4. Intestacy  Preterition means therefore – TOTAL OMISSION IN THE INHERITANCE. 

 WHO ARE INCLUDED WITHIN THE TERMS OF THE

ARTICLE?  A compulsory heir in the direct line, whether living at the time of the execution of the will or born after the death of the testator. 1. COMPULSORY HEIRS IN THE DIRECT LINE – • Covers children or descendants, and in proper cases [in default of children or descendants] parents or ascendants • Surviving Spouse – does not fall within the purview of this article because although a compulsory heir, is not in the direct line. • Under Art964 par2, direct line is that constituted by the series of degrees among ascendants and descendants.

2.

Are ILLEGITIMATE DESCENDANTS OR ASCENDANTS within the coverage of “compulsory heirs in the direct line”? • Manresa – YES, Scaevola – NO. • Manresa’s seems to be the better opinion, since the law does not distinguish.

3. QUASI-POSTHUMOUS CHILDREN –

•

There is a flaw in the wording of the article. The phrase “whether living at the time of the execution of the will or born after the death of the testator” does not, by its terms, include those compulsory heirs in the direct line born after the execution of the will but before the testator’s death [los cuasi posthumous]. • However, such children are, without doubt, to be included within the purview of the protection of this article. 4. PREDECEASE OF PRETERITED COMPULSORY HEIR –

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•

2nd paragraph of Art 854 provides: If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. • Should the preterited heir predecease or be unworthy to succeed the testator, the question of preterition of that heir becomes moot. • However, should there be a descendant of that heir who is himself preterited, then the effects of preterition will arise. • Example – X has 2 legit kids: A and B. X makes a will which results in preterition of A. A dies before X but leaves a legit child, A-1, who is himself completely omitted from the inheritance [A-1 being entitled to succeed X by representation]. Art854 will apply, not because A was preterited but because A-1 was preterited. 5. ADOPTED CHILDREN • Case of Acain v. IAC answers the question of whether an adopted child is within the contemplation of this article as “compulsory heir in the direct line” and rules in favor of the adopted child’s inclusion in the phrase. • An adopted child therefore, if totally omitted in the inheritance, is preterited within the contemplation of Art854 and can invoke its protection and consequences. • Acain’s logic is that since an adopted child is given by law the same rights as a legitimate child, vis-à-vis the adopter, then the adopted child can, in proper cases, invoke Art854 in the same manner that a legitimate child can. • The law cited was Art39 of PD603 or the Child and Youth Welfare Code as supplanted by Art189[1] of the Gamily Code, likewise supplanted by Secs 17 and 18 of RA8552 or the Domestic Adoption Act of 1998.  EFFECT OF PRETERITION

 



Annulment of the institution of an heir but validity of legacies and devisees to the extent that these latter do not impair legitimes. Distinction between heirs and legatees/devisees – This in the only instance when there is still a practical effect in the distinction between an heir and a legatee or devisee in Art782. According to the case of Nuguid v. Nuguid, annulment of institution of heir means only the legacies and devises will merit consideration if expressly given in the will. Art854 does not mean that the mere institution of a universal heir in a will – void because of preterition – would give the heir



so instituted a share in the inheritance. As to the heir, the will is inexistent. In that case, the only provision in the will was the institution of the petitioner a universal heir. That institution, by itself, was held null and void. Therefore, intestate succession ensued.



However, this was muddled in the case of Solano v. CA wherein it was ruled that the preterition of illegitimate children should annul the institution of the heir “only insofar as the legitime of the omitted heirs is impaired”.



Prof. Balane says this is not annulment but reduction, and this would erase the distinction between the effect of preterition on the institution of the heir and its effect on legacies and devises.



Fortunately, this was cleared up in Acain v. CA wherein it was held that “Preterition annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.”

 RE-CAP – the correct rule of preterition is that:





Preterition abrogates the institution of heir but respects legacies and devises insofar as these do not impair the legitimes. Thus, if the will contains only institutions of heirs and there is preterition, TOTAL INTESTACY will result. If there are legacies or devises and there is preterition, the legacies or devises will stand, to the extent of the free portion [merely to be reduced and not set aside, if the legitimes are impaired] but the institution of heirs, if any, will be swept away.

 PRETERITION v. INEFFECTIVE DISINHERITANCE



 

Preterition is total omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir, this article will not apply. Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share.

CASES Reyes v. Baretto-Datu - Bibiano Barretto, married to Maria Gerardo, died and left his properties to his daughters Salud and Milagros, except for the usufruct of a fishpond which he reserved for his widow. - Maria Gerardo as administratrix, by a project of partition, distributed the estate and delivered the shares of the heirs. Salud took immediate possession of her share and procured the issuance of land titles to her name.

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Upon Maria Gerardo’s death, it was discovered that she executed 2 wills, in the first she instituted both Salud and Milagros as heirs and in the second she revoked the same and left all her properties to Milagros alone. The 2nd will was probated and it was proved that Salud was not the daughter of Maria. - Having lost her share in the estate of Maria, Salud went after the remnant of Bibiano’s estate, which was given in usufruct to Maria, by filing an action for the recovery of ½ thereof. - This action afforded Milagros an opportunity to set up her right of ownership not only of the fishpond but sought recovery of all the properties acquired by Salud from Bibiano, because Salud is a spurious heir not entitled to any share. - Milagros also alleged that since what was allotted in her father’s will to her was smaller than her legitime, then there is preterition, thus annulling the institution of heirs in the will. Whether Salud may inherit from Bibiano - Yes. Salud admittedly has been instituted heir in the Bibiano’s will together with Milagros. Hence, the partition had between them could not be one such had with a party who was not believed to be an heir without really being one, and was not null and void. The legal precept does not speak of children or descendants but of heirs, and the fact that Salud happened not to be a daughter of the testator does not preclude her being one of the heirs expressly named in his testament; For Bibiano was at liberty to assign the free portion of his estate to whomsoever he choose. While the ½ share assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of Bibiano. Whether there was preterition - None. There was no preterition even if Milagros was allotted a smaller share than her legitime because there was no total omission of a forced heir. - If the heir in question is instituted in the will but the portion given to him by the will is less than his legitime, there is no preterition.

Aznar v. Duncan - Edward Christensen, a citizen of California with domicile in the Philippines, died leaving a will. - The will was admitted to probate. In the same decision, the court declared that Maria Helen Christensen Garcia was a natural child of Edward. - In his will, Edward expressly mentioned that he bequeath unto Helen Garcia Php 3,600 notwithstanding the fact she is not in any way related to him, nor has she been at any time adopted by him. - The court then issued an order approving the project partition submitted by the executor wherein the properties of the estate were divided equally between Maria Lucy Christensen Duncan, whom the testator had expressly recognized in his will as his natural daughter and Helen Garcia, who had been judicially declared as such after his death.

-

The said order was based on the proposition that since Garcia had been preterited in the will, the institution of Duncan as heir was annulled, and hence the properties passed to both of them as if the deceased had died intestate. Thus, Duncan appealed.

Whether the estate should pertain to Duncan and Garcia in equal shares or whether the inheritance of Duncan as instituted heir should be merely reduced to the extent necessary to cover the legitime of Garcia, equivalent to ¼ of the entire estate. - In order that the right of a forced heir may be limited only to the completion of his legitime (instead of the annulment of the institution of heirs) is it necessary that he should be recognized or referred to in the will as heir? - The SC set aside the project of partition. It remanded the case with instruction to partition the hereditary estate by giving to Garcia no more than the portion corresponding to her legitime, equivalent to ¼ of the hereditary estate. - The case is not a case of preterition but a case of completion of legitime. The institution in the will not be annulled. There would be no intestacy. - The Court mentioned Manresa and 3 decisions of the SC of Spain. In each of those case, the testator left to one who was a forced heir a legacy worth less than the legitime, but without referring to the legatee as an heir or even as a relative, and will the rest of the estate to other persons. It was held that in such cases, the heir could not ask that the institution of heirs be annulled entirely, but only that the legitime be completed. - The Court viewed such as in consonance with the expressed wishes of Edward as may be observed from the provisions of his will. He refused to acknowledge Garcia as his natural daughter and limited her share to a legacy of Php 3600. The fact that she was subsequently declared judicially to possess such status is no reason to assume that had the judicial declaration come during his lifetime his subjective attitude towards her would have undergone any change and that he would have will his estate equally to her and to Duncan, who alone was expressly recognized by him - There is no preterition if the heir is given a legacy or devise. - Art. 854 of the NCC: The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. - Art. 906 of the NCC: Any compulsory heir whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.

-

Preterition is the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. - Whether the testator gave a legacy to a person, whom he characterized in the testamentary provision as not related to him, but later his person was judicially declared to be his acknowledged natural child, the case is not a case of preterition but a case of completion of legitime. The institution in the will not be annulled. There would be no intestacy.

Acain v. IAC - Constantino Acain filed with the RTC a petition for the probate of the will of the late Nemesio Acain. - In the said will, Nemesio instituted his brother Segundo as the heir. In case Segundo pre-deceased him, Segundo’s children (Constantino and his brothers & sisters) would

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SUCCESSION REVIEWER receive Nemesio’s share in the conjugal property of Nemesio and Rosa. - Segundo pre-deceased Nemesio. Now, the children of Segundo are claiming to be heirs of Nemesio. - Rosa (the widow) and Virginia Fernandez (a legally adopted daughter of Nemesio) opposed the probate. WON Rosa and Virginia were preterited. - As to the widow (Rosa), Art. 854 does not apply, although she is a compulsory heir. - Even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, as she is not in the direct line. - As to the adopted child (Virginia), there is preterition since she was totally omitted in the inheritance. - The Child and Youth Welfare Code gives an adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. - Since preterition annuls the institution of heir and no devises or legacies having been provided in the will, the probate of the will must be denied. An intestate settlement of the estate should proceed.

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Art. 854, NCC: The preterition or omission of compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Preterition consists in the omission in the testator’s will of the forced heirs because they were not mentioned therein, or though mentioned, they are neither instituted as heirs not are expressly disinherited.

Nuguid v. Nuguid

neither instituted as heirs nor are expressly disinherited." Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law."

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Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will 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", put 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.

ART. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.  Article is redundant and completely unnecessary of it is

made to apply to cases of preterition. If there is preterition, only Art854 need be applied.  Proper Application of Art855 – in cases where a compulsory heir is not preterited but left something [because not all the estate is disposed of by will] less than his legitime. Art855 really talks of a completion of legitime.

- Rosario Nuguid died, single without descendants but was survived by her legitimate parents and 6 legitimate siblings. - One of which was instituted as the universal heir and he filed an action for probate of the decedent’s will which was opposed by her parents on the ground that they were preterited and thus the institution of the universal heir is void.

 HOW TO FILL UP COMPULSORY HEIR’S IMPAIRED

Whether or not the will is void. - YES. SC held that it is because: The will completely omits the parents; thus, depriving them of their legitime. This is a clear case of preterition. - Petitioner herein was instituted as the universal heir and no specific legacies or bequests are provided for; hence, nullity of the will is complete. - Even if Art. 1854 provides that notwithstanding the annulment, the devises and legacies shall be valid insofar as they are not officious, the will is inexistent since there was no testamentary disposition separate from the nullified institution of the heir. Hence, intestate succession ensues. - This is a case of preterition and not disinheritance since the will does not expressly disinherits the forced heirs. It simply omits their names. - To consider the institution of an heir to be the same as legacy will defeat the purpose of Art. 854 on total or partial nullity.

 Superfluity and Inaccuracy of Art855 –

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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

LEGITIME?  From the portion of the estate left undisposed of by will.







From the shares of the testamentary heirs, legatees and devisees, proportionally. Superfluity – article, properly understood, does not apply to preterition but to completion of legitime, it is redundant, because the rules and manner of completing impaired legitimes are laid down with greater detail in Articles 906, 907, 909, 910 and 911. Inaccuracy – two inaccuracies 1. Coverage should extend not only to children and descendants but to all compulsory heirs. As subsequent articles [906, etc.] mandate, any compulsory heir whose legitime is impaired may demand that the same be fully satisfied. 2. Proportionate reductions [after consuming the undisposed portion] should be borne not by the compulsory heirs as such but by the testamentary heirs, including the devisees and legatees.

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SUCCESSION REVIEWER • To make the compulsory heirs qua compulsory heirs bear the reduction would mean reducing their own legitimes – a patent absurdity. • That would be solving one problem by creating another.

•



As correctly stated by Art907, it is testamentary dispositions that must be reduced if they impair or diminish the legitimes of compulsory heirs.

Senator Tolentino comments that article should be rephrased as follows The share of the compulsory heir omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other heirs given to them by will.

ART. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. 

Observations on the Article  Inaccurate and misleading because it suggests that there are exceptions to the rule that an heir, in case of predecease, incapacity or renunciation, transmits nothing to his own heirs. • This rule of non-transmission is ABSOLUTE and there is no exception to it.

Kind of Heir

PREDECEAS E TN R

TN

COMPUL -SORY VOLUNT ARY LEGAL





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

An heir, whether compulsory, voluntary or legal, transmits NOTHING to his heirs in case of predecease, incapacity, renunciation or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply.

 Outline of Rules

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DISINHE RITANCE TN R

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







NA

NA

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NA

NA

 





Cases for Articles 854-856 Rabadilla v. CA - Aleja Belleza, in a codicil appended to her Last Will and Testament, bequeathed a lot to Dr. Jorge Rabadilla subject to certain conditions: A.) That should Jorge die before the testator, the property shall be inherited by the latter’s spouse and children B.) That if the ownership of the property is finally transmitted to Jorge, he shall be liable to deliver until he dies 75 piculs of sugar a year to Maria Belleza while she is still alive. C.) That in case of Jorge’s death, his heirs shall also be imposed the same obligation.

D.) And

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-

 Rather, the complete statement of the rule is –





R

RENUNCIATIO N TN R

TN – Transmits nothing R - Representation

•

Representation does not constitute an exception because in representation the person represented does not transmit anything to his heirs. Representation is rather a form of subrogation. It says too much because the article is in the chapter on testamentary succession under institution of heir, therefore it should speak only of voluntary or testamentary heirs. It says too little because it does not mention legal or intestate heirs nor does it provide for cases of disinheritance.



INCAPACITY

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that if the heir shall later sell, lease, mortgage this said Lot, the buyer, lessee, mortgagee, shall have also the obligation to deliver yearly 100 piculs of sugar to Maria Belleza, provided that the buyer, lessor or mortgagor be near descendants and sister of the testator. The will also provided that in case the buyer, lessor or mortgagor fails to fulfill said obligations, Maria Belleza is entitled to forfeit the lots in favor of the testator’s descendants. Jorge Rabadilla died, and his spouse and children succeeded him. Now, Maria Belleza filed a complaint against Jorge’s heirs due to alleged violations of the Codicil and asked for the property to be reconveyed to the near descendants of Aleja Belleza on the ground that: A.) the lot was mortgaged to PNB, not a near descendant of the testator, B.) that the heirs failed to deliver the piculs of sugar beg. 1985, C.) that PNB also did not comply with the obligation to deliver 100 piculs of sugar/year. RTC dismissed the claim. On Appeal, the CA ruled that indeed the heirs violated the obligations imposed upon them and therefore the land should be seized and reconveyed to the estate of Aleja. However, they should file a separate proceeding to re-open the estate and have it distributed to Aleja’s heirs.

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SUCCESSION REVIEWER - Belleza Appealed. Whether or not the Article 882 of the CC on modal institutions govern the disposition rather than the provisions on institution through simple substitution. - The SC affirmed the decision of the Court of Appeals in applying Art 882 of the Civil Code. - The Court held that the disposition in question in favor of Jorge Rabadilla could neither be simple substitution or fideicommissary. - In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. - In the case under consideration, the provisions of subject Codicil do not provide for said 3 conditions. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants.

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It could not also be a fideicommissary because the element that the first heir is obliged to preserve and transmit the property to a second heir is not present.

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In this case, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Without the duty to preserve, there is no fideicommissary substitution.

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Also, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. In this case, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. The disposition was in the nature of modal institutions. Here, the testator imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. In conditional substitution however, the efficacy of the inheritance is subject to the condition. In case of doubt, the institution must be considered as modal and not institutional.

-

-

In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. - Elements in Fideicommissary Sub:

A)

the first heir is obliged to preserve and transmit the property to a second heir B) the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. - In modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.

Non v. CA - Deceased spouses Julian and Virginia Viado owned several properties, among them a house and lot located at Isarog St., La Loma, Quezon City; they had four children. - Leah Viado Jacobs and Nilo Viado both died in 1987, with Nilo leaving behind his wife, Alicia, and two children, herein respondents.

- The other two siblings, Rebecca Viado-Non and Delia Viado are the petitioners in this case. - As the two parties lived in the Isarog property, Alicia and her two children demanded Rebecca and Delia to vacate; Rebecca and Delia raised co-ownership as a defense.

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Alicia claimed absolute ownership as evinced by a deed of donation in which the late Julian Viado donated his conjugal share of the property to Alicia’s deceased husband.

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There was also a deed of extrajudicial settlement where Rebecca Viado-Non and the late Leah Viado (without Delia Viado’s participation) waived their rights and interests over their share of the property inherited from their mother Virginia. - Thus, the property was titled in the name of the heirs of Nilo Viado. - An action for partition was brought by Rebecca Viado-Non and Delia Viado in which the court ruled in favor of Alice and her children. Whether or not the deeds were valid despite allegations of fraud, forgery and undue influence. - YES, on account of the following:

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First, while asserting the employment of fraud, forgery and undue influence in procuring the signatures of the parties to the deeds of donation and of extrajudicial settlement, Rebecca Viado-Non and Delia Viado are vague on how and in what manner those supposed vices occurred.

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Second, there no proof shown as to why Julian Viado should be held incapable of exercising sufficient judgment in ceding his rights and interest over the property to Nilo Viado.

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Third, the fact alone that the two deeds were registered only five (5) years after their execution would not affect their validity or point to fraud.

Whether or not there was preterition in the deed of extrajudicial settlement with respect to the retardate Delia Viado. - YES. The exclusion of Delia Viado has the effect of preterition. - This kind of preterition, however, in the absence of fraud and bad faith, does not justify a collateral attack on the new title. - Article 1104 provides the remedy: where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. - Article 1104 provides: where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her.

SECTION 3 – SUBSTITUTION OF HEIRS Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. 

The definition of substitution is incomplete because it covers only simple substitution and excludes the fideicommissary. In the fideicommissary, the 2nd heir does not succeed in default, but AFTER the first.

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SUCCESSION REVIEWER  The complete definition of substitution should be –

“Substitution is the appointment of another heir so that he may enter into the inheritance in default of, or subsequent to, the heir originally substituted.”  With respect to Simple Substitution, this section is

   

properly a part of the next section on conditional testamentary dispositions. Simple substitution is really a form of conditional institution. The right to provide for substitutions is based on testamentary freedom. In simple substitutions, the testator simply makes a second choice, in case the first choice does not inherit. In fideicommissary substitutions, the testator imposes what is essentially a RESTRICTION OR BURDEN on the first heir, coupled with a selection of a subsequent recipient of the property.

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the there mentioned in the preceding paragraph, unless the testator has otherwise provided.  This article provides for SIMPLE or VULGAR

substitution.  CAUSES OF SIMPLE SUBSTITUTION

1. Predecease of the first heir 2. Renunciation of the first heir 3. Incapacity of the first heir  HOW TESTATOR MAY PROVIDE FOR SIMPLE

SUBSTITUTION WITH ALL 3 CAUSES 1. By specifying all 3 causes 2. By merely providing for a simple substitution

Art. 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary.

 Restricted Simple Substitution – the testator may limit

 Under the old Spanish Code, in addition to the 4

 QUESTIONS –

enumerated, there were pupilar and ejemplar substitutions under Arts. 775 and 776, providing that an ascendant or the parent may substitute the descendant below 14 years old in case the descendant should die before age 14; and that a substitute may be designated by an ascendant for a descendant who is over 14 but has been declared incompetent by reason of mental incapacity, but such substitution shall be ineffective by a will executed by the incompetent during a lucid interval or after he ahs recovered his mental faculties.

the operation of simple substitution by specifying only one or two of the 3 causes.  

 KINDS OF SUBSTITUTION UNDER ART858

1. 2. 3. 4.

Simple or Common [vulgar] – Art859 Brief or Compendious [brevilocua / compendiosa] – Art860 Reciprocal [reciproca] – Art861 Fideicommissary [fideicomisaria] – Art863

 In reality, there are only 2 kinds of substitutions – the

simple or common and the fideicommissary. These two are MUTUALLY EXCLUSIVE, a substitution must be one or the other and cannot be both at the same time.  Brief or compendious and reciprocal substitutions are merely variations of either the simple or fideicommissary.



May the testator provide for a substitution on grounds other than those provided in this article? In case of renunciation by the first heir, must the substitute have capacity at the time of the renunciation? Supposing the substitute dies before the first heir manifests his renunciation, may the successors of the substitute acquire the testamentary disposition? • Must have capacity – Art1034 par 3 providing that “If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.” As a simple substitution is a form of conditional substitution, therefore Art1034 can be applied. • Need not have capacity – Art1042 and 533 par2 which provides that the effects of the acceptance or repudiation of the inheritance shall always retroact to the moment of the death of the decedent” and that “one who validly renounces an inheritance is deemed never to have possessed the same.” Will the substitute be disqualified if the cause of the first heir’s predecease is that the substitute killed him?

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ART. 860. Two or more persons may be substituted for one; and one person for two or more heirs.  Brief

or Compendious substitution is a possible variation of either a simple or fideicommissary substitution.

 Distinctions

  

Brief – 2 or more substitutes for 1 original heir Compendious – 1 substitute for 2 or more orig. However, most commentators use the terms interchangeably.

 If 1 is substituted for 2 or more original heirs –



Effect of default of one but not all of the original heirs is that substitution will NOT take place but the share left vacant will accrue to the surviving original co-heir or co-heirs.



Substitution will take place only if ALL the original heirs are disqualified.



The exception is where the testator provides for substitution in the event of the death or renunciation or incapacity of any one of the original heirs.

ART. 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution.  Reciprocal substitution is a possible variation of the

simple or fideicommissary substitution.  If the heirs in a will are given unequal shares, and they

are reciprocal substitutes of each other, the substitute shall, in addition to his given share, acquire the share of the heir who he is substituting for due to predecease, renunciation or incapacity.  Example, A gets ¼ and B gets ¼. They are reciprocally substituted. If A predeceases the testator, B will substitute and get the share of A [¼] in addition to his share, so in total he gets ½.  The second sentence of Art861 provides for Proportionate Accrual. If there are more than 1 heir instituted, and they are reciprocally substituted, the substitutes will acquire the share of the original heir in the same proportion as they were given in the testamentary disposition.  Example, A gets ½, B gets 1/3 and C gets 1/6. If a predeceases the testator, B and C will acquire A’s

½ share in the proportion of 2:1 because their respective testamentary shares are ½ and 1/6. Should B predecease, A and C will get his portion in the proportion of 3:1 because their respective shares are ½ and 1/6. Should C predecease, A and B will get C’s 1/6 portion in the proportion of 3:2 for the same reason.

ART. 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless the testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted.  The substitute merely takes the place of the original

heir, so the former is also subjected to all the liabilities as well as rights of the latter, including charges and conditions imposed upon the original heir.

ART. 863. A fideicommisary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator.  First heir – fiduciary ; Second heir – fideicommissary  ELEMENTS OF FIDEICOMISARIA

1.

A 1st heir who takes the property upon the testator’s death • Fiduciary enters upon the inheritance, like every other heir, upon the opening of the succession, which is when the testator dies.

2.

A 2nd heir who takes the property subsequently from the fiduciary • The fideicommissary heir does not receive the property until the fiduciary’s right expires.

•

BOTH heirs enter into the inheritance, one after the other, each in his own turn. This distinguishes the fideicomisaria from the vulgar, in which the substitute inherits only if the first heir fails to inherit.

•

NOTE – though the fideicommissary heir does not receive the property upon the testator’s death, his right thereto VESTS at that time and merely becomes subject

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SUCCESSION REVIEWER to a period, and that right passes to his own heirs should he die before the fiduciary’s right expires.

3.

The 2nd heir must be 1 degree from the first heir • Means 2 things a) Only one transmission/transfer is allowed, from the first heir to the second heir b) Second heir must be in the first degree of relationship with the first heir. The second heir must either be a child or parent of the first heir

4.

Dual obligation imposed upon the 1st heir to: a) Preserve the property, and b) To transmit it after the lapse of the period to the fideicommissary heir.

•

• • •

•

This requisite is the essence of the fideicomisaria. This makes the position of the fiduciary basically that of a usufructuary, with the right to use and enjoy the property but WITHOUT JUS DISPONENDI. If there is no absolute obligation to preserve and transmit, there is no fideicommissary substitution. The institution is not necessarily void, it may be valid as some other disposition but it is not a fideicomisaria. In PCIB v. Escolin, the institution was held to be a simultaneous institution, a resolutory condition on the part of the husband while subject to a suspensive condition on the part of the brothers- and sisters-in-law and not a fideicomisaria because no obligation is imposed upon the husband to preserve the estate or any part thereof for anyone else. If the testator DID NOT specify a day when the fiduciary will deliver the property to the fideicomissary, or when the time of delivery is in doubt, it shall be understood to have been left to the fiduciary’s discretion, which means the delivery should be upon the FIDUCIARY’S DEATH. This is based on the presumption that the testator intended the fiduciary to enjoy the property during his lifetime.

5. Both heirs must be living and disqualified to succeed at the time of the testator’s death. • Living – according to Articles 40-41 Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. Art. 41. For civil purposes, the fetus is considered

1ST SEM 2006-2007 born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

• Qualified – according to Articles 10241034. Art. 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. Art. 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. Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other 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. Art. 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; (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; (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; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit. Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. Art. 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

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SUCCESSION REVIEWER denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. Art. 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. Art. 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. Art. 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; (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.

judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.

• NOTE – this 2-fold requirement is to be met only upon the testator’s death, and this applies not only to the fiduciary but to the second heir as well.

•

Thus, the 2nd heir need not survive the first heir, if the 2nd heir dies before the first heir, the 2nd heir’s own heirs merely take his place.

ART. 864. A fideicommissary substitution can never burden the legitime.  Legitime passes by strict operation of law, therefore the

testator has no power over it.

ART. 865. Every fideicommisary substitution must be expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise.  FIDEICOMISARIA SHOULD BE EXPRESSLY

IMPOSED.  2 ways of making an express imposition –

1. 2.

By imposing upon the first heir the absolute obligation to preserve and to transmit to the second heir.  Allowable Deductions

1. GR – fiduciary should deliver property INTACT and UNDIMINISHED to the fideicommissary heir upon the arrival of the period. 2. The only Deductions allowed, in the absence of a contrary provision in the will are – a) Legitimate expenses – only necessary and useful expenses and NOT ornamental expenses b) Credits c) Improvements - only necessary and useful improvements and NOT ornamental improvements

Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final

By the use of the term fideicommissary or



Damage or Deterioration to Property  If caused by a fortuitous event or ordinary wear and tear – fiduciary is not liable

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SUCCESSION REVIEWER 

If caused by fiduciary’s fault or negligence – fiduciary is liable.

ART. 866. The second heir shall acquire a right to the succession from the time of the testator’s death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs.  In

connection with Art863 on element of fideicommissary that both heirs must be living and disqualified to succeed at the time of the testator’s death.  The second heir’s right vests upon the testator’s death, conformably with Art777 and Art878 since as far as the second heir is concerned, the institution of him is one subject to a suspensive term.  Thus, the second heir does not have to survive the first heir in order for the substitution to be effective. The second heir’s own heirs simply take his place by succeeding to the vested right already possessed by the second heir.

ART. 867. The following shall not take effect: (1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863. (3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension; (4) Those which leave to a person the whole part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. 

Provisions that shall NOT TAKE EFFECT 1. Fideicommissary substitutions which are not made in an express manner • Lack of this element does not, by that fact alone, nullify the institution. It only means that the institution is not a fideicomisaria. 2. Perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863.

1ST SEM 2006-2007 • If there is a fideicomisaria, the limit is the first heir’s lifetime. • If there is no fideicomisaria, the limit is 20 years. 3. Imposes upon the heir the charge of paying a certain income or pension to various persons successively, beyond the limit prescribed in article 863 • There can only be 2 beneficiaries of the pension, one after the other, and the second must be one degree from the first. But there is no prohibition on simultaneous beneficiaries. 4. Leave to a person the whole part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. • The ostensible heir here is in reality only a dummy, because in reality, the person intended to be benefited is the one to whom the secret instructions refer. The purpose of such a surreptitious disposition is to circumvent some prohibition or disqualification • This paragraph makes the ENTIRE PROVISION VOID. The problem is the difficulty of establishing the fact of circumvention. Supposing the ostensible heir conceals or destroys the secret instructions and claims as heir under the testamentary provision as worded?

ART. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written.  If the fideicommissary substitution is void or ineffective,

the institution of the first heir simply becomes pure and unqualified.  Nullity or ineffectivity of the institution of the first heir – article does not provide for a case where it is the institution of the first heir that is void or ineffective. What is the rule in such a case?

ART. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he fives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply.  If the testator institutes successive usufructuaries, there

can only be two usufructuaries, one after the other, and

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SUCCESSION REVIEWER as to the two of them, all the requisites of Art863 must be present.

ART. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. If the testator imposes a longer period than 20 years, the prohibition is valid only for 20 years.  If there is a fideicommissary substitution, this time limitation will not apply. Rather, Art863 applies, which allows as a period, the lifetime of the first heir. 

KINDS OF SUBSTITUTIONS 1. SIMPLE or COMMON  Causes of Simple Substitution 1) Predecease of the first heir 2) Renunciation of the first heir 3) Incapacity of the first heir 2. BRIEF or COMPENDIOUS  Distinctions o Brief – 2 or more substitutes for 1 orig. heir o Compendious – 1 sub for 2 or more orig. o However, most commentators use the terms interchangeably.  If 1 is substituted for 2 or more original heirs, default of one but not all of the original heirs does not lead to substitution but the share left vacant will accrue to the surviving original co-heir or co-heirs. 3. RECIPROCAL  If the heirs in a will are given unequal shares, and they are reciprocal substitutes of each other, the substitute shall, in addition to his given share, acquire the share of the heir who he is substituting for due to predecease, renunciation or incapacity.  The second sentence of Art861 provides for Proportionate Accrual. If there are more than 1 heir instituted, and they are reciprocally substituted, the substitutes will acquire the share of the original heir in the same proportion as they were given in the testamentary disposition. 4. FIDEICOMMISSARY  Elements of a Fideicommissary

1)

A 1st heir who takes the property upon the testator’s death

2)

A 2nd heir who takes the property subsequently from the fiduciary

3)

The 2nd heir must be 1 degree from the first heir

4)

Dual obligation imposed upon the 1st heir to: a. Preserve the property, and b. To transmit it after the lapse of the period to the fideicommissary heir. 5) Both heirs must be living and disqualified to succeed at the time of the testator’s death.



Fideicommissary substitution should be

Cases for Articles 857-870 Ramirez v. Ramirez - Jose Eugenio Ramirez, a Filipino national, died in Spain on Dec. 11, 1964 with his only his widow as compulsory heir. - His will was admitted by the CFI and Maria Luisa Palacios was appointed administratrix of the estate. And she

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SUCCESSION REVIEWER submitted an inventory of the estate. (look at the case for the inventory) - The administratrix then submitted a project of partition. The property of the deceased shall be divided to two parts. - One part shall go to the widow as part of her legitime; the other part or free portion shall go to Jorge and Roberto Ramirez. Furthermore, 1/3 of the free portion is charged with the widow’s usufruct and the remaining 2/3 with a usufruct in favor of Wanda.

-

Jorge and Roberto opposed the project of partition saying that: (a) provisions for vulgar substitution in favor of Wanda with respect to the usufructs are invalid because the first heirs survived the testator; (b) the fideicommissary substitutions are also invalid because 1st heirs not related to second heirs within the 1st degree; (c) that the grant of the usufruct to Wanda violates the constitution. - Notwithstanding their objections, the lower court approved the project of partition. Hence this appeal. WON, the vulgar substitution in favor of Wanda in relation to the usufructs are void. - No. With respect to the vulgar substitution in favor of Wanda in relation to the usufructs, the said substitutions are not void. Although, Wanda survived the testator or stated differently because she did not predecease the testator, this does not avoid the substitution. - Dying before the testator is not the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance as provided in Art. 859. - Hence the vulgar substitution is valid. WON, the fideicommissary substitutions are valid. - No. With respect to the fideicommissary, the appellants were correct in their claim that is void. - The substitutes are not related to Wanda, the heir originally instituted. The Civil Code specifically provides that to be valid, the substitution should not go beyond one degree from the heir originally instituted. - Furthermore, there is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and 867. - In fact, the testator contradicts the establishment of a fideicommissary substitution when he permits the proper subject of the usufruct to be sold upon mutual agreement of the usufructuaries and naked owners. WON, the grant of the usufruct to Wanda is void under the constitution. - No. With respect to the usufruct in favor of Wanda, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution. In this case, no title vests upon Wanda. - A vulgar substitution of heirs is valid even if the heir designated survives the testator; inasmuch as vulgar substitution can take place also by refusal or incapacity to inherit of the first heir.

-

A fideicommissary substitution is void if first heir is not related in the 1st degree to the 2nd heir. - The constitutional provision which allows aliens to acquire lands by succession does not apply to testamentary succession. - An alien may be bestowed usufructuary rights over a parcel of land in the Philippines.

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Arañas v. Arañas - Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953. He had executed on June 6, 1946 his Last Will and Testament which was admitted to probate on August 31, 1956. - In said Last Will and Testament, Fr. Teodoro Aranas directed that certain properties acquired by him during his lifetime be given to his brothers Aniceto and Carmelo. - He likewise appointed as special administration of the remainder of the estate Vicente Aranas, a faithful and serviceable nephew, and designated him also as recipient of 1/2 of the produce of the properties (those parcels of land to be given to Fr. Aranas’ brothers) after deducting the expenses for the administration and the other 1/2 of the produce to be given to the Catholic Church for the eternal repose of the testator's soul. - Vicente’s right to enjoy the fruits of the property was to end upon his death or his refusal to act as administrator. - Herein Petitioners challenged the validity of the disposition, relying on Art. 870, which provides: “The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void.” Is the disposition in favor of Vicente valid? - YES. Vicente Aranas as a usufructuary has the right to enjoy the property of his uncle with all the benefits which result from the normal enjoyment (or exploitation) of another's property, with the obligation to return, at the designated time, either the same thing, or in special cases its equivalent. - This right of Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as there is a limitation namely his death or his refusal. Likewise his designation as administrator of these properties is limited by his refusal and/or death and therefore it does not run counter to Art. 870 of the Civil Code. - Be it noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits arising from the usufruct. Neither are the naked owners (the other heirs) of the properties, the usufruct of which has been given to Vicente prohibited from disposing of said naked ownership without prejudice of course to Vicente's continuing usufruct. - To void the designation of Vicente as usufructuary and/or administrator is to defeat the desire and the dying wish of the testator to reward him for his faithful and unselfish services rendered during the time when said testator was seriously ill or bed-ridden. - The proviso must be respected and be given effect until the death or until the refusal to act as such of the instituted usufructuary/administrator, after which period, the property can be properly disposed of, subject to the limitations provided in Art. 863 of the Civil Code concerning a fideicommissary substitution. - Article 863: "A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator."

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SUCCESSION REVIEWER

PCIB v. Escolin - Linnie Jane Hodges died in Iloilo leaving a will wherein she bequeathed all of her propertied to her husband, Charles Newton Hodges. - The will contained a disposition saying “at the death of my said husband, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situation to be equally dived among my brothers and sisters, share and share alike. - Charles was appointed executor, when he died Joe Hodges and Fernando Mirasol replaced him, which in turn was replaced by PCIB pursuant to an agreement of all the heirs of Hodges. - The Higdons, composed of brothers and sisters of Linnie now claims their share to her estate. - PCIB, however, contends that there was no substitution in this case and that the testamentary disposition in favor of the brothers and sisters are inoperative and invalid. Whether there is substitution. - None. There is no vulgar substitution because there is not provision in the will for either: 1. predecease of the testator by the designated heir, 2. refusal or 3. incapacity of the latter to accept the inheritance as required by art. 859. - There is neither a fideicommissary substitution because no obligation is imposed thereby upon Charles to preserve the estate or any part thereof for anyone else. Whether the disposition in favor of the brothers and sisters is inoperative - No. The brothers and sisters of Mrs. Hodges are not substitutes for Charles because, under her will, they are not to inherit what Hodges cannot, would no or may not inherit, but would inherit what he would not dispose of from his inheritance. - Therefore, they are also heirs instituted simultaneously with Charles, subject to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers and sisters-in-law. - Hence, while Charles could completely and absolutely dispose of her estate during his lifetime, all his rights to what may remain upon his death would then go his brothers and sisters-in-law. - If no obligation is imposed upon the first heir to preserve the property and to transmit it to the second heir, then there is no fideicomisaria.

SECTION 4 – CONDITIONAL TESTAMENTARY DISPOSITIONS AND TESTAMENTARY DISPOSITIONS WITH A TERM GENERAL PROVISIONS ART. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause.



3 KINDS OF TESTAMENTARY DISPOSITIONS 1. Conditional dispositions 2. Dispositions with a term 3. Dispositions with a mode [modal dispositions]

 Inaccuracies in Section heading and wording of this

article  Incomplete Section Heading – should include4 modal dispositions  Incomplete wording of Article – does not include dispositions with a term  Definitions



CONDITION – defined obliquely in Art1179 par1. Art. 1179. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, is demandable at once. Every obligation which contains a resolutory condition shall also be demandable, without prejudice to the effects of the happening of the event.



TERM – defined obliquely in Art1173 pars 1 & 3 Art. 1193. Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that day comes. Obligations with a resolutory period take effect at once, but terminate upon arrival of the day certain. A day certain is understood to be that which must necessarily come, although it may not be known when. If the uncertainty consists in whether the day will come or not, the obligation is conditional, and it shall be regulated by the rules of the preceding Section.



MODE – defined obliquely in Art882. Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided

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SUCCESSION REVIEWER that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.  Proper Order of Provisions in this Section

thereof which is not affected by the impossible or unlawful condition shall be valid. The condition not to do an impossible thing shall be considered as not having been agreed upon.  Reason for difference in rule



1. General provisions – Arts 871 and 872 2. Conditions – Arts 873, 874, 875, 876, 877, 883 par. 2, 879, 880, 881 and 884 3. Terms – Arts 878 and 885 4. Modes – Arts 882 and 883 par.1 GENERAL PROVISIONS  Art871 – The right of the testator to impose conditions, terms or modes springs from testamentary freedom. If he has the right to dispose of his estate mortis causa, then he has the right to make the disposition subject to a condition, term or mode.

ART. 872. The testator cannot impose any charge, condition or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.  The

legitime passes by strict operation of law, independent of the testator’s will. This article is a logical consequence of that principle.  This article is echoed by Art904 par2.



ART. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse or by the latter’s ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood.  Conditions prohibiting marriage

 

DISPOSITION WITH CONDITIONS – MAY BE BOTH RESOLUTORY OR SUSPENSIVE. ART. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide.

 The rule on Donations is the same. – considered as not

imposed  Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not imposed.  On the other hand, the rule in Obligations is different. –

annuls the obligation  Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part

If a first marriage is prohibited – condition always considered as not imposed If subsequent marriage is prohibited 1. If imposed by the deceased spouse or by his/her ascendants or descendants – valid 2. If imposed by anyone else – considered as not written

 The 2nd paragraph of the article may provide the

testator, if he so desires, a means of terminating the testamentary benefaction should the heir contract marriage, even a first one. The wording of the disposition will be crucial, it should not be so worded as to constitute a prohibition forbidden in the first paragraph.

 The impossible or illegal condition is simply considered

as not written. The testamentary disposition itself is not annulled; on the contrary it becomes PURE.

Testamentary dispositions and donations are both gratuitous and spring from the grantor’s liberality. The imposition of a condition does not displace liberality as the basis of the grant. On the other hand, in obligations which are onerous, the condition that is imposed becomes an integral part of the causa of the obligation. The elimination of that condition for being impossible or illegal results in a failure of cause.



Necessity of Caución Muciana – since this condition, assuming it is validly imposed, is NEGATIVE in nature, a Caución Muciana is required, as in Art879.

 Condition to contract marriage – This article does not

prohibit the imposition of a condition to marry, either with reference to a particular person or not.  Neither

does this article declare void a relative prohibition.

ART. 875. Any disposition made upon the condition that the heir shall make some

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SUCCESSION REVIEWER provision in favor of the latter of the testator or of any other person shall be void. 

2. Casual Condition – one that depends on the will of a third person or on chance 3. Mixed Condition – one that depends partly on the will of the heir/devisee/legatee and partly either on the will of a third person or chance.

Scriptura Captatoria – Legacy-hunting dispositions, whether to heirs or legatees, are void.

 Reasons for the Prohibition

1.

The captatoria converts testamentary grants into contractual transactions 2. It deprives the heir of testamentary freedom 3. It gives the testator the power to dispose mortis causa not only of his property but also of his heir’s.  What is declared void – it is not merely the condition

that is declared void but the testamentary disposition itself which contains the condition.

 RULES ON POTESTATIVE, CASUAL AND MIXED

CONDITIONS A. POTESTATIVE • Positive – to do something a) GR – must be fulfilled as soon as the heir learns of the testator’s death b) E – if the condition was already complied with at the time the heir learns of the testator’s death, and the condition is of such a nature that it cannot be fulfilled again. c) Constructive compliance – Art883 par2 – condition is deemed fulfilled. •

ART. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him a soon as he learns of the testator’s death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again. ART. 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. ART. 883, par. 2. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. ART. 879. If the potestative condition imposed upon the heir is negative or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests.  These articles govern POTESTATIVE, CASUAL and

MIXED conditions. 1. Potestative Conditions – one that depends solely on the will of the heir/devisee/legatee.

Negative – not to do something a) Heir must give security to guarantee [caucion muciana] the return of the value of the property, fruits, and interests, in case of contravention. b) 3 Instances when a Caucion Muciana is Required  Art879 – if the potestative conditions is negative

 Art885

par2 - The designation of the day or the time when the effects of the institution of an heir shall commence

 Art882

– When there is a statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him.

B.

CASUAL or MIXED • GR – may be fulfilled at any time, before or after the testator’s death, unless the testator provides otherwise. • QUALIFICATIONS – if already fulfilled at the time of the execution of the will a) If testator UNAWARE of fulfillment – deemed fulfilled b) If testator was AWARE of fulfillment  Can no longer be fulfilled again – deemed fulfilled  Can be fulfilled again – must be fulfilled again • Constructive Compliance - Art883 par2 a) If casual – not applicable b) If mixed  If dependent partly on chance – not applicable  If dependent partly on will of a third party

• If

interested applicable

3rd

party

–

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SUCCESSION REVIEWER • If not an interested party – not applicable

ART. 880. If the heir be instituted under a suspensive condition or term the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article.

ART. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of administration and the rights and obligations of the administrator shall be governed by the Rules of Court. 

Between the time of the testator’s death and the time of the fulfillment of the suspensive condition or of the certainty of its non-occurrence – property is to be placed under administration. 1. If condition happens – the property will be turned over to the instituted heir 2. If it becomes certain that condition will not happen – property will be turned over to a secondary heir [if there is one] or to the intestate heirs, as the case may be.

 Not applicable to institutions with a TERM – despite the

wording of the article, it should not be applied to institutions with a term, which are governed by Art885 par 2. Otherwise, there will be an irreconcilable conflict with that article, which mandates that before the arrival of the term, the property should be given to the legal heirs. nd

 2

paragraph – the property shall be in the executor’s or administrator’s custody until the heir furnishes the caucion muciana.

 Procedural

rules governing administrator – Rules 77-90 RoC.

appointment

of

ART. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section.  Suppletorily

governing conditional institutions Articles 1179 and 1192 on conditional obligations.

are

Art. 1179. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, is demandable at once. Every obligation which contains a resolutory condition shall also be demandable, without prejudice to the effects of the happening of the event. Art. 1180. When the debtor binds himself to pay when his means permit him to do so, the obligation shall be deemed to be one with a period, subject to the provisions of Article 1197. Art. 1181. In conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition. Art. 1182. When the fulfillment of the condition depends upon the sole will of the debtor, the conditional obligation shall be void. If it depends upon chance or upon the will of a third person, the obligation shall take effect in conformity with the provisions of this Code. Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by the impossible or unlawful condition shall be valid. The condition not to do an impossible thing shall be considered as not having been agreed upon. Art. 1184. The condition that some event happen at a determinate time shall extinguish the obligation as soon as the time expires or if it has become indubitable that the event will not take place. Art. 1185. The condition that some event will not happen at a determinate time shall render the obligation effective from the moment the time indicated has elapsed, or if it has become evident that the event cannot occur. If no time has been fixed, the condition shall be deemed fulfilled at such time as may have probably been contemplated, bearing in mind the nature of the obligation. Art. 1186. The condition shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment. Art. 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties, the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different. In obligations to do and not to do, the courts shall determine, in each case, the retroactive effect of the condition that has been complied with. Art. 1188. The creditor may, before the fulfillment of the condition, bring the appropriate actions for the preservation of his right.

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SUCCESSION REVIEWER The debtor may recover what during the same time he has paid by mistake in case of a suspensive condition. Art. 1189. When the conditions have been imposed with the intention of suspending the efficacy of an obligation to give, the following rules shall be observed in case of the improvement, loss or deterioration of the thing during the pendency of the condition: (1) If the thing is lost without the fault of the debtor, the obligation shall be extinguished; (2) If the thing is lost through the fault of the debtor, he shall be obliged to pay damages; it is understood that the thing is lost when it perishes, or goes out of commerce, or disappears in such a way that its existence is unknown or it cannot be recovered; (3) When the thing deteriorates without the fault of the debtor, the impairment is to be borne by the creditor; (4) If it deteriorates through the fault of the debtor, the creditor may choose between the rescission of the obligation and its fulfillment, with indemnity for damages in either case; (5) If the thing is improved by its nature, or by time, the improvement shall inure to the benefit of the creditor; (6) If it is improved at the expense of the debtor, he shall have no other right than that granted to the usufructuary. (1122) Art. 1190. When the conditions have for their purpose the extinguishment of an obligation to give, the parties, upon the fulfillment of said conditions, shall return to each other what they have received. In case of the loss, deterioration or improvement of the thing, the provisions which, with respect to the debtor, are laid down in the preceding article shall be applied to the party who is bound to return. As for the obligations to do and not to do, the provisions of the second paragraph of Article 1187 shall be observed as regards the effect of the extinguishment of the obligation. Art. 1191. The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him. The injured party may choose between the fulfillment and the rescission of the obligation, with the payment of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible. The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period. This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with Articles 1385 and 1388 and the Mortgage Law. Art. 1192. In case both parties have committed a breach of the obligation, the liability of the first infractor shall be equitably tempered by the courts. If it cannot be determined which of the parties first violated the contract, the same shall be deemed extinguished, and each shall bear his own damages.

DISPOSITION WITH TERMS

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ART. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term.  When the heir’s right vests – in dispositions with a term,

the heir’s right vests upon the testator’s death, conformably with Art777. Therefore, should the heir die before the arrival of the suspensive term, he merely transmits his right to his own heirs who can demand the property when the term arrives.  The rule in this article is similar to Art866 in fideicommissary substitutions.  The rule in conditional institutions – what is the rule if the instituted heir dies before the happening of the condition? The section is silent on this matter. But under Art1034, par3, “if the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered.  The import is that in conditional institutions, the heir should be Living and Qualified to succeed BOTH at the time of the testator’s death and at the time of the happening of the condition.

ART. 885. The designation of the day or the time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.  If term is Suspensive – before the arrival of the term,

the property should be delivered to the intestate heirs. A caucion muciana has to be posted by them. This is the 2nd instance where a caucion muciana is required to be posted.  If term is Resolutory – before the arrival of the term, the property should be delivered to the instituted heir. No caucion muciana is required.

DISPOSITION WITH MODES ART. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by

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SUCCESSION REVIEWER him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. 

The 1st paragraph defines a mode obliquely. A mode is an obligation imposed upon the heir, without suspending the effectivity of the institution [which a condition does].  A mode must be clearly imposed as an obligation in order to be considered as one. Mere preferences or wishes expressed by the testator are not modes.  A mode functions similarly to a resolutory condition. In fact, modes could very well have been absorbed by the concept of resolutory conditions.

 Caucion Muciana – should be posted by the instituted

heir [3rd instance of caucion muciana] CASE Rabadilla v. CA - In the codicil of Aleja Belleza, appended to her last will and testament, Dr. Jorge Rabanilla was instituted as a devisee of parcel of land. - The said codicil contained the following provisions: o That should Jorge die ahead of the testator, the property shall be inherited by the children and spouse; o That if ownership of the property is transmitted to Jorge, he shall have the obligation until he dies to give to Maria Belleza 75 piculs of export sugar and 25 piculs of domestic sugar until the said Maria dies; o That in case of Jorge’s death, his hears shall be imposed the same obligation; o That if the heir shall later sell, lease, mortgage the said lot, the buyer, lessee, mortgagee shall have also the obligation to deliver yearly 100 piculs of sugar to Maria; and o That should the buyer, lessee or the mortgagee fails to respect Aleja’s command, Maria shall immediately seize the lot and turn it over to Aleja’s near descendants and the latter shall have the same obligation of delivering 100 piculs of sugar to Maria. - For alleged violations of the codicil, Maria filed a complaint against Jorge’s heirs and asked for the property to be reconveyed to the near descendants of Aleja on that ground that: o the lot was mortgaged to PNB and Republic Planters Bank, not a near descendant of Aleja; o the heirs failed to deliver the sugar; and o the banks failed to comply with the obligation to deliver sugar to Maria. - The RTC dismissed the case. - On appeal, CA set aside the decision of RTC and ordered that the heirs of Jorge reconvey title over the lot with its fruits and interests.

- Hence, this appeal. Whether Article 882 applies in this case. (Petitioner maintains that Article 882 does not apply as there was no modal institution and the testatrix intended a mere simple substation – Jorge was to be substituted by Aleja’s near descendants should there be noncompliance with the obligation to deliver the sugar to Maria.) - YES. The SC held that the CA erred in not ruling that the institution of Jorge under the codicil is in the nature of a modal institution.

-

The codicil does not imply substitution. In simple substitutions, the 2nd heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. In this case, the provisions of the codicil do not provide that should Jorge default due to predecease, incapacity or renunciation, the testatrix’s near descendants would substitute him. What the codicil provides is that should Jorge or his heirs not fulfill the conditions imposed, the property shall be seized and turned over to Aleja’s near descendants. - In this case, Aleja did not make Jorge’s inheritance and the effectivity of his institution as a devisee dependent upon on the performace of the said obligation. - It is clear, though, that should the obligation be not complied with, the property shall be turned over to the Aleja’s near descendants.

-

The manner of institution of Jorge is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution.

-

Also, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not condition. - The SC affirmed the decision of the CA. - Articles 882 and 883 of the NCC.

-

The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or modal institution.

-

In a modal institution, the testator states: o the object of the institution; o the purpose or application of the property left by the testator; or o the charge imposed by the testator upon the heir.

-

A “mode” imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.

-

-

In a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extent, it is similar to a resolutory condition.

Since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not condition. - A will cannot be subject of a compromise agreement which would thereby defeat the very purpose of making a will.

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SUCCESSION REVIEWER Case for Arts 871-885

ART. 883 par1. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes.  The intention of the testator should always be the

guiding norm in determining the sufficiency of the analogous performance.

SECTION 5 – LEGITIME  System of Legitimes – our successional system, closely

patterned after that of the Spanish Code, reserves a portion of the net estate of the decedent in favor of certain heirs, or groups of heirs or combination of heirs.  The portion that is so reserved is called the LEGITIME.  The portion that is left available for testamentary disposition after the legitimes have been covered is the free or disposable portion.  The heirs for whom the law reserves a portion are called compulsory heirs.  Nature of Legitimes – the legitimes are set aside by

mandate of law. Thus, the testator is required to set aside or reserve them. Otherwise stated, the testator is prohibited from disposing by gratuitous title, either inter vivos or mortis causa, of these legitimes. Dispositions by onerous title are not prohibited because in theory, nothing is lost from the estate in an onerous disposition, since there is merely an exchange of values.  Because the testator is compelled to set aside the

legitimes, the heirs in whose favor the legitimes are set aside are called compulsory heirs. The compulsion is not on the part of the heirs, who are free to accept or reject the inheritance, but on the part of the testator.  Major changes in the law of legitimes

1. Abolition of the major or betterment in the Spanish Code 2. The surviving spouse’s share is upgraded from a usufructuary interest to full ownership, albeit a very variable share. 3. The grant of legitimary rights to children classified under the New Civil Code as illegitimate other than natural or spurious, and further change under the Family Code abolishing the distinction between natural and spurious children and giving all illegitimate children the same legitimary shares.

Miciano v. Brimo - The subject of this case is the partition of the estate of the late Joseph Brimo. - Miciano, the appointed judicial administrator, filed a partition scheme. - Andre Brimo, one of Joseph’s borthers, opposed stating that the partition was not in accordance with Turkish laws, Jospeh being a Turkish citizen. - Andre contends that this was void because the Civil Code states that legal and testamentary successions shall be governed by the national law of the person whose succession is in question. - Andre was excluded from as a legatee because of a clause in the will where Joseph wished that his property be distributed in accordance with Philippine laws, and any legatee who fails to comply with this would be prevented from receiving his legacy. - Since the institution of legatees was conditioned upon Joseph’s wish, it is claimed that Andre is excluded by questioning the validity of applying Philippine laws in the partition of the estate (which was against his brother’s wish). WON Andre Brimo can be validly excluded as a legatee. - NO. The condition imposed by the will of the testator is contrary to law because it ignores the testator’s national law, when according to the Civil Code, such national law of the testator is to govern his testamentary dispositions. - As such, the condition is considered unwritten and the institution of legatees in the will is unconditional and consequently valid and effective even as to Andre. - The remaining clauses of the will are valid despite the nullity of the clause stating that the testator’s testamentary dispositions be governed by Philippine laws. - Art. 792, (Old) Civil Code: Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.

ART. 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.  This article gives the statutory definition of legitime.

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children should share in the legitime. However, they will share EQUALLY regardless of age, sex or marriage of origin.

ART. 887. The following are compulsory heirs: 1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; 2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; 3) The widow or widower; 4) Acknowledged natural children, and natural children by legal fiction; 5) Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

2.



In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. 

LEGITIMATE PARENTS / ASCENDANTS 1. Legitimate Parents

2.



This article enumerates the compulsory heirs. The enumeration is EXCLUSIVE and may be classified as follows: 1. Primary compulsory heirs – legitimate children and / or descendants • So called because they are preferred over, and exclude the secondary heirs.

3.

Concurring compulsory heirs – surviving spouse; illegitimate children and / or descendants • So called because they succeed as compulsory heirs together with primary or secondary heirs, except only that illegitimate children / descendants exclude illegitimate parents.  THE COMPULSORY HEIRS



LEGITIMATE CHILDREN / DESCENDANTS 1. Legitimate Children – specified in Arts164 and 54 of the Family Code. Legitimated children fall under this classification [Art179 FC]. The law does not specify how the legitimate



Legitimate Ascendants – Only in default of parents. The rule – absolute in the ascending line – is that the nearer exclude the more remote. [Arts889-890]

SURVIVING SPOUSE 1. The spouse of the decedent, not the spouse of a child who has predeceased the decedent. 2. Marriage between the decedent and his/her surviving spouse must be either VALID or VOIDABLE. If voidable, there should have been no final decree of annulment at the time of the decedent’s death. • Question – if the consort dies during the pendency of a petition for declaration of nullity under Art36 or for nullity under Art40 of the FC, should the proceedings be dismissed or should they proceed? • Mere estrangement is not a ground for the disqualification of the surviving spouse as heir.

2.

Secondary compulsory heirs – legitimate parents and / or ascendants ; illegitimate parents • So called because they receive legitimes only in default of the primary heirs. • Legitimate parents/ascendants – only in default of legitimate children/ descendants. • Illegitimate parents – only in default of any kinds of children/descendants.

Legitimate Descendants – the GR is the nearer exclude the more remote. Thus, children, if all qualified, will exclude grandchildren and so on. The qualification to this rule is representation when proper.

•

Effect of Decree of Legal Separation a) On the offending spouse – disqualification b) On the innocent spouse - nothing

•

Death of either spouse during pendency of a petition for Legal Separation – Dismissal of the Case.

ILLEGITIMATE CHILDREN / DESCENDANTS 1. Illegitimate Children – Family Code has abolished the distinction between natural and spurious children and gives all of them – indiscriminately called illegitimate children – equal legitimary portions. However, pursuant to Art777, if death occurred before effectivity of the Family Code on August 3, 1988, the old distinctions will apply and the spurious child gets only 4/5 of the share of the natural child. [Art895]

2.

Illegitimate Descendants – Same rule applies as in the legitimate descending line, the nearer exclude the more remote, without prejudice to representation when proper. It should be noted that the illegitimate child can be represented by both legitimate and illegitimate descendants, as distinguished from the legitimate child, who can be

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represented only by legitimate descendants. [Art902 and 992]



ILLEGITIMATE PARENTS 1. Unlike the legitimate ascending line, which includes ascendants in whatever degree, the illegitimate ascending line only includes the parents, it does not go beyond the parents. 2. The illegitimate parents are secondary heirs of a lower category that legitimate parents, because the illegitimate parents are excluded by legitimate and illegitimate children [Art903] whereas legitimate parents are excluded only by legitimate children/ descendants.

 Variations in the Legitimary Portions



The legitimary system of the Philippine Code rests on a double foundation – EXCLUSION and CONCURRENCE.

 GENERAL RULE – there is a basic amount of ½ that is

given to one heir or one group of heirs. This General Rule admits only of 3 EXCEPTIONS: 1. Art894 – surviving spouse and illegitimate children 2. Art900 par2 – surviving spouse in a marriage in articulo mortis, with the conditions specified in that article 3. Art903 – surviving spouse and illegitimate parents.  The term “legitimate child” or “legitimate children”

includes a legally adopted child under Sec18 of RA8552 or the Domestic Adoption Act of 1998.  Question – Is an adopted child entitled to a legitime

from his biological parents or ascendants? Uncertain.  Art189[3] of the FC provides that the adopted shall remain an intestate heir of his parents and other blood relatives.  Thus, the adopted child was entitled to a legitime BOTH from his adopter and his biological parents.  But now, the law is silent and it neither gives nor denies an adopted child the right to a legitime from his biological parents.  Sec16 of the law provides that “all legal ties between the biological parents and the adoptee shall be severed” but that is unavailing to answer the question because sec16 only has to do with parental authority.  The term “legitimate child” or “legitimate children” shall,

in proper cases, include legitimate descendants other than children.  The term “legitimate parents” includes, in proper cases,

legitimate ascendants other than parents.

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DIFFERENT COMBINATIONS OF COMPULSORY HEIRS CODE LC

COMBINATION Legitimate Children Alone

SHARE ½ of estate divided equally [Art888]

CODAL PROVISION

NOTES

Art. 888. The legitime of legitimate children and descendants consists of onehalf of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.

Adopted Child has the same rights as LC If there is more than 1 legitimate child, the ½ of the estate shall be divided equally among them. If there are legitimate children and grandchildren, the nearer descendants exclude the farther, so as long as there are legitimate children, the grandchildren cannot inherit. If legitimate children PREDECEASE the testator or are INCAPACITATED to inherit, the grandchildren get their respective parents’ [the legitimate children] shares by virtue of REPRESENTATION. But if ALL the legitimate children RENOUNCE, the grandchildren inherit in their own right and the ½ estate is divided equally among them. But if only a few of the legitimate children RENOUNCE or not all renounce, the share of those who renounce accrue to the other legitimate children.

1LCSS

One Legitimate Child and Surviving Spouse

½ of the estate to the legitimate child ¼ of the estate to the surviving spouse [taken from the free disposable portion of the estate] [Art892 par1]

Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.

LCSS

Legitimate Children and Surviving Spouse

½ of estate to legitimate children Share equal to that of 1 child

Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary

LEGAL SEPARATION between the testator and the surviving spouse If there is a final decree of legal separation

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SUCCESSION REVIEWER for the surviving spouse [taken from the free disposable portion of the estate] [Art892par2]

LCIC

Legitimate Children and Illegitimate Children

½ of estate to the legitimate children ½ of the share of 1 legitimate child to the illegitimate children [Art176 FC]

CODE 1LCICSS

COMBINATION One legitimate child, illegitimate children and surviving spouse

SHARE ½ of estate to legitimate children Each illegitimate child will get ½ of the share of a legitimate child ¼ of estate to the surviving spouse, whose share is preferred over those of the illegitimate children, which shall be reduced if necessary [Art895]

LCICSS

Legitimate children, illegitimate children and surviving spouse

½ of estate to legitimate children Each illegitimate child will get ½ of the share of

estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.

1. surviving spouse is the innocent party – he/she gets her legitime [Art63 par4 FC] 2. surviving spouse is the offending spouse – he/she is disqualified from inheriting [Art63 par4 FC] If after the final decree of legal separation there was a reconciliation between the parties, the reciprocal right to succeed is restored because reconciliation sets aside the decree [Art66 par2 FC]

Illegitimate child only gets half the share of a legitimate child. In case total of the shares of all illegitimate children exceed the amount of the estate, their shares shall be reduced equally. The shares of the legitimate children cannot be reduced.

CODAL PROVISION

NOTES

Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.

In case total of the shares of all illegitimate children exceed the amount of the estate, their shares shall be reduced equally. The shares of the legitimate children and the surviving spouse cannot be reduced.

Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate

In case total of the shares of all illegitimate children exceed the amount of the estate, their shares shall be reduced equally. The shares of the legitimate children and the surviving spouse cannot be reduced.

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SUCCESSION REVIEWER one legitimate child A share equal to that of 1 legitimate child for the surviving spouse, whose share is preferred over those of the illegitimate children which shall be reduced if necessary. [Art895] ½ of estate [Art889]

child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. Art. 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants. The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.

There is NO RIGHT OF REPRESENTATION in the Ascending Line. If the one of the legitimate parents PREDECEASE or is INCAPACITATED to inherit, his/her share accrues to the other parent [tama ba?]

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

LP

Legitimate parents alone

LPIC

Legitimate parents and illegitimate children

½ of estate to legitimate parents ¼ of estate to illegitimate children

Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator.

LPSS

Legitimate parents and surviving spouse

½ of estate to legitimate parents ¼ of estate to surviving spouse

Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate.

CODE LPICSS

COMBINATION

Legitimate parents illegitimate children and surviving spouse

SHARE ½ of estate to the legitimate parents ¼ of estate to the illegitimate children 1/8 of estate to the

CODAL PROVISION

NOTES

Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

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SUCCESSION REVIEWER surviving spouse

SS

Surviving spouse alone

½ of the estate or 1/3 if the marriage, being in articulo mortis, falls under Art900 par 2 [Art900par1]

SSIC

Surviving spouse and illegitimate children

1/3 of estate to surviving spouse 1/3 of estate to illegitimate children

SSIP

Surviving spouse and illegitimate parents

¼ of estate to surviving spouse ¼ of estate to illegitimate parents [Art903]

IC

Illegitimate children alone

½ of estate [Art901]

IP

Illegitimate parents alone

½ of estate [Art903]

which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to onethird of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is onefourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

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SUCCESSION REVIEWER illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is onefourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate.

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SUCCESSION REVIEWER

CASE Baritua v. CA - The tricycle being driven by Bienvenido Nacario met an accident with a bus, driven by Edgar Bitancor and owned and operated by Jose Baritua. - The accident caused the death of Nacario. - No civil or criminal case was filed against the driver and Baritua. Instead, an extra-judicial settlement was entered into between Nacario’s spouse Alicia Baracena and the petitioners and the bus’ insurer (Philippine First Insurance Company). - In that settlement, the spouse was given P18,500 and in consideration for what she received, the widow executed an affidavit of desistance in filing any case against the petitioners. - A year after, the parents of Nacario filed a complaint for damages against the petitioners alleging that the petitioners promised to indemnify for the death of their son, the funeral expenses and the damages caused to the tricycle but instead the petitioners paid to the estranged wife. - The CFI ruled in favor of Baritua and the driver but the CA reversed the decision upon appeal. Hence, this petition. Whether or Not CA erred in ruling that the petitioners are still liable to pay to the Nacarios’ parents - SC held that this ruling is erroneous. - The Court recognized that payment is one of the recognized modes in extinguishing obligations.

-

-

-

According to Art 1240 of the CC, to effect extinguishment, payment must be made either to the person to whom the obligation is made, to his successors-in-interest, or to anyone authorized. It is clear under Article 887 that a surviving spouse and the legitimate children are the compulsory heirs of a decedent. As such, the petitioners correctly paid Alicia and her son, who are the successors-in-interest of Nacario. On the other hand, the parents of the deceased succeed only when the latter dies without any legitimate descendants. Since Nacario and Alicia begot a son, the legitimate ascendants are excluded from succession. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse. Legitimate ascendants succeed only in default of legitimate descendants whereas a spouse is a concurring heir and succeeds together with all classes of heirs. Mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse.

Rosales v. Rosales Rosales v. Rosales - Mrs. Petra Rosales died intestate. She was survived by her husband and her two children. Her son predeceased her but left a grandchild and his widow, who is the petitioner herein. - The trial court awarded ¼ each to the deceased husband, two daughters and grandchild. - Petitioner daughter-in-law now seeks reconsideration.

1ST SEM 2006- 2007 W/N a widow is an intestate heir of a mother-in-law. - SC held that no provision in the Civil Code states that a widow is an intestate heir of a mother-in-law since she does not inherit by right or by right of representation. W/N the decision of the TC is final as to the widow. - SC held that the decision is final because: - 1. The widow is considered a third person as regards the estate of the parent-in-law. - 2. The provision in Art. 887 refers to the estate of the deceased spouse in which case the surviving spouse is a compulsory heir. It does not apply to the estate of the parent-in-law - 3. Petitioner cannot assert the same rights as that of the grandchild because she has no filiation by blood with her mother-in-law. - 4. The right of the widow’s husband was extinguished at the time of his death; thus, grandchild succeeded from decedent by right of representation and not from his deceased father. - Art. 887 of the Civil Code: Intestate or legal heirs are classified into two groups namely those who inherit by their right and those who inherit by the right of representation. (Art. 981)

Lapuz v. Eufemio Note – under the Lapuz ruling, it does not matter who dies, whether it be the offending or innocent spouse.

De Aparicio v. Paraguya - Trinidad Motilde had a love affair with a priest, Fr. Felipe Lumain and in the process she conceived. - When Trinidad was almost four months and in order to conceal the affair, Trinidad decided to marry Anastacio MAmburao. - When Fr. Lumain died, he left a last will and testament wherein he acknowledged Consolacion as his daughter and instituted her as the sole and universal heir of all his property rights and interests. - Soon after reaching the age of majority, Consolacion filed an action for the recovery of certain parcels of land and for damages against Hipolito Paraguya. - Motilde claims that she has inherited these lands from her biological father. - During the trial, it was found that the subject of the action were the three parcels of land originally owned by the Parents of Fr. Lumain, the spouses Roman Lumain and and Filomena Cesare. - Paraguya claims ownership over the second parcel of land by virtue of a Pacto de retro sale executed by Roman Lumain and the former. - Paraguya also claimed another portion of the lands in question, described as portion G, which he said he bought from Pelagio Torrefranca. - Above all this, Paraguya also contended that Motilde had no right over the properties of Fr. Lumain. - He averred that by virtue of Art 255 of the Family Code, children born after 180days of the marriage are presumed to a legitimate child. - Paraguya further averred that the exceptions to the rule were not duly proved by Consolacion. - Finally, he contended that the acknowledgement by Fr. Lumain that Consolacion was his child cannot prevail over the said presumption of legitimacy.

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SUCCESSION REVIEWER

Whether or Not Paraguya is entitled to the lot subject to a right of repurchase

-

the tine, great grandchildren cannot inherit unless all the children and grandchildren renounce.

SC held that Paraguya is entitled to the 2nd parcel of land subject of the Pacto de retro sale. It is evident that the period to redeem the property, which is four years from the date of the contract, has already expired. - Paraguya is also entitled to the land described as section G with all the improvements thereon. - The evidence adduced shows that this Section is outside the land of Roman Lumain.

 The only qualification to the rule that the nearer exclude

Whether or Not Paraguya is entitled to the land described as Section G - SC held in the affirmative. - Paraguya questions the right of Consolacion over the properties of Fr. Lumain on the premise that she is the legitimate spouses of the mamburaos.

ART. 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants.

Whether or Not Consolacion is entitled to inherit from Fr. Lumain - The SC held that it is unnecessary to establish the paternity of Consolacion in this case. - This is because, in the Last Will and Testament of Fr. Lumain, he did not only acknowledge Consolacion as his daughter but also instituted her as his sole heir. - As Fr. Lumain died without no compulsory heir, Concolacion as the sole heir is entitled to all the properties of the former. - One who has no compulsory heir may dispose by will of all of his estate or any part of it in favor of any person having the capacity to succeed. - One who has no compulsory heir may dispose by will of all of his estate or any part of it in favor of any person having the capacity to succeed.

ART. 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor.

ARTICLES GOVERNING THE PARTICULAR COMBINATIONS

the more remote in the descending representation when proper [Arts970-977]

line

is

 There is no limit to the number of degrees in the

descending line that may be called to succeed, whether in their own right or by representation.

The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.

If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line.  Legitimate

ART. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.  Equal sharing – the legitimate children share the ½ in

equal parts, regardless of age, sec or marriage of origin. The provision should have been explicit about this. The counterpart provision in intestacy [Art979 par1 and Art980] is quite explicit on this.  Descendants other than children – the GR is that the

nearer exclude the more remote. Hence, grandchildren cannot inherit, since the children will bar the, unless all the children renounce, in which case the grandchildren become the nearest in degree. The rule goes on down

parents/ascendants as secondary compulsory heirs – the legitimate ascending line succeeds only in default of the legitimate descending line.

 3 BASIC RULES ON SUCCESSION IN THE

ASCENDING LINE 1. The nearer exclude the more remote. • This rule in the ascending line admits of no qualification, since there is no representation in the ascending line. [Art972 par1] 2. Division by line. • This rule will apply if there are more than one ascendant in the nearest degree. The legitime shall then be divided in equal parts between the paternal line and the maternal line. 3. Equal division within the line. • After the portion corresponding to the line has been assigned, there will be equal apportionment between or among the recipients within the line, should there be more than one.

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SUCCESSION REVIEWER

 Termination of Marriage by REAPPEARANCE of prior  Note – also, there is no right of representation in the

ascending line.  The operation of the principles of Division By Line and

Equal Division within the Line may cause inequality of shares among ascendants of identical degrees.  For example, if both legitimate parents of testator predecease him and testator has no other legitimate descendants, if there are 2 surviving maternal grandparents but only 1 surviving paternal grandparent – the ½ estate is divided equally between the maternal and paternal lines, but the 2 maternal grandparents must share the ¼ portion of the maternal line [they get 1/8 each] while the sole paternal grandparent gets the whole ¼ portion of the paternal line.

ART. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to onefourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants.

Spouse / Decree of ANNULMENT or ABSOLUTE NULLITY of marriage  Arts 41-43 of FC govern a subsequent marriage contracted by a party whose spouse has been absent for the specified period and lay down the requisites therefor.  The reappearance of the prior spouse TERMINATES the second marriage. One of the effects of the termination as given in Art43[5] is – “The spouse who contracted the subsequent marriage in BAD FAITH shall be disqualified to inherit from the innocent spouse by testate and intestate succession.  The implication of Art43 is that – 1. If both consorts in the second marriage were in GOOD FAITH, they continue to be heirs of each other. 2. If only one of said consorts acted in bad faith, the innocent one will continue by testate and intestate succession. 

PROBLEM – A and B are married. A disappears and is absent for the required period. B then contracts a second marriage with C, both in good faith. Out of nowhere, A reappears [surprise!], and so the marriage between B and C is terminated. Under Art43[5] the reciprocal right of succession between A and B as the original spouses remains. What if B dies? Can A and C inherit from him/her?



The same problem arises in cases of marriages judicially annulled or declared void ab initio, because of the provisions of Art50 par1 of the Family Code – “The effects provided for by paragraphs 2,3,4 and 5 of article 43 and by article 44 shall also apply in the proper cases to marriages which are void ab initio or annulled by final judgment under Articles 40 and 45.



The problem here will arise should either or both partners in the defective marriage remarry later.



Balane says that prescinding from the practical problem of having 2 husbands [or 2 wives] claiming the right to a legitime, the very principle underlying the rule is questionable – why should consorts of a terminated marriage, or an annulled one, or one declared void ab initio continue to be heirs of each other? The marriage – which forms the basis of the right of succession no longer exists.

In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.  1 LEGITIMATE CHILD / SURVIVING SPOUSE – the

sharing is ½ for the legitimate child and ¼ for the surviving spouse.  If there has been LEGAL SEPARATION between the

testator and the surviving spouse  If there is a final decree of legal separation 1. surviving spouse is the innocent party – he/she gets her legitime [Art63 par4 FC] 2. surviving spouse is the offending spouse – he/she is disqualified from inheriting [Art63 par4 FC]  If after the final decree of legal separation there was a reconciliation between the parties, the reciprocal right to succeed is restored because reconciliation sets aside the decree [Art66 par2 FC]  DEATH PENDENTE LITE – if either spouse dies during

the pendency of the proceedings for legal separation, the proceedings are TERMINATED and the surviving spouse inherits from the deceased spouse, no matter which spouse died.

 LEGITIMATE CHILDREN / SURVIVING SPOUSE –

The sharing is ½ for the children collectively and for the spouse, equivalent to that of each of the legitimate children or descendants.  Determination of surviving spouse’s share 1. As long as at least 1 of several children inherits in his own right, the determination of the share of the surviving spouse presents no problem. It will always be equivalent of one child’s share.

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SUCCESSION REVIEWER 2. But supposing ALL the children predecease or are disinherited or are unworthy to succeed? Since all the grandchildren would then inherit BY REPRESENTATION and therefore in different amounts, the practical solution will still be to give the spouse the share that each child would have gotten if qualified. 3. Supposing ALL the Children RENOUNCE, the grandchildren would inherit PER CAPITA or in their own right and therefore equally. Should the spouse’s share still be computed on the basis of the children’s share had they accepted? If so, then when will the word “or descendants” in the second paragraph of this article ever be operative?

ART. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate.  LEGITIMATE ASCENDANTS / SURVIVING SPOUSE

- the sharing is ½ for the ascendants collectively and ¼ for the surviving spouse.  For the parents or ascendants, the sharing will be in accordance with Articles 889-890. [Legitimate parents/ascendants as secondary compulsory heirs – the legitimate ascending line succeeds only in default of the legitimate descending line.]

• The legitime of the spurious child will only be 4/5 that of a natural child, according to the ratio established in Art895 par2. • This ratio of 5:4 among natural and spurious children should be observed in all cases under the Civil Code where they concur.

ART. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied.  This article has been pro tanto amended by Articles

163, 165 and 176 of the Family Code.

ART. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator.  ILEGITIMATE CHILDREN / SURVIVING SPOUSE –

the sharing is 1/3 for the illegitimate children or descendants collectively and 1/3 for the surviving spouse.  Sharing among illegitimate children

1. If the decedent died during the effectivity of the FAMILY CODE – the sharing will be equal, inasmuch as the Family Code has abolished the old distinction between natural and illegitimate children other than natural or spurious [Arts 163, 165 and 178 of FC] 2. If the decedent died BEFORE the effectivity of the Family Code, the old distinctions must be observed.

 ONE LEGITIMATE CHILD / ILLEGITIMATE

CHILDREN / SURVIVING SPOUSE – the sharing is ½ for the illegitimate child, ¼ for the surviving spouse, and ¼ for each illegitimate child. These sharings are based on Art.892 of NCC and Art176 of FC.  LEGITIMATE CHILDREN / ILLEGITIMATE CHILDREN

/ SURVIVING SPOUSE - the sharing is ½ for the legitimate children collectively, a share equal to that of one legitimate child for the surviving spouse, and ½ the share of one legitimate child for each illegitimate child.  SHARING PRIOR TO THE FAMILY CODE



If death occurred before the effectivity of the Family Code, this article will govern – consequently, should the natural and spurious children concur in the succession, each spurious child will get 4/5 the share of one natural child, and each natural child gets ½ the share of one legitimate child. Example • 5 legitimate children and total estate is 1M. ½ of estate [500,000] divided by 5 so 1 Legit child – 100,000 • Natural child – 50,000 • Spurious child – 40,000

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SUCCESSION REVIEWER 

Should there be no natural children but only spurious children, each spurious child will get 2/5 share of one legitimate child. • 1 legit child – 100,000 • No natural children • Spurious child – 40,000

 REDUCTION OF SHARES



Depending on the number of legitimate and illegitimate children, the possibility exists that the total legitimes will exceed the entire estate. Reductions, therefore will have to be made in accordance with the following rules – 1. The legitimes of the legitimate children should never be reduced, they are PRIMARY and PREFERRED compulsory heirs 2. The legitime of the surviving spouse should never be reduced, this article prohibits this. 3. The legitimes of the illegitimate children will be reduced pro rata and without preference among them.

ART. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator.

 The 2 articles are merely reiterations of the rules

already laid down in Articles 892 and 895 and need not be explained.

ART. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to onefourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate.  LEGITIMATE PARENTS / ILLEGITIMATE

CHILDREN / SURVIVING SPOUSE – the sharing is ½ for the legitimate parents collectively, ¼ for the illegitimate children collectively and 1/8 for the surviving spouse.  

 ILLEGITIMATE CHILDREN / LEGITIMATE PARENTS

the sharing is ½ for the legitimate parents collectively and ¼ for the illegitimate children collectively.  

For the parents or ascendants, the sharing will be in accordance with the rules laid down in Articles 889-890. For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

ART. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of.

For the parents or ascendants, the sharing will be in accordance with the rules laid down in Articles 889-890. For the illegitimate children or descendants, the sharing shall depend on whether death occurred before or during the effectivity of the Family Code.

ART. 900. If the only survivor is the widow or widower, she or he shall be entitled to onehalf of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph.  SURVIVING SPOUSE AS SOLE COMPULSORY HEIR

ART. 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article.

–

 

General rule – ½ of the estate Exception – 1/3 of the estate, if the following circumstances are present – a) The marriage was in articulo mortis b) The testator died within 3 months from the time of the marriage

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SUCCESSION REVIEWER c) The parties did not cohabit for more than 5 years, and d) The spouse who died was the party in articulo mortis at the time of the marriage. 

NOTE – the last requisite is not explicit in the article but can be derived from the sense and intent of the provision. The law does not regard such marriages with eager approval.

surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate.  ILLEGITIMATE PARENTS ALONE – they get ½ of the

estate. Note that in the illegitimate ascending line, the right DOES NOT go beyond the parents.

ART. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator.  ILLEGITIMATE CHILDREN ALONE – they get ½ of the

estate collectively. The sharing among the illegitimate children or descendants will depend on whether death occurred before or during the effectivity of the Family Code.

ART. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate.

 ILLEGITIMATE PARENTS / SURVIVING SPOUSE –

the sharing is ¼ for the parents collectively and ¼ for the spouse.  Illegitimate parents EXCLUDED by all kinds of children

– as secondary compulsory heirs, the illegitimate parents are inferior to legitimate parents. Whereas legitimate parents are excluded only by legitimate children, illegitimate parents are excluded by all kinds of children, legitimate or illegitimate.

 End of Midterms Coverage

 Right of representation to the legitimate and illegitimate

descendants of an illegitimate child.  Rule of Article 902 compared with Rule of Article 992 –

In the case of descendants of legitimate children, the right of representation is given only to legitimate descendants, by virtue of Art992.  The

net effect of all this is that the right of representation given to descendants of illegitimate children is BROADER than the right of representation given to descendants of legitimate children. Thus, an illegitimate child of a predeceased legitimate child cannot inherit by representation [Art992], while an illegitimate child of an illegitimate child can [Art902]. A classic instance of unintended consequence.

ART. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances & Ryan Quan  91

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SUCCESSION REVIEWER 3. Reversion Legal 4. Reversion Adoptiva • Purpose of the Reserva Troncal



The reserve troncal is a special rule designed primarily to assure the return of the reservable property to the 3rd degree relatives belonging to the line from which the property originally came, and to avoid its being dissipated by the relatives of the inheriting ascendant [the reservista].  Also to avoid the danger that property existing for many years in a family’s patrimony might pass gratuitously to outsiders through the accident of marriage and untimely death.

RESERVA TRONCAL

Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. • The Reserva Troncal Origin

Reservista

By Gratuitous Title

Reservatarios (Relative w/in 3rd degree of Prepositus)

• PROCESS – 3 Transmissions Involved 1. First Transfer – by gratuitous title, from a person to his descendant, brother or sister. 2. Second Transfer – by operation of law, from the transferee in the first transfer [prepositus] to another ascendant [reservista]. It is this second transfer that creates the reserva. 3. Third Transfer – from the transferee in the second transfer [reservista] to the relatives within the 3rd degree of the Prepositus, coming from the line of the Origin.



If there are only two transmissions, there is no reserva [Gonzales v CFI]

By Operation of Law

Prepositus



The Prepositus inherits a piece of land from his father, the Origin. Subsequently, the Prepositus dies intestate, single and without issue, and the land is in turn inherited by his mother, the Reservista. The Reservista is then required to reserve the property in favor of the Prepositus’ paternal relatives within the 3rd degree (Reservatarios). • Reservas and Reversiones in the Spanish Code 1. Reserva Viudal 2. Reserva Troncal

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SUCCESSION REVIEWER

o He is either the ascendant or a brother or sister

REQUISITES OF RESERVA TRONCAL

of the Prepositus.

o Ascendant from any degree of ascent. o Brother/Sister – 2 Schools of Thought

1.

That the property was acquired by a descendant [prepositus] from an ascendant or from a brother or sister [origin] by gratuitous title.

a) Relationship must be of HALF BLOOD – because otherwise the property would not change lines. This means that if the relationship is Full Blood, there is no reserve because then it would not be possible to identify the line of origin. b) It does not matter whether the fraternal relationship is of the full or halfblood. In either case, a reserve may arise. Since the law makes no distinction, we should not make one.

o The

term descendant should read person because if the grantor is a brother or sister, the one acquiring obviously is not a descendant. o Acquisition is by gratuitous title when the recipient does not give anything in return. It encompasses transmissions by donation or by succession of whatever kind.

2.

That said descendant [prepositus] died without an issue.

2.

o Should read – “that said person died without

PREPOSITUS o He is either the descendant or a brother/ sister of the Origin who receives the property from the Origin by gratuitous title. Thus, in the scheme of the reserva troncal, he is the FIRST transferee of the property. o While the property is still with the Prepositus, there is yet NO RESERVA. The reserva arises only upon the second transfer. o Consequently, while the property is owned by the Prepositus, he has all the rights of ownership over it and may exercise such rights in order to prevent a reserva from arising. He can do this by – a) Substituting or alienating the property b) Bequeathing or devising it either to the potential reservista or to 3rd persons [subject to constraints of the legitime] c) Partitioning in such a way as to assign the property to parties other than the potential reservista [again subject to the constraints of the legitime].

legitimate issue, because only legitimate descendants will prevent the property from being inherited by the legitimate ascending line by operation of law.

3.

That the property is inherited by another ascendant [reservista] by operation of law; and o Transmission by operation of law is limited by succession, either to the legitime or by intestacy.

4.

That there are relatives within the 3rd degree belonging to the line from which said property came [reservatarios].

o In this sense, the Prepositus is deemed the Arbiter of the Reserva Troncal.

3. • 2 BASIC RULES I. No inquiry is to be made beyond the Origin/ Mediate Source. It does not matter who the owner of the property was before it was acquired by the Origin. II. All the relationships among the parties must be legitimate. The provisions of Art891 only apply to legitimate relatives. • 4 PARTIES TO THE RESERVA TRONCAL

1.

ORIGIN MEDIATE SOURCE

OR

THE

RESERVISTA [RESERVOR] o He is an ascendant of the Prepositus, of whatever degree. The Reservista must be an ascendant other than the Origin/ Mediate Source [if the latter is also an ascendant]. o The law is clear - it refers to the Origin/ Mediate Source as another ascendant. If these two parties are the same person, there would be no reserva troncal. o Should the Origin/Mediate Source and the Reservista belong to Different Lines? - Example: A receives by donation a parcel of land from his paternal grandfather X. Upon A’s death, the parcel passes by intestacy to his father Y [X’s son]. The

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SUCCESSION REVIEWER property never left the line, is Y obliged to reserve? - One View – NO, because another ascendant is one belonging to a line other than that of the reservista. - Another View – YES, because [1] the law makes no distinction, and [2] the purpose of the reserve is not only curative but also preventive, i.e. to prevent the property from leaving the line.

4.

RESERVATARIOS [RESERVEES] o The reserva is in favor of a class, collectively referred to as the Reservatarios [reservees]. o REQUIREMENTS TO BE A RESERVATARIO:

1)

He must be within the 3rd degree of consanguinity from the Prepositus. 2) He must belong to the line from which the property came. This is determined by the Origin/Mediate Source. - If an ascendant, the Mediate Source is either of the paternal or maternal line. - If a half-brother or half-sister, the same is true. - If however, it is a brother or sister of the full blood, it would not be possible to distinguish the lines. - To those who hold the opinion that a reserva would not exist in such case of full blood siblings, Manresa’s comment should be the norm: “that the question of line would be indifferent.” o Question – must the Reservatario also be related to the Mediate Source? - Manresa says NO, the article speaks solely of 2 lines, the paternal and the maternal of the descendant, without regard to subdivisions. - Sanchez Roman says YES, otherwise results would arise completely contrary to the purpose of this reserva, which is to prevent the property from passing to persons not of the line of origin.

o Reserva in favor of reservatarios as a CLASS to be qualified as a reservatario, is it necessary that one must already be LIVING when the prepositus dies? - NO, because the reserva is established in favor of a GROUP or CLASS, the relatives within the 3rd degree, and not in favor of specific individuals. - As long, therefore, as the reservatario is alive at the time of the reservarista’s death, he qualifies as such, even if he was

conceived and born after the Prepositus’ death. o Preference Among the Reservatarios

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Upon death of the ascendant reservista, the reservable property should pass, not to all the reservatorios as a class, but only to those NEAREST in degree to the descendant [prepositus], excluding those reservatarios of more remote degree. [Padura v. Baldovino] - In other words, the reserve troncal merely determines the group of relatives [reservatarios] to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession, since Art891 does not specify otherwise. - Thus, according to the Padura ruling, which subjects the choice of reservatarios to the rules of intestate succession, those reservatarios nearer in degree of relationship to the Prepositus will exclude those more remotely related. o Representation Among the Reservatarios - As in intestate succession, the rule of preference of degree among reservatarios is qualified by the rule of representation. - The right of representation cannot be alleged when the one claiming the same as a reservatario of the reservable property is not among the relatives within the 3rd degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in Art811 is in the highest degree personal and for the exclusive benefit of designated persons who are the relatives withint the 3rd degree of the person from whm the reservable property came. Therefore, relatives of the 4th degree and the succeeding degrees can never be considered as reservatarios since the law does not recognize them as such. - Nevertheless, there is a right of representation on the part of the reservatarios who are within the 3rd degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants [fathers and mothers] who are the brothers of the said deceased person and relatives within the 3rd degree in accordance with Art811. [Florentino v. Florentino] - Actually, there will only be 1 instance of representation among the reservatarios, which is in case of the Prepositus being survived by brothers/sisters and children of

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SUCCESSION REVIEWER a predeceased or incapacitated brother or sister.

• Juridical Nature of Reserva Troncal

 The juridical nature of the reserve troncal may be viewed from 2 aspects – from that of the reservista and that of the reservatarios. 2. Juridical Nature from the viewpoint of the RESERVATARIOS - The nature of the reservatarios’ right is, Manresa says, that “during the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the 3rd degree, after the right that in their turn may pertain to them has been assured, have only an EXPECTATION and therefore they do not even have the capacity to transmit that expectation to their heirs.” - The relatives within the 3rd degree in whose favor the right is reserved cannot dispose of the property, first because it is in no way, either actually, constructively or formally, in their possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them will they take their place in the succession of the descendant of whom they are relatives within the 3rd degree, that is to say, a second contingent place in said legitimate succession in the fashion of aspirants to a possible future legacy. [Edroso v. Sablan] - The reserva instituted by law instituted by law in favor of the heirs within the 3rd degree belonging to the line from which the reservable property came, constitutes a REAL RIGHT which the reserve may alienate and dispose of, albeit conditionally, the CONDITION being that the alienation shall transfer ownership to the vendee only if an when the reserve survives the person obliged to reserve. [Sienes v. Esparcia]

1.

Juridical Nature from the viewpoint of the RESERVISTA - Manresa says that “the ascendant is in the first place a USUFRUCTUARY who should use and enjoy the things according to their nature, in the manner and form already set forth in the Code referring to use and usufruct.” - But since in addition to being the usufructuary, he is, even though CONDITIONALLY, the owner in fee simple of property, he CAN DISPOSE of it in the manner provided in Articles 974 and 976 of the Code. - The conclusion is that the person required by Art811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, the LEGAL TITLE and DOMINION, although under a CONDITION subsequent [whether or not there exist at the time of his death relatives within the 3rd degree of the descendant from whom they inherit in the line whence the property proceeds]. - Clearly, he has, under an express provision of law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition, reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do. [Edroso v Sablan]



From Edroso, the following may be derived: A. The reservista’s right over the reserved property is one of ownership. B. The ownership is subject to a RESOLUTORY CONDITION, i.e. the existence of reservatorias at the time of the reservista’s death. C. The right of ownership is alienable, but subject to the same resolutory condition. D. The reservista’s right of ownership is registerable.



From Sienes, the following may

be derived:

A.

The reservatarios have a right of expectancy over the property. B. The right is subject to a SUSPENSIVE CONDITION, i.e. the expectancy ripens into ownership if the reservatarios survive the reservista. C. The right is alienable, but subject to the same suspensive condition. D. The right is registerable.

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SUCCESSION REVIEWER

 Florentino v. Florentino also held that the reservista has NO POWER to appoint, by will, which specific individual of the reservatarios were to get the reserved property. [As also held in Gonzales v. CFI].



The reservees do not inherit from the reservoir but from the PREPOSITUS, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor. [Padura v. Baldovino as cited in Gonzales v. CFI]

 The rule in this jurisdiction, therefore, is that upon the reservista’s death, the property passes by strict operation of law [according to the rules of intestate succession, as held in Padura], to the proper reservatarios. Thus, the selection of which reservatarios will get the property is made by law and not by the reservista. • The Property Reserved



Any kind of property is reservable. A sugar quota allotment, as incorporeal property, was held to be reservable in Rodriguez v. Rodriguez. 

Effect of Substitution o The very same property must go through the process of transmissions, in order for the reserva to arise. Thus, the same property must come from the Mediate Source, to the Prepositus by gratuitous title, and to the reservista by operation of law. o If the prepositus substitutes the property by selling, bartering or exchanging it, the substitute cannot be reserved. o Note that while the property is with the Prepositus, there is yet no reserva, which commences when the property id received by the reservista. o Consequently, the Prepositus has, over the property, plenary powers of ownership, and he may exercise these powers to thwart the potential reserva. The Prepositus is the arbiter of the reserva.



QUESTION – would there be a reserva if the Prepositus sold the property under pacto de retro and then redeemed it?  Reserved Property Does Not Form Part of the Reservista’s Estate Upon his Death o The contention that an intestacy proceeding is still necessary rests upon the assumption that the reservatario will succeed in, or inherit, the

reservable property from the reservista. This is not true. The reservatario is not the reservista’s successor mortis causa nor is the reservable property part of the reservista’s estate; the reservatario receives the property as a conditional heir of the Prepositus, said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista’s lifetime. o It is a consequence of these principles that upon the death of the reservista, the reservatario nearest to the prepositus becomes, automatically and by operation of law, the owner of the reservable property. As already stated, that property is no part of the estate of the reservista, and does not even answer for the debts of the latter. Hence, its acquisition by the reservatario may be entered in the property records without necessity of estate proceedings, since the basic requisites therefor appear of record. [Cano v. Director] o Of course, where the registration decree merely specifies the reservable character of the property, without determining the identity of the reservatario or where several reservatarios dispute the property among themselves, further proceedings are unavoidable.

o As

a consequence of the rule laid down in Cano, since the reserved property is not computed as part of the reservista’s estate, it is not taken into account in determining the legitimes of the reservista’s compulsory heirs.

 RESERVA MAXIMA – RESERVA MINIMA o Problem: if 2 circumstances occur - The prepositus makes a will instituting the ascendant-reservista to the whole or a part of the free portion, and - There is left in the Prepositus’ estate, upon his death, in addition to the reserved property, property not reservable. o 2 Theories have been Advanced - Reserva Maxima – as much of the potentially reservable property as possible must be deemed included in the part that passes by operation of law. This “maximizes” the scope of the reserva. - Reserva Minima – every single property in the Prepositus’ estate must be deemed to pass, partly by will and partly by operation of law, in the same proportion that the part given by will bears to the part not so given. o Reserva Minima is more widely accepted. • Rights and Obligations

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SUCCESSION REVIEWER  There are no specific implementing articles on the reserva troncal.

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

Under the Old Code, the provisions viudal were extended to the troncal, thus the rights of the reservatarios and the corresponding obligations of the reservista were: a. To inventory the reserved properties b. To annotate the reservable character [if registered immovables] in the Registry of Property within 90 days from acceptance by the reservista. c. To appraise the immovables d. To secure by means of mortgage: [i] the indemnity for any deterioration of or damage to the property occasioned by the reservista’s fault or negligence, and [ii] the payment of the value of such reserved movables as may have been alienated by the reservista onerously or gratuitously.  The abolition of the reserva viudal has caused some uncertainty whether these requirements still apply.

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

It was held in Sumaya v. IAC that the requirement of annotation remains, despite the abolition of reserva viudal, as based on Sec51 of PD1529 providing for conveyance and other dealings by registered owners.



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Sumaya is however, silent on 2

points: 1. Within what period must the annotation be made, and 2. Whether the other requirements of the old viudal also remain. • Extinguishment of the Reserva Troncal  The reserve troncal is extinguished by: 1. Death of the Reservista 2. Death of ALL the Reservatarios 3. Renunciation by ALL the Reservatarios, provided that no other reservatario is born subsequently 4. Total fortuitous loss of the reserved property 5. Confusion or merger of rights, as when the reservatarios acquire the reservista’s right by a contract inter vivos 6. Prescription or adverse possession CASES Gonzales v. CFI

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This is an appeal by Beatriz Gonzales from the decision of the CFI of Manila for dismissing her complaint for partition, accounting, reconveyance, damages, and holding as not subject to reserva troncal, the properties which her mother inherited in 1943 from Filomena. Benito Legarda y De la paz, the son of Benito Legarda y Tuason died in 1933 and was survived by widow Filomena and their seven children. In 1939, real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters and the heirs of the deceased son who were represented by Benito Legarda. Mrs. Legarda then executed in 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other six children. Then in 1953, Mrs. Legarda executed two handwritten identical documents wherein she disposed of the properties which she inherited from her daughter, in favor of the children of her sons. Then from the period of 1958 to 1959, Mrs. Legarda and her children partitioned the properties consisting of the onethird share in the estate of Benito Legarda y Tuason which the children inherited in representation of their father, Benito Legarda y De la Paz. On 1967, Mrs. Legarda died and on 1968 her holographic will was admitted to probate. During such proceeding, Beatriz Gonzales filed a motion to exclude from the inventory of her mother’s estate the properties which she inherited from her deceased daughter, Filomena on the ground that such properties are reservable properties which should be inherited by Filomena Legarda’s three sisters and three brothers and not by the children of Benito, Alejandro and Jose. This was opposed by the administrator. She then filed an ordinary civil action for the purpose of securing a declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her will. This was dismissed. Hence this appeal.

WON, the properties in question are subject to reserve troncal under Article 891 of the Civil Code. - Yes, the properties in the instant case were reservable properties in the hands of Mrs. Legarda. Undoubtedly she was a reservoir. - The reservation became a certainty when at the time of her death the reserves or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda. WON, Mrs. Legarda as reservor can convey the reservable properties by will or mortis causa to the reserves within the 3 rd degree to the exclusion of the reserves in the 2nd degree, her daughters and sons. - No, she cannot convey these as they never really formed part of her estate. - The reservor cannot make a disposition morits causa of the reservable properties as long as the reserves survived the reservoir. - The nearest relatives should be the one who will inherit the property and Mrs. Legarda could not choose to whom the

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SUCCESSION REVIEWER

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reservable property should be given and deprive the other reservees of their share therein. Ignoring the second degree reservees would be a glaring violation of Article 891. Hence, the reservable properties should go to Mrs. Legarda’s children and not to the grandchildren. In reserva troncal,l (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation of law from the said descendant, and (3) the said descendant should reserve the said property for the benefit of relative who are within the third degree from the deceased descendant and who belong to the line from which the said property came. Three transmissions are involved. Reserva contemplates legitimate relationship

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Solivio v. CA - As Esteban’s parents died while he was still young, Salustia and her sister, Celedonia brought up Esteban, Jr. Salustia, Esteban’s mother, brought to her marriage paraphernal properties, but no conjugal property was acquired during her short-lived marriage to Esteban, Sr. - Salustia died, leaving all her properties to her only child, Esteban, Jr., - Esteban died of a heart attack. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr. - Celedonia told Concordia about Esteban's desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. - The probate court declared Celdonia as sole heir of the estate of Esteban. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA. DE JAVELLANA FOUNDATION". - Four months later, Concordia filed a motion for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. Whether the decedent's properties were subject to reserva troncal in favor of Celedonia, his relative within the third degree on his mother's side from whom he had inherited them; - NO. Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. - Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mother's side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or a brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891. - Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving

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spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code. (see Doctrine portion) Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate 'without distinction of line or preference among them by reason of relationship by the whole blood,' and is entitled to one-half (1/2) share and share alike of the estate. As regards Concordia’a ½ share--inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia. she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother. The persons involved in reserva troncal are: "1. The person obliged to reserve is the reservor (reservista) — the ascendant who inherits by operation of law property from his descendants. "2. The persons for whom the property is reserved are the reservees (reservatorios) — relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came. "3. The propositus — the descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law. "ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. "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."

Nieva v. Alcala - Juliana Nieva married Francisco Deocampo and with whom she begot a son named Alfeo Deocampo. Juliana died intestate and her son Alfeo inherited from her several parcels of land. However, Alfeo died intestate and without issue, so the aforementioned parcels of land passed to his father Francisco. Francisco subsequently married Manuela Alcala, with whom he had a son, Jose Deocampo. When Francisco died, his widow and his son took possession of the said lands. - Segunda Maria Nieva sought to recover the parcels of land in question, as she is the acknowledged natural daughter of Juliana. According to her birth records, Juliana gave birth to her and lived with her before Juliana’s marriage to Francisco. Segunda was treated and publicly exhibited as Juliana’s legitimate daughter. Whether or not the law on reserva troncal applies to illegitimate relatives. No. While there are no previous cases on the subject, the Court thought it proper to adopt the writings of Manresa and Scaevola on the matter.

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SUCCESSION REVIEWER - While the provision of law does not make a distinction, it has to be recognized that this is so because the legitimate relationship forms the general rule and the natural relationship the exception; which is the reason why, the law in many articles, speaks only of children or parents, or ascendants and descendants, and in them reference is of course made to those who are legitimate; and when it desires to make a provision applicable only to natural relationship, it does not say father or mother, but natural father or natural mother; it does not speak of ascendants, brothers or parents but of natural ascendants, natural brothers or natural parents. Thus, as the law does not qualify, the general rule applies that it only refers to legitimate ascendants. - The provision on reserva troncal treats of legitimate relationship. The person obliged to reserve is a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family, and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established. Remember: the object is to protect the patrimony of the legitimate family.

Padura v. Baldovino

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Agustin Padura contracted 2 marriages during his lifetime. With his first wife, Gervacia, he had one child whom they named Manuel Padura. Wih his second wife, Benita, he had two children named Fortunator and Candelaria Padura Baldovino.

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Upon his death, the properties were left among his children and surviving spouse, Benita. - Fortunato was adjudicated 4 parcels of land. - Fortunato died unmarried without having executed a will. Thus, the parcels of land were inherited exclusively by his mother, Benita.

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She applied for and later was issued a TCT in her name, but subject to the condition that the properties were reservable in favor of relatives within the 3rd degree belonging to the line from which said property came. - Candelaria died leaving as her only heirs her four legitimate children, - Years later, Manuel also died. Surviving him are his legitimate children.

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Upon the death of Benita (the reservista), appellants and appellees took possession of the reservable properties. In a resolution of the CFI, the legitimate children of the deceased Manuel and Candelaria were declared to be the rightful reserves and as such, entitled to the reservable properties. The instant petitioner filed by the heirs of Candelaria seeks to have this properties partitioned, such that ½ of the same be adjudicated to them, and the other half to the appellees, allegedly on the basis that they inherited by right of representation from their respective parents, the original reserves. On the other hand, appellees maintained that they should all (the eleven reservees) be deemed as inheriting in their own right, under which, they claim each should have an equal share. The lower court declared all the reservees (without distinction) co-owners, pro-indiviso, in equal shares of the parcels of land.”

In a case of reserve troncal where the only reserves surviving the reservista and belonging to the line of origin, are nephews of the descendants but some are nephews for the half blood and the otheres are nephews of the whole blood, should the reserved properties be apportioned among them equally or should the nephews of the whole blood take a share twice as large as that of the nephews of the half blood? - The SC held that the reserves nephews of the whole blood are entitled to s share twice as large that of the others. - The stated purpose of the reserva is accomplished once the property has devolved to the specified relatives of the line of origin. But from this time on, there is no further occasion for its application. - In the relations between one reservatorio and another of the same degree, there is no call for applying Art. 891 any longer. Thus, the respective share of each in the reversionary property should be governed by the ordinary rules of intestate succession.

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Upon the death of the ascendant reservista, the reservable property should pass, not to all reservatorios as a class, but only to those nearest in degree to the descendant (prepositus), excluding those reservatorios of the more remote degree.

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The reserva troncal merely determines the group of relatives (reservatorios) to whom the property should be returned; but within that group the individual right to the property should be decided by the applicable rules of ordinary intestate succession. - Reservatorios nearer in degree of relationship to Prepositus will exclude those more remotely related.

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Proximity of degree and right of representation are basic principles of ordinary intestate succession; so is the rule that whole blood bothers and nephews are entitled to a share double that of brothers and nephews of half blood. If in determining the rights of the reservatorios inter se, proximity of degree and the right of representation of nephews are made to apply, the rule double share for immediate collaterals, of the whole blood should likewise be operative.

Florentino v. Florentino - Apolonio II married Antonia with whom he has 9 children (Encarnacion, et. al. – the plaintiffs in this case). Antonia died. - Apolonio II again married. This time with Severina and had 2 children, Mercedes and Apolonio III, the latter being born after the father’s death. - The father left a will instituting all his children from both marriages and Severina as the universal heirs. - Apolonio III died ahead of his mother and the latter succeeded to all the son’s property. Upon the death of Severina, Mercedes succeeded her and the property she received included those which her mother received from Apolonio III. - The plaintiffs (which include the children of the deceased brothers and sisters of Encarnacion who inherit by virtue of their right to representation) now claim that the property

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SUCCESSION REVIEWER received by Severina from her son was reservable property and thus, they are each entitled to 1/7 of the fruits of the reservable property. - Defendants demurred claiming that the object of the law is to avoid the transfer of the reservable property to those extraneous to the family of the owner. They claim that since the property was transferred to Mercedes (who was part of the family), the object of the law has not been violated and thus the property has lost its reservable character.

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WON the property was reservable. - YES. Even if Severina left in her will said property, together with her own, to her only daughter and forced heiress, Mercedes, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by operation of law) to his legitimate mother and ascendant, Severina. - Severina was duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the relatives, within the third degree, of the line from which such property came.

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As to the children of the brothers and sisters of Encarnacion, SC held that there is right of representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree. - If this property was in fact clothed with the character and condition of reservable property when Severina inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only the right of usufruct or of fiduciary with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter, Mercedes. - According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same for certain designated persons who, on the death of the said ascendants reservists acquire the ownership of said property

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Said property reverts to said line as long as the aforementioned persons who, from the death of the ascendant-reservists, acquire in fact the right of reservatarios (person for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came. - Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista) in which case said reservable property losses such character.

Edroso v. Sablan Sienes v. Esparcia

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Lot 3368 originally belonged to Saturnino Yaeso. Saturnino had four children with his first wife Teresa Ruales- Agaton, Fernando, Paulina and Cipriana. Saturnino also had a second wife, Andrea Gutang, with whom he had an only son named Francisco. When Saturnino died, Francisco inherited the western portion of Lot 3368. hence, it was accordingly transferred in the name of Francisco. After reaching the age of 20, still being single, Francisco died with no other heir except his mother Andrea. Andrea, then executed an extra-judicial settlement and sale, where he sold the land to appellants. Thus, the vendees demanded from Paulina Yaeso the surrender of the OCT covering the said land, but the latter refused. Subsequently, Cipriana and Paulina Yaeso, the surviving half-sisters of Francisco, declared the property in their name and executed a deed of sale in favor of the spouses Fidel Esparcia and Paulina Sienes. The spouses procured a TCT over the land in their name. Andrea Gutang died in December 1951 while being survived by Cipriano Yaeso.

Whether or not there was Reserva Troncal SC held that there is Reserva Tronacal. It is clear from the facts that Francisco Yaeso inherited by operation of law from his father Saturnino. Upon Francisco’s death, unmarried and without descendants, Andrea Gutang as the sole heir inherited the land from the former. Hence she is under obligation to reserve it for the benefit of relatives within the third degree belonging to the line from which said property came. Whether or Not the Spouses Esparcia are entitle to the land sold to them by Cipriana yaeso As between the transfer made by Andrea Gutang and the transfer made by Cipriana, the latter is the only one deemed valid and binding. First, although Andrea Gutang inherited the land, she only inherits it as a reservista. She therefore has the obligation to preserve the property for the reservatorios or reservees. In this case, these are the half-sisters of Francisco. Second, the transferee in the sale made by Andrea only acquires the latter’s revocable and conditional owenership of the property. Hence, if Andrea dies and she is survived by the reservees, title pass to the latter by operation of law. Cipriana, having survived Gutang, now obtains exclusive ownership over the land and the sale made by Gutang is of no legal effect. Third, Cipriana as the reservee, had the right to alienate the property even before Gutang’s death. In which case, the sale becomes absolute if the reservee survives the reservista. The sale therefore made by Cipriana and Pualina is deemed effective. However, in so much as the Esparcia spouses did not appeal the decision reverting the property in the estate of Cipriano, they can not recover the same. - The reserved property is subject to two suspensive conditions: a) death of the ascendant obliged to reserve, b) the survival, at the time of death, or relatives within the third degree belong to the line from which the property came. - The reservatorios have a right of expectancy over the property. The expectancy ripens into ownership if the reservatorios survive the reservists.

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SUCCESSION REVIEWER - The right is alienable but subject to the same suspensive condition. The right is registrable.

Cano v. Director -

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In a Land Registration case, a final decree and title over a parcel of land was adjudicated in favor of Maria Cano, subject to Reserva Troncal in favor of Eustaqia Guerrero. It appears from the stipulation of facts in the registration case that the subject lot was acquired by Maria Cano from her deceased daughter, who in turn inherited the same from her father Evaristo Guerrero. Hence, falling squarely under Art 891. It was found that Eustaquia Guerrero was of the nearest kin of Evaristo, hence the former excludes all other relatives. Thereafter the counsel of Eustaqia fileda motion with the Cadastral Court alleging the death of maria Cano, the reservista,a nd hat the Oct therefore be cancelled and a new one issued in favor of Eustaqia Guerrero. Despite opposition, the lower court granted the petition for the new issuance of a new certificate. The oppositors, heirs of Maria Cano, insisted that the ownership of the reservatorio requires a separate judicial administration proceeding (intestestate proceeding), where there will be first a declaration that the elements of reserve troncal are existing.

Whether or not a separate judicial proceeding is required There is no need for a separate intestate proceeding. First, the stipulation of facts in the registration proceedings already manifests the existence of reserve troncal infavor of Esuataqia. The proceeding being final, the oppositors are barred from questioning the existence thereof. The contention that there is a need for a separate proceeding rests upon the assumption that the reservatorio will succeed or inherit the reserved property from the reservista, which is not the case.

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Upon the death of the reservista, the reservatario becomes, automatically and by operation of law, the owner of the reserved property. The property is no part of the estate of the reservista, hence its acquisition by the reservatario may be entered in the property records without the necessity of estate proceedings. - The reserved property is not part of the reservista’s estate and the reservatario acquires the property automatically and by operation of law.

De Papa v. Camacho - Defendant Camacho and Plaintiffs are legitimate relatives, plaintiffs being the grandaunt and granduncles of the defendant. - They have a common ancestor the late Balbino Tioco, father of the plaintiffs and great grandfather of defendant. - Romana Tioco, the sister of Balbino gratuitously donated to the legitimate sister of plaintiffs 4 parcels of land. - And that sister died intestate in 1915, survived by her husband and 2 legit children and leaving the four parcels of land as the inheritance of her said 2 children in equal pro indiviso shares.

- That Balbino died intestate surivived by his legit children by his wife and legit grandchildren. - In the partition of his estate, 3 parcels of land were adjudicated as the inheritance of the late Toribia Tioco, but as she had predeceased her father, the 3 parcels of land devolved upon her 2 legit children one of which is Faustino Dizon. - Faustino then died intestate leaving his ½ share in the 7 parcels of land to his father Eustacio subject to reserve troncal. - Trinidad Dizon-Tongko died intestate and her rights and interests in the parcels of land were inherited by her only child, Dalisay Camacho. - Eustacio then died survived only by his only legit descendant , the child mentioned above. - Dalisay now owns ½ of all the 7 parcles of land. She now also claims the other half the said parcels of land by virtue of the reserve troncal upon the death of Faustino Dizon. - The lower court declared the plaintiffs Francisco Tioco, Manuel Tioco and Nicolas Tioco as well as Dalisay Camacho, entitled as reservatorios, to one-half of the seven parcels of land in dispute. - Hence this appeal. WON, all relatives of the praepositus within the 3rd degree in the appropriate line succeed without distinction to the reservable property upon the death of the reservista - Yes, they succeed without distinction. And the rules on intestacy shall govern as held in a previous decision by this Court. - Nephews and nieces of whole blood were each entitled to a share double that of each of the nephews and nieces of half blood in accordance with the Civil Code. - Reserva merely determines the group of relatives to whom the property should be returned; but within that group, the individual right to the property should be decided by the applicable rules of ordinary intestate succession since Art. 891 does not specify otherwise. - Reversion of the reservable property being governed by the rules on intestate succession, the plaintiffs-appelless must be held without any right thereto because, as aunts and uncles, respectively of Faustino Dizon, they are excluded from the succession by his niece, the defendant-appellant, although they are related to him within the same degree as the latter. - Had the property been passed directly, there is no doubt that they would have been excluded by the defendantsappellees under the rules of intestate succession. There is no reason why a different rule would apply in this case. - The Defendant-appellee Dalisay Camacho is entitled to the entirety of the reversionary property to the exclusion of the plaintiffs-appellees. - Lower court judgment is reversed and the complaint is dismissed. - In reserva troncal, the successional rights of the relatives of the praepositus within the 3rd degree are determined by, and subject to the rules of intestate succession; so as to exclude uncles and aunts of the descendant from the reservable property by his niece or nephew.

Frias v. CFA -

In the first marriage of Jose Frias Chua with Patricia S. Militar, he sired three children, namely: Ignacio, Lorenzo and Manuel. When Militar died, Jose contracted a second

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SUCCESSION REVIEWER marriage with Consolacion de la Torre with whom he had a child by the name of Juanito. Manuel died without leaving any issue. Then Jose died intestate leaving his widow Consolacion and his son Juanito, Ignacio, and Lorenzo. In the Intestate Proceeding, the court issued an orderadjudicating, among others, the one-half (1/2) portion of Lot No. 399 and the sum of P8,000.00 in favor of Consolacion, the other half in favor of Juanito, P3,000.00 in favor of Lorenzo; and P1,550.00 in favor of Ignacio. Juanito died intestate without any issue. After his death, is mother Consolacion succeeded to his pro-indiviso share of her son Juanito. Consolacion then died intestate leaving no direct heir either in the descending or ascending line except her brother and sisters. In the "Intestate Estate of Consolacion de la Torre", the petitioners herein, Ignacio, and Dominador and Remedios Chua, the supposed legitimate children of the deceased Lorenzo filed the complaint praying that the onehalf (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias Chua but which passed to Consolacion, be declared as reservable property for the reason that the lot in question was subject to reserva troncal pursuant to Article 981 of the New Civil The CFI rendered a decision dismissing the complaint of petitioners. According to it, the property in question was not acquired by Consolacion and Juanito gratuitously but for a consideration, namely, that the legatees were to pay the interest and cost and other fees resulting from Civil Case No. 5300 to Standard Oil Co. of New York the amount of P3,971.20 Whether the property in question as acquired by Juanito Frias Chua from his father, Jose Frias Chua, gratuitously or not. - It is evident from the record that the transmission of the property in question to Juanito upon the death of his father Jose was by means of a hereditary succession and therefore gratuitous. - The obligation of paying the Standard is imposed upon Consolacion and Juanito not personally by the deceased Jose in his last will and testament but by an order of the court. As long as the transmission of the property to the heirs is free from any condition imposed by the deceased himself and the property is given out of pure generosity, it is gratuitous. The order of the court does not change the gratuitous nature of the transmission of the property to him. As far as the deceased Jose is concerned the transmission of the property to his heirs is gratuitous. This being the case the lot in question is subject to reserva troncal under Art. 891 of the New Civil Code. In order that a property may be impressed with a reservable character the following requisites must exist, to wit: (1) that the property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous title; (2) that said descendant died without an issue: (3) that the property is inherited by another ascendant by operation of law; and (4) that there are relatives within the third degree belonging to the line from which said property came. - The transmission is gratuitous or by gratuitous title when the recipient does not give anything in return It matters not whether the property transmitted be or be not subject to any prior charges; what is essential is that the transmission be made gratuitously, or by an act of mere liberality of the person making it, without imposing any obligation on the part of the recipient; and that the person receiving the property gives or does nothing in return; the essential thing

is that the person who transmits it does so gratuitously, from pure generosity, without requiring from the transferee any prestation.

De Los Reyes v. Paterno The subject properties were the conjugal property of Tomas G. Del Rosario and his wife, Juana Reyes. Juana died and her daughter Concepcion was declared to be her sole heir. However, Concepcion died at the age of 9 and all her rights to the half of the property passed to her father, Tomas, who was then already the owner of the other half. Tomas registered the properties and after a year his title thereto became absolute and complete. After 6 years, plaintiff in this case seeks to recover one half of the subject properties, on the basis of reserva troncal. -

Whether or not the plaintiff may still recover the property after the lapse of one year from the finality of the registration proceedings on the ground of reserve troncal. No. The reservable right may be lost to the holder when he fails or neglects to oppose the registration of the land in which such right exists under the Torrens System. - Unless a reservable right is protected during the pendency of the action for the registration of land, or within the allowable period to contest such as prescribed by law, such right is lost forever.

Sumaya v. IAC - Raul Balantakbo inherited 1/3 interest in a parcel of land from his father (1st property) and a 1/7 interest in 10 parcels of lands from his maternal grandmother (2nd property). - Raul died intestate, single, and leaving only his mother, Consuelo, as his sole surviving heir to the real properties. - Subsequently, Consuelo adjudicated unto herself the said properties by way of an affidavit. - Consuelo sold the first property to Sumaya. Sumaya sold it Villa Honorio which transferred and assigned it in favor of Agro-Industrial. - The documents were registered in the RD of Laguan and corresponding certificates of titles were issued.

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Consuelo later sold the 2nd property to Villa Honorio which later transferred and assigned the same to Laguna AgroIndustrial. - The parties admit that the certificates of titles covering these properties do not contain any annotation of its reservable character.

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When Consuelo died, the brothers in full blood of Raul and the surviving children of another brother of Raul filed a case to recover the properties which they claimed were subject to reserva troncal in their favor. - The trial court ordered the petitioners to return the parcels of land the plaintiffs and to account and pay for the produces from the said properties. - The CA affirmed the decision. - Hence, this petition. Whether the defendants were innocent purchasers for value. - NO. The fact remains that the affidavit of self-adjudication executed by Consuelo stating the source of the properties

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SUCCESSION REVIEWER

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thereby showing the reservable nature thereof was registered with the RD of Laguna. This is sufficient notice to the whole world. It was clearly stated in the affidavit that the properties were inherited by Raul from his father and maternal grandmother respectively. In this case, the affidavit executed by Conseulo which contained a statement that the property was inherited from a descendant, Raul, which has likewise inherited by the latter from another descendant, was registered with the RD. The failure of the RD to annotate the reservable character of the property in the certificate of title cannot be attributed to Consuelo. Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable character of the properties before they bought the same from Consuelo. Moreover, the court found that the the partiers were long time acquaintances. They knew all along that the properties litigated in this case were inherited by Raul from his father and from his maternal grandmother and that Consuelo inherited these from his son Raul.

Whether the cause of action of private respondents has prescribed. - No. The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo but upon the death of the reservor Consuelo. The reserva is extinguished upon the death of the reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. - When a conveyance has been properly recorded, such record is constructive notice of its contents and all interests, legal and equitable, included therein. - Under the rule of notice, it is presumed that the purchaser has examined every instrument of record affecting the title. Such presumption is irrebutable.

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Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also. - The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned."

- Jose married Marcelina and had one child who died before Jose. - Mariano left a will dividing his property between Santiago and Jose, giving the latter 11 parcels of land. Upon Jose’s death, he named his wife Marcelina as his only heir. - When Jose’s will was going to be probated, Marcelina and Maria (the mother) entered into a contract where they divided the property left by Jose between themselves. - Maria later sold parcels 1-6, 10 and 11 to Marcelina, who later sold them to Pablo Rocha. Pablo later returned parcels 1-6 to Maria saying that they were erroneously included in the sale made by Maria to Marcelina. - Magin (the daughter of Santiago) is now claiming that she and her sister Consolacion had a share in the 11 parcels passed on to Marcelina by Jose. WON the 11 parcels were reservable properties. - YES. The 11 parcels of land were acquired by Jose by lucrative title from his father Mariano and that after the death of Jose, they passed on to Maria by operation of law.

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Magin and Consolacion were the nearest relatives within the 3rd degree of the line from which the property came. Maria was ordered to acknowledge the right of Magin and Consolacion to the reservation of the parcels of land, which was to be recorded in the RD. As to Marcelina and Pablo, they could not have acquired a better title than that held by Maria Corral and if the latter's title was limited by the reservation and the obligation to note it in the registry of deeds. Pablo was also ordered to register parcels 10 and 11 as reservable property in the RD since he knew that the property was reservable. He was a legatee in the will. For purposes of reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court. The reservoir is bound to register the reservation within 90 days from the date of adjudication of the property to the heirs by the court. Where a reservable property is sold by the reservoir, without having registered its reservable character, the obligation to register the same is transferred to the purchaser, if the latter knew of the reservable character of the property.

Rioso v. Rocha - Maria was married to Mariano. They had 3 children, Santiago, Jose, Severina. Severina died during infancy. - Santiago (now deceased) was married to Francisca and had 2 children, Magin and Consolacion.

Art.

904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law.

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SUCCESSION REVIEWER Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. • As already laid down in Art886, the legitime is not within the testator’s control. It passes to the compulsory heirs by strict operation of law. • Testator Devoid of Power to Deprive Compulsory Heirs of Legitime  It is the law, not the testator, which determines the transmission of the legitimes. Consequently, it is not within the testator’s power to deprive the compulsory heirs of their legitime.

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EXCEPTION – the only instance in which the law allows the testator to deprive the compulsory heirs of their legitimes is DISINHERITANCE under Arts915-923, the grounds being set forth under Arts919-921. • Testator Devoid of Power to Impose Burdens on Legitime  As also reiterated in Art872, the testator cannot impair the legitime, as a consequence of the principle that the legitime passes by strict operation of law.

• EXCEPTIONS

– When the Law grants the Testator Some Power over the Legitime 1. Article 1080 par2 – “A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or 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.” 2.

Article 1083 par1 – “Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed 20 years as provided in article 494. This power of the testator to prohibit division applies to the legitime.” • Restrictions on Legitime Imposed by Law A. Article 159, Family Code “The Family Home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home.” B.

The Reserva Troncal

Art. 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. • Reason for the Rule  Before the predecessor’s death, the heir’s right is simply inchoate. • Duty to Collate  Any property which the compulsory heir may have gratuitously received from his predecessor by virtue of the renunciation or compromise will be considered an advance on his legitime and must be duly credited.

• Scope of Prohibition  This article applies only to transactions of compromise or renunciation between the predecessor and the prospective compulsory heir. • QUESTION – Is a transaction between the prospective compulsory heir and another prospective compulsory heir, or between a prospective compulsory heir and a stranger, interdicted?  YES under Article 1347 par2: “No contract may be entered into upon future inheritance except in cases expressly provided by law.”

Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. • RIGHT OF COMPLETION OF LEGITIME

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This rule applies transmissions by gratuitous title.

only

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• Cross-References, related articles  Art855 – if the title by which the testator transmitted property is intestate succession Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.

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In relation to Arts909 and 910

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SUCCESSION REVIEWER

• The

principle underlying this rule on completion of legitime is that anything that a compulsory heir receives by gratuitous title from the predecessor is considered an advance on legitime and is deducted therefrom  EXCEPTIONS 1. Art1062 – if the predecessor gave the compulsory heir a donation inter vivos and provided that it was not to be charged against the legitime. 2. Art1063 – testamentary dispositions made by the predecessor to the compulsory heir, unless the testator provides that it should be considered part of the legitime.

Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. • Based on the same principle as art904. If the testamentary dispositions exceed the disposable portion, the compulsory heirs may demand their reduction to the extent hat the legitimes have been impaired. To allow the testator to make testamentary dispositions that impair the legitime would in effect allow him to deprive the compulsory heirs of part of their legitime – an act which is prohibited by Art904. • This article should be read together with Art911.

Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. • The NET HEREDITARY ESTATE  Articles 888-903 set forth the legitimes of the compulsory heirs, either inheriting alone or in various combinations. Those articles gave the legitimes in the form of fractions, or proportions of the decedent’s estate.  This article makes possible the computation of the absolute amounts of the legitimes by laying down the manner of computing the net value of the estate [the net hereditary estate], on which the proportions are based.

MANNER OF COMPUTING THE HEREDITARY ESTATE 1.

Inventory all the Existing Assets a) This will involve appraisal/valuation of the existing assets at the time of the decedent’s death b) These assets include only those properties that survive the decedent, i.e. those which are not extinguished by his death [in relation to articles 774 and 777]. c) The value determined by this inventory will constitute the GROSS ASSETS.

2.

Deduct Unpaid Debts and Charges a) All unpaid obligations of the decedent should be deducted from the gross assets. b) Only those obligations with monetary value which are not extinguished by death are considered. Thus, those obligations which are purely personal are not taken into account. c) The difference between the gross assets and the unpaid obligations will be the AVAILABLE ASSETS.

3.

Add the Value of Donations Inter Vivos a) To the available assets should be added all the inter vivos donations made by the decedent. b) The donations inter vivos shall be valued as of the time they were respectively made. Any increase or decrease in value from the time they were made to the time of the decedent’s death shall be for the account of the donee, since the donation transfers ownership to the donee. c) The sum of the available assets and all the donations inter vivos is the NET HEREDITARY ESTATE.

• COLLATION  Collation is the act by virtue of which descendants or other forced heirs who intervene in the division of the inheritance of an ascendant bring into the common mass, the property which they received from him, s that the division

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SUCCESSION REVIEWER may be made according to law and the will of the testator.  Collation is only required of compulsory heirs succeeding with other compulsory heirs and involves property or rights received by donation or gratuitous title during the lifetime of the decedent.  The purpose is to attain equality among the compulsory heirs in so far as possible for it is presumed that the intention of the testator or predecessor in interest in making a donation or gratuitous transfer to a forced heir is to give him something in advance on account of his share in the estate, and that the predecessor’s will is to treat all his heirs equally, in the absence of any expression to the contrary.



Collation does not impose any lien on the property or the subject matter of collationable donation. What is brought to collation is not the property donated itself, but rather the value of such property at the time it was donated, the rationale being that the donation is a real alienation which conveys ownership upon its acceptance, hence any increase in value or any deterioration or loss thereof is for the account of the heir or donee. [Vizconde v CA]

Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. • Donations Inter Vivos to Compulsory Heirs  Donations inter vivos to a compulsory heir shall be imputed to his legitime, i.e. considered as an advance on his legitime. 

Coverage of Rule o Applies to ALL compulsory heirs o Note that these 2 articles omit [inadvertently] ascendants who succeed as compulsory heirs. This rule applies to them as well. o For obvious reasons, this rule has no application to a surviving spouse.



Exception o This rule of imputation to the legitime will not apply if the donor provided otherwise [in relation to Article 1062], in which case the donation will be imputed to the disposable portion of the estate.

• Donations Inter Vivos to Strangers  A stranger is anyone who does not succeed as a compulsory heir.  Donations inter vivos to strangers are necessarily imputed to the DISPOSABLE PORTION.

Art. 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. • This provision implements the principle laid down in Articles 872, 886 and 904 - the inviolability of the legitime.

• Thus,

if the legitimes are impaired, the gratuitous dispositions of the testator [either inter vivos or mortis causa] have to be set aside or reduced as may be required to cover the legitimes.

• Method of Reduction  There is an order of priorities to be observed in the reduction of the testator’s gratuitous dispositions, thus – A. First, reduce pro rata the non-preferred legacies and devises [Art911 (2)], and the testamentary

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SUCCESSION REVIEWER dispositions [Art907]. Among these legacies, devises and testamentary dispositions, there is no preference. Second, reduce pro rata the preferred legacies and devises [Art911, last par.] Third, reduce the donations inter vivos according to the inverse order of their dates [i.e. the oldest is the most preferred] [Art773].

• RULES 1. If the extent of reduction is LESS THAN ½ of the value of the thing – it should be given to the devisee. 2. If the extent of reduction is ½ OR MORE of the value of the thing – it should be given to the compulsory heir.

 These reductions shall be to the extent required to complete the legitimes, even if in the process the disposition is reduced to nothing.

• In either case, there should be pecuniary reimbursement to the party who did not get his physical portion of the thing devised.

B. C.



An apparent conflict exists between this article and Art950, regarding the order of preference among legacies and devises, should reductions be necessary. [See discussions under Art950] • DEVISES/LEGACIES OF USUFRUCT/ LIFE ANNUITIES/ PENSIONS UNDER PAR. 3  The following principles shall be borne in mind: A. If, upon being capitalized according to actuarial standards, the value of the grant exceeds the free portion [i.e. it impairs the legitime], it has to be reduced, because the legitime cannot be impaired. B. The testator can impose no usufruct or any other encumbrance on the part that passes as legitime. C. Subject to the 2 rules stated, the compulsory heirs may elect between: i. Ceding to the devisee/legatee the free portion[or the proportional part thereof corresponding to the said legacy/devise, in case there are other dispositions], or ii. Complying with the terms of the usufruct or life annuity or pension.

Art. 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb onehalf of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. • This rule covers cases where: 1) The devise has to be reduced, and 2) The thing given as a devise is indivisible

Art. 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. • This article applies if neither party [the compulsory heir/s and the devisee] elects to exercise his right under Art912. • How the Thing Devised Should be Disposed Of: A. Any other heir or devisee, who elects to do so, may acquire the thing and pay the parties [the compulsory heir and the devisee in question] their respective shares in money. B. If no heir or devisee elects to acquire it, it shall be sold at public auction and the net proceeds accordingly divided between the parties concerned. • Note – this rule of constructive partition is similar to that in co-ownership [Art498] and in partition of the decedent’s estate [Art1086], except that, in these two latter cases, the acquisition by one of the co-owners or co-heirs can be done only if all the co-owners or co-heirs agree to such acquisition.

Art. 914. The testator may devise and bequeath the free portion as he may deem fit. • Simply a re-statement of Art842. CASES Vizconde v. CA Vda. De Tupas v. RTC - The petition is brought by Paternza Lucerna, wife of Epifanio Tupas, as the sole heir to the estate of the latter. - It was found that a year before Epifanio’s death, he donated some three parcels of land in favor of Tupas Foundation, Inc.

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SUCCESSION REVIEWER - The wife is contending that the donationw as inofficious as it left her destitute of any inheritance. - Hence, she prayed to have the donation declared inofficious insofar as it prejudiced her legitime, therefore reducible by such proportion as might be deemed justified and the resulting deduction delivered to her.

-

The lower court contended that a) Article 900 relied upon by plaintiff is not applicable because the properties which were disposed of by way of donation were no longer part of his hereditary estate at the time of his death b) the donated properties were Epifanio's capital or separate estate; and (3) Tupas Foundation, Inc. being a stranger and not a compulsory heir, the donation inter vivos made in its favor was not subject to collation under Art. 106 1.

Whether or not the lower court decided correctly. - SC held in the negative. - First, although the court recognized the right of individuals to donate, the same is subject to certain limitations, one of which is that he cannot give by donation more than he can give by will - 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

-

REQUISITES OF A VALID DISINHERITANCE

1.

It must be made in a Will - Must be formally valid and admitted to probate

2.

It must be for a Cause specified by law under Articles 916 in relation to Articles 919-921 - For Descendants [Article 919] a) Guilty of an Attempt Against the Life of the Testator or the latter’s spouse, descendants or ascendants b) Accused Testator of Crime punishable by 6 years or more, and the accusation is found to be Groundless c) Convicted of Adultery or Concubinage with Spouse of the Testator d) By Fraud, Violence, Intimidation or Undue Influence causes Testator to Make Will or Change 1 already made. e) Refusal without justifiable cause to support the parent or ascendant who disinherits f) Maltreatment of testator by word/deed g) Leads dishonorable or disgraceful life

Second, such a donation is, moreover, collationable. The value of the thing donated is imputable into the hereditary estate of the donor at the time 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 likewise with respect to donations made to strangers as in gifts made to compulsory heirs, although the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations.) - The said properties being collationable, the SC ordered the case remanded for further determination as to whether the donation is inofficious insofar as it is in excess of the disposable free portion of the deceased’s estate and should thereby be reduced to the amount of such excess. - 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. - 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.

SECTION 6. – DISINHERITANCE Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. • Art904 sets forth the rule that the testator cannot deprive the compulsory heirs of the legitime. The sole exception to this rule is DISINHERITANCE. Thus, disinheritance is the only instance in which the testator may deprive his compulsory heirs of their legitime.

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SUCCESSION REVIEWER

- For Ascendants [Article 920] a) Abandoned children or induced daughters to live corrupt or immoral life or attempted against their virtue b) Convicted of attempt against life of testator, his or her spouse, descendant or ascendants c) Accused testator of a Crime punishable by Imprisonment for 6 years or more, if the accusation has been found to be False d) Convicted of adultery / concubinage with the spouse of the testator e) By Fraud, Violence, Intimidation or Undue Influence causes testator to Make a Will or Change one already made. f) Loss of Parental Authority for causes specified in this Code g) Refusal to support Children or Descendants W/O justifiable cause h) Attempt by 1 of the parents against the life of the other, unless there has been reconciliation between them - For Surviving Spouse [Article 921]

a)

Convicted of Attempt against life of Testator, his/her descendants/ascendants. b) Accused Testator of a Crime punishable with imprisonment for 6 years or more, and the accusation is fond to be False. c) Spouse, by Fraud, Violence, Intimidation, or Undue Influence causes the testator to make a Will or change one already made. d) Has given cause for legal separation e) Has given grounds for loss of parental authority f) Unjustifiable refusal to support the children or the other spouse - If this is not present, or the cause specified is not among those set forth in the Code, there is ineffective disinheritance under article 918.

3.

It must Specify the cause [Arts 916 and 918] - If this is not present, there is ineffective disinheritance under article 918.

4.

It must be Unconditional

5.

It must be Total

6.

The cause must be True

7.

If the truth of the cause is Denied, it must be Proved by the proponent. - If the controverted cause is not proved, there

• Note – the strictness of the requisites indicates the policy of the law. It regards disinheritance with disfavor and will grant it only with reluctance, because disinheritance results in deprivation of legitime.

• EFFECT OF DISINHERITANCE



The effect of disinheritance is not just deprivation of the leigtime, but total exclusion of the disinherited heir from the inheritance. Thus, the disinherited heir forfeits: A. His legitime, B. His intestate portion, if any, and C. Any testamentary disposition made in a prior will of the disinheriting testator.

Art. 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified.

• Made in a Will – the 1st clause of this article constitutes

the first requisite of disinheritance, that it must be made in a will.  The will obviously, must be FORMALLY VALID and must be admitted to PROBATE.

• Legal

Cause – is the 2nd requisite for a valid disinheritance. The causes allowed by law are enumerated in Articles 919 [for descendants], 920 [for ascendants] and 921 [for the surviving spouse].

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.

• 7TH requisite – it must be noted that the truth here is not

presumed, it must be proved. All the disinherited heir need do is deny the cause and the burden is thrown upon those who would uphold the 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. • This article sets forth requisites 3 and 6 of disinheritance. • INEFFECTIVE DISINHERITANCE  If the disinheritance lacks one or other of the requisites mentioned in this article, the heir in question gets his legitime.  As to whether he will also get any part of the intestate portion or not, this depends

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SUCCESSION REVIEWER on whether the testator gave away the free portion through testamentary dispositions. o If he did, these dispositions are VALID and the compulsory heir improperly disinherited gets only his legitime. o If the testator did not, the compulsory heir will be entitled to his corresponding share of the free portion as well.

1.

Has been found Guilty of an Attempt Against the Life of the Testator or the latter’s spouse, descendants or ascendants o The word attempt here is used nontechnically and should not be construed to limit the provision to the attempted stage of the felony. o All stages of commission are included – whether attempted, frustrated, or consummated. o The felony, obviously, must be an intentional one. o FINAL CONVICTION is required. o Question – must the disinheritance be subsequent to the conviction or may it precede the conviction? - By the wording of the law, it seems that it must be subsequent [?]

2.

Has Accused the Testator of a Crime punishable by 6 years or more, and the accusation is found to be Groundless o The word accused here is used generically and will include: a) Filing of a complaint before the prosecutor, or b) Presenting incriminating evidence against the testator, or c) Even suppressing exculpatory evidence



Note the difference between the effect of ineffective disinheritance and that of preterition under article 854: Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (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; (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; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (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; (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction.

• There are 8 Causes for disinheritance of Children or Descendants – Whether Legitimate or Illegitimate [Exclusive enumeration]

o The crime of which the testator is accused must carry a penalty of at least 6 years imprisonment. - Prof. Balane says that the terminology used should be “more than 6 years imprisonment” because 6 years still falls within prision correccional. 1 day beyond that places it within the next higher penalty of prision mayor. - If the penalty prescribed is prision correccional, does it fall under the contemplation of this paragraph? o The testator must be ACQUITTED.

o The

accusation must be found to be groundless, i.e. the judgment of acquittal must state that either – a) No crime was committed or b) The accused did not commit the crime

o An acquittal based on reasonable ground will not be a ground for disinheritance. 3.

Has been Convicted of Adultery or Concubinage with the Spouse of the Testator o Final Conviction is required o Same question – must the disinheritance be subsequent to the conviction?

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SUCCESSION REVIEWER 4.

By Fraud, Violence, Intimidation or Undue Influence causes the Testator to Make a Will or Change one already made.

5.

Refusal W/O justifiable cause to Support the parent or ascendant who disinherits o There must have been a need and a demand for support [in relation to Art 203 of the Family Code] Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance.

o The

demand must have been unjustifiably refused. Refusal may be justified if the obligor does not have enough resources for all whom he is obliged to support. The ascendants are only 3rd in the hierarchy of preference among claimants of support [under Art200 par3 of the Family Code]. Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred.

6.

Maltreatment of the testator by word or deed o This will include a wide range of misdeeds, but it is required that the act of verbal or physical assault is of a serious nature. o No conviction is required, in fact, it is not even required that any criminal case be filed. o Consequently, a physical assault that would not fall under par1 as an attempt against the life of the testator, the latter’s spouse,

descendants or ascendants, can fall under this paragraph. 7.

Leads a dishonorable or disgraceful life o The operative word here is “lead.” There must be habituality to the conduct to make it fall under this paragraph. o The dishonorable or disgraceful conduct or pattern of behavior need not be sexual in nature, although it may often be that. Surely, a child or descendant whose livelihood is drug-pushing or smuggling is living a dishonorable and disgraceful life.

8.

Conviction of a crime carrying civil interdiction o Final Conviction is required. o The accessory penalty of civil interdiction is imposed with the principal penalties of death, reclusion perpetua and reclusion temporal [under Articles 40-41 of the RPC]. o Same question – must the disinheritance be subsequent to the conviction?

Art. 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 life of the other, unless there has been a reconciliation between them.

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SUCCESSION REVIEWER

• There

culpability on the part of the parents will provide grounds for disinheritance. a) Judicial deprivation of parental authority based on ground of sexual abuse [Arts232 FC] b) Loss of parental authority as a result of Judicial declaration of abandonment of a child [Art229(3) FC] c) Judicial Deprivation of Parental Authority on the grounds of: i. Excessively harsh or cruel treatment of the child ii. Giving the child corrupting orders, counsel or example. iii. Compelling the child to beg, or iv. Subjecting the child or allowing him to be subjected to acts of lasciviousness [Art231 FC]

are also 8 Causes for the Disinheritance of Parents or Ascendants, whether Legitimate or Illegitimate. [Exclusive enumeration] 1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life or attempted against their virtue o This paragraph encompasses 3 grounds:

a)

Abandonment – also includes those penalized by law under articles 276-277 of the RPC, Article 59 of PD603 and all conduct constituting repeated or total refusal or failure to care for the child. According to the case of Chua v. Cabangbang, mere acquiescence without more is not sufficient to constitute abandonment. However, when the mother completely withheld her presence, her love, her care and the opportunity to show maternal affection; and totally denied her support and maintenance, her silence and inaction having been prolonged for such a time, then it can be legally inferred that there is abandonment. Question – will consent to adoption of a child constitute abandonment?

7.

Refusal to support the Children or Descendants without justifiable cause

8.

Attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.

• Paragraphs 2, 3, 4, 5 and 7 are the same grounds for disinheritance of a descendant or child.

b)

Inducement to live a corrupt and immoral life – under Art231[2] of the Family Code as a ground for suspension or deprivation of parental authority.

c)

Attempt against Virtue – no conviction is required here.

2.

Convicted of attempt against life of testator, his or her spouse, descendant or ascendants.

3.

Has Accused testator of a Crime punishable by Imprisonment for 6 years or more, if the accusation has been found to be False.

4.

Has been Convicted of adultery or concubinage with the spouse of the testator.

5.

By Fraud, Violence, Intimidation or Undue Influence causes testator to Make a Will or Change one already made.

6.

The Loss of Parental Authority for causes specified in this Code o Not all causes for loss of parental authority are grounds for disinheritance. For instance, attainment of the age of majority is not a ground. Only those causes which involve

Art. 921. The following shall be sufficient causes for disinheriting a spouse: (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; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse.

• There

are 6 causes for disinheriting a Spouse – these grounds are exclusive.

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Spouse is convicted of an Attempt against the life of the Testator, his or her descendants or ascendants.

2.

Spouse Accused Testator of a Crime for which the law prescribes imprisonment for 6 years or more, and the accusation is fond to be False.

3.

The Spouse, by Fraud, Violence, Intimidation, or Undue Influence causes the testator to make a Will or change one already made.

4.

Spouse has given cause for legal separation o A decree of legal separation is not required. o According to Art55 of the Family Code, there are 10 grounds for legal separation: a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child or a child of the petitioner [natural or adopted]. b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of petitioner [natural or adopted] to engage in prostitution or connivance in such corruption or inducement. d) Final judgment sentencing the respondent to imprisonment of more than 6 years, even if pardoned. e) Drug addiction or habitual alcoholism of the respondent f) Lesbianism or homosexuality of the respondent g) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad h) Sexual infidelity or perversion i) Attempt by the respondent against the life of the petitioner j) Abandonment of the petitioner by respondent without justifiable cause for more than 1 year.

5.

Has given grounds for loss of parental authority

6.

Unjustifiable refusal to support the children or the other spouse

• Paragraphs 1, 2, 3, 5 and 6 are also enumerated under grounds for disinheritance of a descendant or child.

Art. 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. • Meaning of Reconciliation – either an express pardon extended by the testator to the offending heir or unequivocal conduct of the testator towards the offending

1ST SEM 2006- 2007 heir which reveals the testator’s intent to forgive the offense. a) If Express Pardon – a general pardon extended by the testator on his deathbed to all who have offended him will not suffice; it must be a pardon expressly and concretely extended to the offender, who accepts it. b) If conduct – the intent to forgive must be clear. This is ultimately a question of fact which will be resolved, in case of controversy, by the courts. • Effect of Reconciliation a) If it occurs before disinheritance is made – right to disinherit is extinguished b) If it occurs after the disinheritance is made – disinheritance is set aside. The effects of setting aside the disinheritance are: i. The disinherited heir is restored to his legitime ii. If the disinheriting will did not dispose of the disposable portion, the disinherited heir is entitled to his proportionate share [in intestacy] if any, of the disposable portion. iii. If the disinheriting will disposed of disposable portion [or any part thereof] in favor of testamentary heirs, legatees or devisees, such dispositions remain valid. • Article 922 is in relation to Article 1033.

Art. 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. • Right of Representation in Disinheritance  The right of representation is granted only to descendants of disinherited descendants.  This rule is laid down in Art972 par1 which provides: “the right of representation takes place in the direct descending line, but never in the ascending.”  Thus, a disinherited child will be represented by his children or other descendants.

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However, if the heir disinherited is a parent/ascendant or spouse, the children or the descendants of the disinherited heir do not have any right of representation. Thus, this article is carelessly worded. • Extent of Representation  The representative take the place of the disinherited heir not only with respect to the legitime, but also to any intestate portion that the disinherited heir would have inherited.  Representation therefore occurs in compulsory and intestate succession, but not in testamentary succession. CASE Francisco v. Alfonso

Art. 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. Art. 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. • WHO is charged with the Legacy



SECTION 7. LEGACIES AND DEVISES Art. 924. All things and rights which are within the commerce of man be bequeathed or devised. • Definition of Legacies and Devises – legacies and devises are codally defined [by indirection] in Art782 par2  A more accurate definition of the terms can be found either in Art660 of the Spanish Code or in Castan – o Article 660 of the Spanish Code - Legacy: testamentary disposition of personal property by particular title - Devise: testamentary disposition of real property by particular title o Castan

-

Legacy: testamentary disposition of specific or generic personal property - Devise: testamentary disposition of specific or generic real property.

• It

is important, in defining a legacy or a devise, to distinguish it from a testamentary disposition to an heir because of the effects of preterition. Essentially, the difference is that an heir receives an aliquot or fractional part of the inheritance, whereas a legatee or devisee receives specific or generic personalty or realty, respectively.

• What can be devised or bequeathed - anything within the commerce of man. It is not required that the thing devised or bequeathed belong to the testator. • Limitations on Legacy or Devise – it should not impair the legitime.

General Rule – the Estate Exception – however, the testator may impose the burden on a testamentary heir or a legatee or devisee. If he does so, then the heir, legatee or devisee charged will, if he accepts the disposition in his favor, be bound to deliver the legacy or devise to the person specified. This will be in the nature of a subsidiary legacy or devise. As far as the heir, legatee or devisee charged is concerned, it will be a MODE.



The wording of Art925 is erroneous because a compulsory heir, as such, cannot be burdened with a legacy or devise because that would impair his legitime. Only a testamentary heir can be so burdened.  Extent of liability of heir, devisee or legatee in case of subsidiary legacies or devises – the value of the benefit received from the testator.

Art. 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. • The liability imposed by this article is based on malice, fault or negligence. • This liability will also attach to the executor or administrator in the proper cases.

Art. 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. • WHO is Liable in case of EVICTION?  General Rule – the Estate  In case of a subsidiary legacy or devise – the heir, legatee or devisee charged.

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Art. 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, unless the testator expressly declares that he gives the thing in its entirety. Art. 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. Art. 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 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. Art. 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. Art. 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. 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. Art. 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.

1ST SEM 2006- 2007 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. Art. 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. 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. Art. 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. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. Art. 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. • Legacy / Devise of a thing owned in part by the testator [Art929]  General Rule – conveys only the interest or part owned by the testator  Exception – if the testator provides otherwise, viz: a) He may convey more than he owns – the estate should try to acquire the part or interest owned by other parties. If the other parties are unwilling to alienate, the estate should give the legatee/devisee the monetary equivalent, by analogy with Art931. b) He may convey less than he owns [Art794]

• Legacy / Devise of a Thing Belonging to Another [Arts930-931]  If the testator ordered the acquisition of the thing – the order should be

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SUCCESSION REVIEWER complied with. If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent.



If the testator erroneously believed that the thing belonged to him – the legacy or devise is VOID. o EXCEPT if subsequent to the making of the disposition, the thing is acquired by the testator onerously or gratuitously, the disposition is validated.  If the testator knew that the thing did not belong to him but did not order its acquisition – the Code is SILENT on this. The most rational solution seems to be that such a disposition should be considered VALID, because: a) The fact that the testator, with knowledge of the other person’s ownership, bequeathed the thing, implies an order to acquire b) At worst, there is a doubt, and doubts should be resolved in favor of testacy [Arts 788 and 791] Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy.

• Legacy / Devise of a Thing Already Belonging to the Legatee / Devisee or Subsequently Acquired by Him [Articles 932 and 933]  If the thing already belonged to the legatee/devisee at the time of the execution of the will – the legacy or devise is VOID. It is not validated by an alienation by the legatee /devisee subsequent to the making of the will.  NOTE – articles 932 par 1 and 933 par 1 say essentially the same thing and should be merged.  If the thing was owned by another person at the time of the making of the will and acquired thereafter by the legatee/devisee: a) If the testator erroneously believed that it belonged to him – legacy or devise is VOID b) If the testator was not in error – - If the thing was acquired onerously by legatee/devisee – the legatee or devisee is entitled to reimbursement. - If the thing was acquired gratuitously by legatee/devisee – nothing more is due.  If the thing was owned by the testator at the time of the making of the will and acquired thereafter from him by the legatee/devisee – Articles 932 and 933 are SILENT on this, but

Article 957 par 2 can be applied and the legacy/devise should be deemed revoked. • Legacy / Devise to remove an encumbrance over a thing belonging to the legatee / devisee under Art932 par2 – VALID, if the encumbrance can be removed for a consideration. • Legacy / Devise of a thing pledged or mortgaged under Article 934 – the encumbrance must be removed by paying the debt, UNLESS the testator intended otherwise. • Legacy of Credit or Remission [Articles 935-937]  Applies only to amount still unpaid at the time of the testator’s death [under Art935]  Revoked if testator subsequently sues the debtor for collection [[Article 936]  If Generic, applies only to those existing at the time of execution of the will [under Articles 937 and 793], unless otherwise provided.

Art. 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. Art. 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. The foregoing provisions are without prejudice to the fulfillment of natural obligations. • Legacy / Devise to a Creditor [Art938]  General Rule – will be treated like any other legacy / devise and therefore will not be imputed to the debt.



Exception – will be imputed to the debt if the testator so provides, and if the debt exceeds the legacy / devise, the excess may be demanded as an obligation of the estate.  NOTE – if the testator does provide that the legacy / devise should be imputed to the debt and the amount of the debt is equal to or more than the value of the legacy/devise it would be folly for the creditor to accept the “benefit.” He will be much better off renouncing the legacy/devise and filing a claim for the credit. • Testamentary Instruction to Pay a Debt [Art939]

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a) b) c)

This is not a testamentary disposition, but merely a direction to discharge a civil obligation. Instruction to pay non-existing debt – should be DISREGARDED, because this would solution indebiti. Instruction to pay more than what is due – effective only as to what is due, unless the bigger amount specified constitutes a natural obligation under Articles 1423 – 1430.

Art. 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. • Alternative legacies / devises  Definition – One which provides that, among several things mentioned, only one is to be given. • Right of Choice  General Rule 1) The estate, through the executor or administrator – in a direct legacy or devise 2) The heir, legatee, or devisee charged – in a subsidiary legacy or devise  These parties are, analogously, in the position of the debtor.  Exception – legatee/devisee, if the testator so provides.

the

• If the person who is to choose dies before choice is made: a) If the choice belonged to executor or administrator – the right is transmitted to his successor in office. b) If the choice belongs to an heir, legatee or devisee – the right is transmitted to his own heirs. • The choice is irrevocable. • Provisions suppletorily governing – Articles 1199-1205, on alternative obligations.

Art. 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate. 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. Art. 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. Art. 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. • Generic legacies / devises

• Rules on Validity [Article 941] A.

Generic Legacy – valid even if no such movables exist in the testator’s estate upon his death. The estate will simply have to acquire what is given by legacy. Generic Devise – valid only if there exists such an immovable in the testator’s estate at the time of his death.

B.

 Note – this distinction as found in the Spanish Code perpetuates the rule in the Partidas even if it has become artificial and arbitrary in modern times.

• Right of Choice [Article 942-943]

 General Rule – the executor or administrator, acting for the estate. o Exception – if the testator gives the right of choice to the legatee / devisee, or to the heirs on whom the obligation to give the benefit is imposed [in a subsidiary legacy or devise]



Limitation on Choice – the choice must be limited to something which is neither superior nor inferior in quality. This rule applies whether the choice belongs to the executor/administrator or the legatee/devisee. o In relation to Art1246 of the CC – “When the obligation consists in the delivery of an indeterminate or generic thing, whose quality and circumstances have not been stated, the creditor cannot demand a thing of superior quality. Neither can the debtor deliver a thing of inferior quality. The purpose of the obligation and other circumstances shall be taken into consideration.”

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

Finality of Choice – irrevocable,

o

once made.  Transmissibility of Right to Choose 1. If the choice belongs to the executor / administrator and he dies before making the choice – the right is transmitted to his successor in the position. 2. If the choice belongs to the legatee/devisee and he dies before making the choice – the right passes to his heirs.

Art. 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. Art. 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. • Legacy for Education  Duration – age of majority or the completion of a professional, vocational or general course, whichever comes later. In the latter instance, only if the legatee pursues his studies diligently.  Amount o Primarily – that fixed by the testator

Secondarily – that which is proper, as determined by 2 variables: [1] the social standing and circumstances of the legatee, and [2] the value of the disposable portion of the estate.

• Legacy for Support  Duration – the legatee’s lifetime, unless the testator has provided otherwise  Amount o Primarily – that fixed by the testator o Secondarily – that which the testator during his lifetime used to give the legatee by way of support, unless markedly disproportionate to the value of the disposable portion o Tertiarily – that which is reasonable, on the basis of 2 variables: [1] the social standing and the circumstances of the legatee, and [2] the value of the disposable portion. • Legacy of a Periodical Pension  Demandability – upon the testator’s death and the succeeding ones at the beginning of the period without duty to reimburse should the legatee due before the lapse of the period.  NOTE – this should be harmonized with the rules on settlement of estates, i.e. the debts should first be paid before any testamentary grants can be complied with [unless the legatee files a BOND under Rule 90 sec1 of ROC]. However, should the legacy prove to be inofficious, the date of effectivity shall retroact to the decedent’s death.

Art. 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. • This article lays down the same rule as Art934 par3.

Art. 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. • Demandability, Ownership and Fruits of Legacies/ Devises Demandability Pure and Determi nate

Upon Testator’s death

When Ownership Vests Upon Testator’s death

Fruits Upon the testator’s death [under Art948]

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With a Suspensi ve Term

With a Suspensi ve Conditio n

Upon Testator’s death

Upon the arrival of the term

Upon the happenin g of the condition

a. if from testator’s estate – upon testator’s death b. if acquired from a 3rd person – upon acquisition Upon arrival of the term, but the right to it vests upon the testator’s death [under Art878] Upon the testator’s death, if the condition is fulfilled [under Art1187]

Upon determination, unless testator provides otherwise [Art949]

Upon the arrival of the term [implied from Art885]

Upon the happening of the condition, unless testator provides otherwise [Art884 in rel. to Art1187]

Art. 1187. The effects of a conditional obligation to give, once the condition has been fulfilled, shall retroact to the day of the constitution of the obligation. Nevertheless, when the obligation imposes reciprocal prestations upon the parties, the fruits and interests during the pendency of the condition shall be deemed to have been mutually compensated. If the obligation is unilateral, the debtor shall appropriate the fruits and interests received, unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different. In obligations to do and not to do, the courts shall determine, in each case, the retroactive effect of the condition that has been complied with.

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. Art. 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. Art. 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. • Order of Preference among Legacies and Devises in case the Estate is Not Sufficient for All of them 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 • Article 950 and Article 911



Article 911 also contains a rule for reduction of legacies and devises and the order of preference there is different: it simply provides that all the non-preferred legacies/devises will be reduced pro rata, and the preferred legacies/devises are reduced last. It is a rule different from that set forth in Art950.

 Art. 948. If the legacy or device 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

Possible reconciliation between the 2 articles – each article can be given its own area of applicability. o Article 911 will apply if reductions have to be made because the LEGITIMES have been impaired, i.e. if the legacies/devises have exceeded the disposable portion o Article 950 will apply if the reason for the reduction is not the impairment of legitimes, i.e. there are no legitimes because there are no compulsory heirs or the legitimes have

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Art. 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.

• Although the efficacy of a legacy or devise vests upon the testator’s death, actual delivery does not take place at that time. Debts first have to be paid, then legitimes have to be determined, and the testamentary dispositions (including legacies and devises) computed lest they impair the legitimes. It is only after these steps have been taken that the beneficiaries of the will can take possession.

• The obligation to deliver the accessions and accessories

exists even if the testator does not explicitly provide for it. This is the same rule laid down in Art1166, which provides: Art. 1166. The obligation to give a determinate thing includes that of delivering all its accessions and accessories, even though they may not have been mentioned

• The

crucial time is the testator’s death, because that is when successional rights vest [under Art777]. That is why the thing must be delivered in the condition in which it is at that time.

Art. 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.

• This

article conforms to the rule of identity in the performance of obligations [under Art1244]: Art. 1244. The debtor of a thing cannot compel the creditor to receive a different one, although the latter may be of the same value as, or more valuable than that which is due. In obligations to do or not to do, an act or forbearance cannot be substituted by another act or forbearance against the obligee's will.

Art. 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.

Art. 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be 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. Art. 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. • Rules on Acceptance and Repudiation of Legacies / Devises



Legacies ma be total or partial, as implied under Art954 par1. o Exception – If the legacy/devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous part and renounce the onerous part. Any other combination however is permitted.  Acceptance or Repudiation by Heirs of Legatee/ Devisee – if the legatee or devisee dies before accepting or renouncing, his heirs shall exercise such right as to their pro-indiviso share, and in the same manner as the legatee or devisee.

 2 Legacies/Devises to the Same Recipient o If both gratuitous – the recipient may accept or renounce either or both

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If both onerous – same rule, may accept or renounce either or both If one gratuitous and the other onerous – the recipient cannot accept the gratuitous and renounce the onerous. Any other combination is permitted.

 Legacy/Devise to One who is Also a Compulsory Heir – the recipient may accept either or both, the legacy/devise and the legitime. [in relation to Art1055]

kind, in accordance with the provisions of Article 928.

• This article enumerates the instances when the

legacy/devise is REVOKED BY OPERATION OF LAW 1.

TRANSFORMATION o If for example the testator converts a plantation to a fishpond.

2.

ALIENATION o The alienation by the testator may be gratuitous or onerous. o The alienation revokes the legacy/devise even if for any reason the thing reverts to the testator. o Exceptions a) If the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation of consent on the grantor’s part, either by reason or incapacity or duress. b) If the reversion is by virtue of redemption in a sale with pacto de retro.

3.

TOTAL LOSS o This will be a cause for revocation only if it takes place before the testator’s death. o Fortuitous loss after the testator’s death will not constitute revocation because legally, the disposition takes effect upon death. o Therefore, fortuitous loss after the testator’s death will simply be an instance of “res perit domino” and will be borne by the legatee/devisee.

 Effect if the Will Provides Otherwise – all of the above rules apply in the absence of a stipulation in the will providing otherwise. If there is a stipulation, the testator’s wishes shall govern.

Art. 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. • Rules in Case of Repudiation by or Incapacity of Legatee/Devisee 1. Primarily – SUBSTITUTION 2. Secondarily – ACCRETION 3. Tertiarily – INTESTACY

Art. 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

Art. 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. • This principle is already set forth in Art789

Art. 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. • This article is misplaced because it applies not just to legatee/devisees but to all testamentary heirs as well. It should be placed under the chapter on “Institution of Heir.” CASES Articles 924-959 Belen v. BPI

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SUCCESSION REVIEWER 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 property of which the testator has not disposed. o In these instances, intestacy may be total or partial.

3.

If the suspensive condition attached to the institution of an 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 o Intestacy here may also be total or partial, depending on the extent of the disposition that turns out to be inoperative.

4.

When the heir instituted is incapable of succeeding, except in cases provided in this Code. o Incapacity to succeed under Articles 1027, 1028 and 1032. Intestacy here may be total or partial.

CHAPTER 3 LEGAL OR INTESTATE SUCCESSION

SECTION 1. GENERAL PROVISIONS Art. 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 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. • Legal or Intestate Succession Defined  Not defined by the Code, unlike testamentary and mixed succession.  But the draft Code, as well as the Spanish Code defines intestate succession as taking place “by operation of law in the absence of a valid will.”  And the Spanish Code provides that “succession results from a person’s will as manifested in a testament, or in default thereof, by operation of law.” • INSTANCES WHEN LEGAL OR INTESTATE SUCCESSION OPERATED 1. If a person dies without a will, or with a void will, or one which has subsequently lost its validity. o 3 instances with the same legal result – there is no will. o A will that has subsequently lost its validity is one that has been REVOKED under Articles 830-837 without a later one taking its place. Validity should read “efficacy.”

Other Causes of Intestacy 5. Happening of a Resolutory Condition 6. Expiration of a Resolutory Term 7. Preterition

Art. 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. Art. 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. • Exclusion and Concurrence in Intestacy  Intestacy operates on the same principles as succession to the legitime. There are 2 principles operating sometimes simultaneously, sometimes singly – EXCLUSION and CONCURRENCE. • Groups of intestate heirs and the different combinations in intestacy are outlined under Arts. 978-1010. • Basis of Intestate Succession

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SUCCESSION REVIEWER  The presumed will of the decedent, which would distribute the estate in accordance with the love and affection he has for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote charitable and humanitarian activities.  Manresa says that the law of intestacy is founded on the presumed will of the deceased. Love, it is said first descends, then ascends, and finally spreads sideways. Thus, the law first calls the descendants, then the ascendants and finally the collaterals, always preferring those closer in degree than those of remoter degrees. • BASIC RULES OF INTESTACY 1.

The Rule of Preference of Lines  The 3 lines of relationship are: a) The descending b) The ascending, and c) The collateral  The law lays down an order of preference among these lines, such that the descending excludes the ascending and the collateral, and the ascending excludes the collateral.

2.

The Rule of Proximity of Degree



The nearer exclude the more remote [Art962 par1] without prejudice to representation. 3.

The Rule of Equality Among Relatives of the Same Degree  This rule is corollary of the previous one: If the nearer exclude the more remote, logically those of equal degree should inherit in equal shares [Art962 par2]  5 EXCEPTIONS a) The rule of preference of lines b) The distinction between legitimate and illegitimate filiation [the ratio under present law is 2:1] under Article 983 in relation to Article 895 as amended by Art176 of the Family Code. c) The Rule of Division by line in the Ascending Line under Art987 par2 d) The Distinction between FullBlood and Half-Blood relationship among Brothers and Sisters, as well as nephews and nieces under Articles 1006 and 1008. e) Representation

SUBSECTION 1. - Relationship

Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. Art. 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. 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. Art. 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. Art. 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. DESCENDING DIRECT ASCENDING LINE DIRECT & COLLATERAL COLLATERAL DESCENDING DIRECT & ASCENDING DIRECT

• LINE – a series of degrees forms a line [Article 964 par1] a) Direct - degrees among ascendants and descendants [Art964 par2]

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SUCCESSION REVIEWER i.

Descending – Unites the head of the family with those who descend from him [Article 965 par2] ii. Ascending – binds a person with those from whom he descends [Article 965 par3]

b)

Collateral – Degrees among persons who are not ascendants or descendants but come from a common ancestor [Article 964 par3] i. Direct and Collateral – importance of distinction: the direct is preferred over the collateral. ii. Descending direct and Ascending direct – importance of distinction – the descending is preferred over the ascending.

i. ii. iii.

- Fourth degree First Cousins Brothers/Sisters of a grand-parent [grand-uncles / grandaunts] Grandchildren of a brother/sister [grand-nephews/grandnieces] - Fifth degree Children of a first cousin First cousins of a parent iii. Brothers/sisters of a greatgrandparent iv. Great grandchildren of a brother/sister

DIRECT LINE DEGREE COLLATERAL LINE

• COMPUTATION OF DEGREES A. Direct Line – there is no legal limit to the number of degrees for entitlement to intestate succession. The practical limit is of course, human mortality. o Mode of Counting Degrees in Direct Line - One generation = one degree - Parent to child = 1 degree - Grandparent to Grandchild = 2 degrees - Great-Grandparent to Great-Grandchild = 3 degrees

B.

Collateral Line – computation of degree is important in the collateral line because intestate succession extends only to the FIFTH [5th] DEGREE of Collateral relationship (Art1010)

o Mode of Counting Degrees in the Collateral Line [Art966 par3] i. From the reference point, ascend to nearest common ancestor [if there are more than 1 nearest common ancestor, choose any one.] ii. Then descend to the other reference point iii. Number of generations constituting the ascent and the descent is the degree of the collateral relationship.

i. ii.

o Collaterals by Degrees - First degree – none - Second degree – brothers / sisters - Third degree Uncles / Aunts Nephews / Nieces

Art. 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. • Importance of distinction between full-blood and halfblood relationship – with reference to brothers and sisters and nephews and nieces, there is a ratio of 2:1 for full-blood and half-blood relationship, respectively. [Arts1006 and 1008] • With respect to collateral relatives, the full-blood and half-blood relationship is NOT MATERIAL.

Art. 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. • ACCRETION IN INTESTACY



There is accretion in intestacy among heirs of the same degree, in case of PREDECEASE, INCAPACITY or RENUNCIATION of any one of them. [Art1015] 1) In case of predecease or incapacity, representation, if proper, will PREVENT accretion from occurring. 2) Relatives must be in the same kind of relationship – for accretion to take place the heirs involved must be in the same kind of relationship to the decedent. This is because of the principle of the preference of lines in intestate succession. Thus, there can be no accretion among a grandchild, a grandparent

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SUCCESSION REVIEWER and a brother of the decedent [even if they are all related to him in the 2nd degree] because they are not inheriting together in the first place.

Art. 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. • EFFECT OF RENUNCIATION BY ALL IN THE SAME DEGREE  The right of succession should first be passed on the heirs in succeeding degrees [in successive order] before the next line can succeed, because of the rule of preference of lines. Thus: 1) The descending line first – if all the descendants of a certain degree renounce, succession passes to the descendants of the next degree [i.e. grandchildren], and so on, ad indefinitum.

2)

The ascending line next – should no one be left in the descending line, the heirs in the ascending line acquire the right of succession, again in order of degrees of proximity.

3)

The collateral line last – only if ALL the descendants and ascendants renounce will the collateral relatives acquire the right to succeed. • Predecease or Incapacity by All in the Same Degree



This eventuality is not provided for by the article. The rules outlined, however, are equally applicable to such situation, except in cases where REPRESENTATION is proper [in descending line]  Representation does not apply in cases of universal renunciation outlined above, because there is no representation in renunciation. [Art977]

SUBSECTION 2. - Right of Representation Art. 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.

Art. 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. Art. 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. Art. 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. Art. 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. Art. 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. Art. 976. A person may represent him whose inheritance he has renounced. Art. 977. Heirs who repudiate their share may not be represented. • REPRESENTATION



Definition – 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. [Art970] o Criticisms – the term “representation”, it has been suggested that a better term to call this legal process is either hereditary subrogation or successional subrogation because the person inheriting in another’s stead actually represents no one and truly succeeds in his own right. The term “fiction of law” is criticized as inaccurate, as well, because the law has ample authority to predetermine who are to

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o The rationale for the rule barring an adopted

be called to inherit, and the law needs no resort to fictions but merely to make use of its power to designate those who are to take the inheritance.

from representing and being represented is that the legal relationship created by adoption is strictly between the adopted and the adopted. It does not extend to the relatives of either party. [Teotico v. Del Val]

• INSTANCES WHEN REPRESENTATION OPERATES A. B. C.

Predecease Incapacity or Unworthiness, and Disinheritance

• REPRESENTATION BY RENOUNCER





Instance when Representation NEVER operates – RENUNCIATION • IN WHAT KINDS OF SUCCESSION REPRESENTATION OPERATES A. LEGITIME or compulsory succession o There is no express provision on representation in the legitime, except Art923 in case of disinheritance. B. INTESTACY or legal succession



There is no representation in testamentary succession • IN WHAT LINE DOES REPRESENTATION OBTAIN A. With respect to the LEGITIME – in the direct descending line only [Art972] B. With respect to INTESTACY – the general rule is in the direct descending line as well, EXCEPT in one instance, in the collateral line – in case of nephews and nieces representing brothers and sisters of the deceased [Art975]

Although a renounce cannot be represented, he can represent the person whose inheritance he has renounced [Art976]. This is because in the 2nd sentence of Art971, the representative does not succeed the person represented but the one whom the person represented would have succeeded.  Example – A is the father of B and C is the son of B, and therefore the grandchild of A. B dies and C renounces his inheritance. But if A dies and there is a right of representation, C can still inherit from A in representation of B, even if C previously renounced his inheritance from B. This is because in the latter case, C is inheriting from A and not from B. • HOW REPRESENTATION OPERATES



PER STIRPES – the representative or representatives receive only what the person represented would have received. If there is more than 1 representative in the same degree, then divide the portion EQUALLY, without prejudice to the distinction between legitimate and illegitimate children when applicable.

• REPRESENTATION BY ILLEGITIMATE CHILDREN  If the child to be represented is legitimate – only legitimate children/descendants can represent him [Art992]



If the child to be represented is illegitimate – BOTH legitimate and illegitimate children/descendants can represent him [Arts902, 989 and 990] 

Thus X Legitimate

Illegitimate

A Legit. A1

B Illegit. A2

Legit.

Illegit.

B1

B2

Should A and B both predecease X, only A1 can represent A but both B1 and B2 can represent B

• RULES ON QUALIFICATION A. The representative must be qualified to succeed the decedent. [Art973] o Again, the rationale is found in the 2nd sentence of Art971, stating that the representative does not succeed the person represented but the one whom the person represented would have succeeded.

B.

The representative need not be qualified to succeed the person represented [Art971]

C.

The person represented need not be qualified to succeed the decedent. o In fact, the reason why representation is taking place is that the person represented is not qualified, because of predecease, incapacity or disinheritance.

 Representation OF and BY and adopted child – an adopted child can NEITHER represent nor be represented.

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• REPRESENTATION BY GRANDCHILDREN AND

REPRESENTATION BY NEPHEWS/NIECES: Difference in Rule A. If ALL the children are disqualified – the grandchildren still inherit by representation [what the parents should have gotten] under Art982.

B.

However, since E renounced his share, his P60k portion will, by ACCRETION, be divided equally among the rest of the kids of X. o Therefore, A, B, C and D will get an additional P15,000 each plus their own P60k portion, they will get 75k each. o However, since C predeceased the testator, he may be represented by C1 and C2, who will each get P37,500 [the P75k share of C to be divided by 2, assuming both C1 and C2 are legitimate children of C]. o Also, since D is unworthy to succeed, he may be represented by D1 and D2, who will get P37,500 each [P75k share divided by 2] o

If ALL the brothers/sisters are disqualified – the nephews and nieces inherit PER CAPITA under Art975.

• Some Suggestions – more explicit provisions on: o What are the occasions or causes for the operation of representation? o In what kinds of succession does representation operate?

CASES FOR ARTS. 960-977 Bagamon v Piedad

• PROBLEM ON REPRESENTATION Note, I’m not sure about the answers, please re-check

Teotico v. Del Val

 X has 5 legit kids, 3 of whom have their own kids. X A

B

C C1

D C2 D1

E D2 E1

E2



Supposing X makes a WILL [TESTAMENTARY] instituting all his 5 kids to the free portion; then C predeceases him, D is unworthy to succeed and upon his death, E renounces. How is X’s estate, worth P600,000 to be apportioned? o A, B, C, D and E are supposed to get 60,000 each [the free portion is ½ of the whole estate so the free portion is P300,000 divided by 5 kids = 60,000 each]. o However, there is NO REPRESENTATION in Testamentary Disposition. o Therefore, the share of C who predeceased X, the share of D who is unworthy, and the share of E who renounced, will all accrue to A and B as co-heirs. o So, A and B will each get ½ of the P300,000, or P150,000 each.



Supposing X dies INTESTATE, all the other facts being the same, how is X’s estate to be apportioned? o A, B, C, D and E are supposed to get 60,000 each [the free portion is ½ of the whole estate so the free portion is P300,000 divided by 5 kids = 60,000 each]. SECTION 2. – ORDER OF INTESTATE SUCCESSION

INTESTACY – RULES OF EXCLUSION AND CONCURRENCE HEIRS

EXCLUDE

CONCUR

ARE EXCLUDED BY

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SUCCESSION REVIEWER 1. Legitimat e Children

Parents, Collaterals and the State

The surviving spouse and illegitimate children

No one

2. Illegitimat e Children 3. Legitimat e Parents 4. Illegitimat e Parents 5. Surviving Spouse

Illegitimate parents, collaterals and the state Collaterals and the state

Surviving spouse, legitimate children and the legitimate parents Illegitimate children and the surviving spouse Surviving spouse

No one

6. Brothers, sisters, nephews and nieces 7. Other Collaterals 8. The State

Collaterals and the state

Legitimate children Legitimate and illegitimate children No one

Collaterals, EXCEPT brothers, sisters, nephews and nieces, and the State All other collateral relatives up to 5th degree and the state

Legitimate children, illegitimate children, legitimate parents, illegitimate parents and brothers, sisters, nephews and nieces. Surviving spouse

Collaterals remoter in degree, and the state No one

Collaterals in the same degree

All others

No one

Everyone

Legitimate & illegitimate children, and legitimate & illegitimate parents

COMBINATIONS IN INTESTATE SUCCESSION HEIR

SHARE

PROVISION

1.

Legitimate children

Whole estate, equally divided

Art. 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.

2.

Legitimate children and Illegitimate children

Whole estate with ½ share of 1 legit child for EACH illegitimate child

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895. Art. 176 FAMILY CODE. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force.

3.

Legitimate children and surviving spouse

Whole estate, divided equally, including the surviving spouse

Art. 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.

4.

Legitimate children, surviving spouse and illegitimate children

Whole estate, the spouse getting the share of 1 legitimate child and the illegitimate child getting ½ the share of 1 legitimate child.

Art. 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. Art. 176 FAMILY CODE. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime

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of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force.

5.

Legitimate parents alone

Whole estate, equally

Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.

6.

Legitimate ascendants

Whole estate, division equally by line

Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita.

7.

Legitimate parents and illegitimate children

8.

Legitimate parents and surviving spouse

Legitimate parents get ½ of the estate divided equally between them and the illegitimate children get ½ of the estate divided also equally Legit parents get ½ of the estate and the surviving spouse gets the other half

Art. 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. Art. 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.

9.

Legitimate parents, surviving spouse and illegitimate children

Legit parents get ½, the surviving spouse gets ¼ and the illegitimate children get ¼.

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.

10. Illegitimate children

The whole estate, divided equally

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

11. Illegitimate children and surviving spouse

The illegitimate children get ½ and the surviving spouse gets the other ½

Art. 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.

12. Surviving spouse

The whole estate

Art. 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. 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. Art. 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

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brothers and sisters, nephews and nieces, should there be any, under article 1001.

13. Surviving spouse and illegitimate parents

Spouse gets ½ of estate, illegitimate parents get the other ½

No provision, but by analogy to Art997. Art. 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.

14. Surviving spouse and legitimate brothers, sisters, nephews and nieces 15. Surviving spouse and illegitimate brother, sisters, nephews and nieces

Spouse gets ½ and the legitimate BSNN get ½, with the nephews and nieces inheriting by representation in proper cases

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.

Spouse gets ½ while illegitimate BSNN get ½, with representation

Art. 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. 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.

16. Illegitimate parents

The whole estate

Art. 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.

17. Illegitimate parents and any children

Illegitimate parents are excluded by the children

Art. 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.

18. Legitimate brothers and sisters

Whole estate, half blood gets ½ of full blood’s share [2:1]

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. 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.

19. Legitimate brothers & sisters, nephews & nieces

Whole estate, 2:1 for half blood, with representation for nephews and nieces

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. 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.

20. Nephews and nieces with uncles and aunts

Uncles and aunts are excluded. The nephews and nieces get the whole estate

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

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relationship by the whole blood. And the case of Bacayo v Borromeo

i. ii.

21. Illegitimate brothers and sisters 22. Illegitimate brothers & sisters, nephews & nieces 23. Nephews and nieces

Whole estate, 2:1 full and half blood

No article governing

Whole estate

No article governing

Whole, PER CAPITA, 2:1 ratio

Art. 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. 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.

24. Other collaterals

Whole, PER CAPITA, nearer excludes the more remote in degree

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. Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

25. The state

Whole estate

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.

• AS TO THE STATE  Assignment and disposition of decedent’s asses a) If decedent was a resident of the Philippines at ANY Time Personal Property – to municipality of last residence Real Property – where situated b)

 a)

b)

If decedent was NEVER a resident of the Philippines – where property is situated, whether real or personal property. How property is to be used For the benefit of public educational and charitable institutions in the respective municipalities/cities Alternatively, at the instance of an interested party, or motu proprio, court may order

creation of a permanent trust for the benefit of the institutions concerned.

SECTION 2. – ORDER OF INTESTATE SUCCESSION SUBSECTION 1. - Descending Direct Line Art. 978. Succession pertains, in the first place, to the descending direct line. • WHO ARE THE INTESTATE HEIRS [not in order] A. Legitimate Children/Descendants B. Illegitimate Children/Descendants C. Legitimate Parents/Ascendants D. Illegitimate Parents

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G. H.

Surviving Spouse Brothers, Sisters, Nephews, Nieces Other Collaterals up to the 5th degree The State

 The first 5 classes of intestate heirs are also compulsory heirs.  There is also an overlapping of compulsory and intestate succession, i.e. the legitime and the intestate portions merge.  There is a very close parallel between the rules of compulsory succession and those of intestate succession.

Art.

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.

• The right of an adopted child in relation to the adopter is governed by sections 17 and 18 of RA8552, which lays down the same rule that an adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child.

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

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.

• Grandchildren do not inherit per capita even if all children die – they inherit per stirpes, EXCEPT if ALL children renounce, then the grandchildren will inherit in their own right / per capita.

amendments introduced by Articles 163 and 176 of the Family Code. • In this combination, care should be taken lest the legitimes of the legitimate children be impaired. Consequently, a 2-step process should be observed – 1) Segregate the legitimes of the children – both legitimate and illegitimate 2) If any residue is left, apportion it in the proportion of 2:1.

• It

is possible – depending on the number of legitimates and illegitimates – that the estate may not even be sufficient to satisfy the legitimes, in which case, the second step in the process will not even be feasible. In fact, in such case, the legitimes of the ILLEGITIMATES will have to be reduced pro rata.

Art. 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be his legal heirs. • Repealed by Sections 17 and 18 of RA8552.

SUBSECTION 2. - Ascending Direct Line Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. Art. 986. The father and mother, if living, shall inherit in equal shares. Should one only of them survive, he or she shall succeed to the entire estate of the child. Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, onehalf shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. • There is no right of representation in the ascending line.

Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895.

CASE FOR ARTS. 978-987

• The proportion of the shares of legitimate and illegitimate children has been simplified to 2:1 by virtue of the

SUBSECTION 3. - Illegitimate Children

Sayson v. CA

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SUCCESSION REVIEWER Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. Art. 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. • Only difference – an illegitimate child can be represented bi either an illegitimate or legitimate child of his. While a legitimate child can only be represented by a legitimate child of his.

Art. 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.

declared because the will does not contain an institution of heir. - The probate court however approved the project of partition.

-

It appears that Teodoro was an acknowledged natural child and not a legitimate child was the statement in the will of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his acknowledged natural children.

WON Juanita is entitled to a share in intestate estate of Teodoro. (Juanita is a legitimate daughter of Romana and Tomas.) - NO. Since Teodoro was an acknowledged natural child or was illegitimate and since Juanita was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives. - Corpus concedes that if Teodoro R. Yangco was a natural child, he (Tomas Corpus) would have no legal personality to intervene in the distribution of Yangco's estate.

-

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

the the the the

Art. 992 of the NCC provides that "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." - The rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child.

Leonardo v. CA

Art. 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. • MEMORIZE! • This is the well-known and much criticized successional barrier between legitimate and illegitimate relatives of a decedent. CASES Corpus v. Corpus - Teodoro died without forced heirs. His will was probated. - At his death his nearest relatives were: Luis (his half brother), Paz (his half sister), children of his half brother Pablo), and Juanita (daughter of his half brother Jose). - Teodoro was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas Corpus. - Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas Corpus, two of whom were the Pablo and Jose. - The project of partition was opposed by the estate of Luis whose counsel contended that intestacy should be

-

Francisca Reyes died intestate and was survived by her two daughters and grandson, who is the son of her 3 rd daughter who predeceased her. Grandson died eventually 2 yrs after. - Leonardo now claims ownership over some properties of Francisca because he was a son of the grandson. W/N Leonardo may inherit. - SC held that he cannot because: - 1. He was an illegitimate child of grandson. He was born outside of wedlock and while his father’s first marriage is still subsisting. - 2. An illegitimate child may not inherit by right of representation from the legitimate relatives of his father. - ART. 992

Diaz v. IAC 150 SCRA 645 (1987) - Simona Jardin has a niece Felisa Jardin from her legitimate sister Juliana Jardin. At the same time, Simona also had a legitimate son, Pablo santero, who predeceased her. On the other hand, Pablo Santero was survived by his 6 acknowledged natural children. - Simona Jardin died intestate with only her niece Felisa as the sole surviving heir. During the intestate proceedings of

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SUCCESSION REVIEWER the estate of Simona, the illegitimate children of Pablo Santero intervened and contended that as the illegitimate children of the deceased Simona they have the right to succeed by representation. - The grandchildren premised their rights to succeed under Art 990 of the NCC, which grants the right of representation to descendants whether legitimate or illegitimate. Hence, by said proviso, the grandchildren has the right to represent their deceased father in the estate of their grandmother. Who between Felisa Jardin and the Illegitimate grandchildren of Simona are to be considered the legal heirs of Simona Jardin. - Felisa Jardin is the sole legal heir of the decedent.

-

-

-

-

The SC held that the grandchildren's reliance in Art 990 is misplaced and that the applicable law is Art 992. Art 990 is not applicable because Pablo Santero is a legitimate child of Simona while the oppositors are the former's illegitimate children. (Art 990 applies to the right of the descendants of an illegitimate child to inherit by representation.) Art 992 provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of of the father or mother of said legitimate child. Between the legitimate and illegitimate family there is presumed to be an intervening antagonism and incompatibility. It is clear therefore from Art 992 of the NCC that the phrase "legitimate children and relatives of his father and mother" includes Simona Jardin. Hence, the illegitimate grandchilren are barred from asserting their right to succeed from Simona, who is a legitimate relative of their father. ART 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother (who must be a legitimate child). (However note that descendants, whether legitimate or illegitimate, can inherit by right of representation if the person to be represented is an illegitimate child.).

Diaz v. IAC 182 SCRA 427 (1990)

-

The illegitimate children of Pablo Santero filed a 2nd Motion for Reconsideration on the decision of the SC holding them disqualified from inheriting from the estate of Simona Jardin. (same facts as above) - Said grandchildren are now invoking Arts 902, 982, 989 and 990 of the New Civil Code to bolster their right to succeed. Whether or not the illegitimate children of a legitimate child can inherit by right of representation from the children and relatives of such legitimate parent - No.

-

-

First, Articles 902, 989 and 990 clearly speaks of successional rights of illegitimate children, which rights are transmitted to their descendants upon death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. Second, although Art 982 provides that "the grandchildren and other descendants shall inherit by right of

representation", the same is limited by Art 992 to the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother (who must be legitimate children themselves). - Third, it is true that while the NCC granted successional rights to illegitimate children, those articles must however be read in conjunction with Art 992, which prohibits the right of representation from being exercised where the person to be represented is a legitimate child. The determining factor therefore is the legitimacy or illegitimacy of the person to be "represented." It must be emphasized that illegitimate children have only those rights expressly garnted to them by law. - Fourth, the term "relatives", in accordance with the rules of statutory construction, must be understood to have a general and inclusive scope inasmuch as the term is a general one. In fact, if the law wants to distinguish it expressly says so by adding qualifiers such as the word "collateral".

-

From the aforementioned, SC affirmed its earlier decision that the illegitimate grandchildren are barred from inheriting ab intestato from Simona's estate.. ART 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother (who must be a legitimate child). (However note that descendants, whether legitimate or illegitimate, can inherit by right of representation if the person to be represented is an illegitimate child.)

Vda. De Crisologo v. CA - Petitioners in this case filed an action for ownership, annulment of sale, and delivery of possession of various properties against Bernardo Mallillin. - Bernardo claims that petitioners are complete strangers to the decedent Julia Capiao inasmuch as Lutgarda is the decedent’s illegitimate daughter, a product of her extramarital relations with one Victoriano Taccad. - The petitioners claim to be legal heirs being relatives of Lutgarda within the fifth civil degree. - The lower court said that they cannot inherit because they are legitimate relatives of Julia Capiao and they cannot inherit from an illegitimate daughter of the latter pursuant to Article 992 of the Civil Code. Whether or not the relatives of Julia Capiao, namely, the petitioners in this case, can inherit from Lutgarda Capiao, the original owner of the properties in dispute. - NO. - It is clear from the records that the petitioners cannot inherit the properties in question because of Article 992 of the Civil Code. - Being relatives on the legitimate line of Julia Capiao, they cannot inherit from her illegitimate daughter. - Article 992.

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SUCCESSION REVIEWER Art. 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. Art. 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. 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. SUBSECTION 4. - Surviving Spouse • There are no rules on marriage mortis cause [unlike in legitimes]

Art. 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. Art. 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. • This rule holds even if there is only 1 legitimate child, in which case, the child and the surviving spouse will divide the estate equally.

• When the law speaks of “brothers and sisters, nephews and nieces” as legal heirs of an illegitimate child, it refers to illegitimate brothers and sisters as well as to the children, whether legitimate or illegitimate, of such brothers and sisters.

Art. 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. Art. 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. Art. 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. 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. 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. 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.

CASES FOR ARTICLES 995-1002 Santillon v. Miranda - Santillon died without testament in Tayug, Pangasinan, his residence, leaving one son Claro, and his wife, Perfecta Miranda. During his marriage, Pedro acquired several parcels of land located in that province. - About four years after his death, Claro Santillon filed a petition for letters of administration. Opposition to said petition was entered by the widow Perfecta Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following grounds: (a) that the properties enumerated in the petition were all conjugal, except three parcels which Perfecta Miranda claimed to be her exclusive properties; (b) that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided share in most of the properties enumerated in the petition to said spouses Benito and Rosario; - Claro rests his claim to 3/4 of his father's estate on Art. 892, of the New Civil Code which provides that: - "If only the legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to onefourth of the hereditary estate. . . .'As she gets one-fourth, therefore, I get 3/4, says Claro.

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SUCCESSION REVIEWER - Perfecta, on the other hand, cites Art. 996 which provides: "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." - Replying to Perfecta's claim, Claro says the article is unjust and inequitable to the extent that it grants the widow the same share as that of the children in intestate succession, whereas in testate, she is given 1/4 and the only child 1/2. - Perfecta, on the other hand, contends that Art. 996 should control, regardless of its alleged inequity, being as it is, a provision on intestate succession involving a surviving spouse and a legitimate child, inasmuch as in statutory construction, the plural word "children" includes the singular, "child". How shall the estate of a person who dies intestate be divided when the only survivors are the spouse and one legitimate child? - Art. 892 of the New Civil Code falls under the chapter on Testamentary Succession; whereas Art. 996 comes under the chapter on Legal or Intestate Succession. Such being the case, it is obvious that Claro cannot rely on Art. 892 to support his claim to 3/4 of his father's estate. Art. 892 merely fixes the legitime of the surviving spouse and Art. 888 thereof, the legitime of children in testate succession. While it may indicate the intent of the law with respect to the ideal shares that a child and a spouse should get when they concur with each other, it does not fix the amount of shares that such child and spouse are entitled to when intestacy occurs. Because if the latter happens, the pertinent provision on intestate succession shall apply; i. e. Art. 996. - Children:— It is a maxim of statutory construction that words in plural include the singular. 2 So Art. 996 could or should be read (and so applied): "if the widow or widower and a legitimate child are left, the surviving spouse has the same share as that of the child." - Our conclusion (equal shares) seems a logical inference from the circumstance that whereas Article 834 of the Spanish Civil Code, from which Art. 996 was taken, contained two paragraphs governing two contingencies, the first, where the widow or widower survives with legitimate children (general rule), and the second, where the widow or widower survives with only one child (exception), Art. 996 omitted to provide for the second situation, thereby indicating the legislator's desire to promulgate just one general rule applicable to both situations. - The resultant division may be unfair as some writers explain, — and this we are not called upon to discuss — but it is the clear mandate of the statute, which we are bound to enforce. - When intestacy occurs, a surviving spouse concurring with only one legitimate child of the deceased is entitled to onehalf of the estate of the deceased spouse under Article 996 of the Civil Code.

whereby they adjudicated between themselves the properties left by Teodoro. - Severino represented himself as the only and forced heir and descendant of Teodoro. - About 18 years after the execution of the said document, petitioners filed a complaint seeking a declaration that they are legal heirs of Teodoro and that they be given the shares that they are entitled to with respect to the properties of Teodoro.

-

Petitioners alleged that they are the legitimate children of Guillerma Abenojar, who was the only child of Teodoro with his first wife named Florencia Bautista and that while Teodoro contracted a 2nd marriage with Antera Mandap and a 3rd with Maxima Andrada, he did not have any offspring. They aver that Severino is an illegitimate son of Guillerma Abenojar. - Private respondents alleged that Teodoro married only once and that was with Maxima. They claimed that Severino is an acknowledged natural child of Teodoro with Florencia. They aver that Guillerma, the mother of petitioners, was Teodoro’s spurious child with Antera Mandap. - Private respondents also alleged that the action had already prescribed. - The trial court dismissed the action because of prescription. Whether the action is barred by prescription. - NO. The lower court erred assuming that the extra-judicial partition to be merely a voidable contract and not a void one. Thus, there should first be a determination of the judge regarding the legal status of Severino. - The SC ordered the lower court to try the case on the merits to determine the legal status of the Severino. - If the claim of the petitioners is correct, then Severino has no rights of legal succession from Teodoro because of Art. 992 of the NCC.

-

The right of representation is denied by law to an illegitimate child who is disqualified to inherit ab intestate form the legitimate children and relatives of his father.

Whether Severino may be considered as legal heir of Teodoro. - The right of Severino to be considered a legal heir of Teodoro depends on the truth of his allegations that he is not an illegitimate child of Guillerma, but an acknowledged natural child of Teodoro. - Should it be proved that Severino is not a legal heir, the portion of the deed of extra-judicial partition adjudicating properties of Teodoro in his favor shall be deemed inexistent and void from the beginning.

-

Pascual v. Pascual Bautista

Art. 992 of the NCC: 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. - Art. 1105 of the NCC: A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person.

Landayan v. Bacani

Manuel v. ferrer

- Teodoro Abenojar owned parcels of land in Pangasinan and a house and lot in Manila. - He died intestate. - Maxima Adrada, the surviving spouse of Teodoro, and Severino Abenojar, executed an extra-judicial partition

Del Rosario v. Conanan

SUBSECTION 5. - Collateral Relatives

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SUCCESSION REVIEWER Art.

1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. • Prescriptive period for the claim is FIVE YEARS from the delivery of the property to the state or political subdivision concerned.

• Who

may make the claim – any person entitled by succession to the estate, including any heir of any kind of succession, legitime, testamentary or intestate.

THE PROBLEM OF PARTIAL INTESTACY • The combinations laid down in Articles 978-1014 cover only cases of TOTAL intestacy. There is no provision to govern cases of partial intestacy when the decedent has left a will disposing of part, but not all, of the disposable portion. • How then should the estate be divided if the decedent died with a will but the will does not dispose of the entire free or disposable portion? The problem is solved by inference, bearing in mind the law’s intent, thus: 1) Trace where the free portion went in total intestacy 2) Since part of that free portion was disposed of by will, the testamentary provision should be carried out, and what is left of the free portion should then be given to the intended beneficiary in intestacy. • EXAMPLE  X died, leaving as his survivors his legitimate parents A and B and his wife Y, without any children. He left a will giving 1/8 of his entire estate to Caritas Manila. His net estate is worth P600,000. • PROCESS/ANSWER  The will is not inofficious, since it disposes only of 1/8 of the estate, the disposable portion being ¼.

whom the entire free portion went in total intestacy [since A and B simply got their legitimes.  Therefore, since part of the free portion was given away by will, the remainder should be given to Y.



Hence, Caritas Manila gets 1/8 or P75,000. A and B get ½ or P300,000 divided between them, so P150,000 each. Y then gets P225,000. All shares total to the P600,000 estate.

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. 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. Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. 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. 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. Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.



The legitimes of the compulsory heirs are – o A and B as legitimate parents – ½ of estate = P300,000 o Y as surviving spouse – ¼ of estate = P150,000

 o o

In total intestacy, the sharings would have been – [according to Art997] A and B to ½ of the estate = P300,000 Y to ½ of the estate = P300,000  The intended recipient of the undisposed portion is Y since she is the one to

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. Art. 1012. In order that the State may take possession of the property mentioned in the

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SUCCESSION REVIEWER preceding article, the pertinent provisions of the Rules of Court must be observed. 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 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. 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.

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



Definition – a right by virtue of which, when 2 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.  Occasions for Operation of Accretion a) RENUNCIATION b) PREDECEASE c) INCAPACITY



ELEMENTS FOR ACCRETION IN TESTAMENTARY SUCCESSION • In case of partial intestacy 1) 2 or more persons are called to the same inheritance, or to the same portion thereof, CASES FOR ARTICLES 1003-1014 pro indiviso o Meaning of pro indiviso: Abellana v. Ferraris  Either the co-heirs are instituted Tioco de Papa v. Camacho without individual designation of shares, ex. “I institute A and B to ½ Bicomong v. Almanza of my estate.” Or  The co-heirs are instituted with the specification that they share equally [“in equal shares”] or that they have the same fractional sharing for each [Art1017]. Examples: “I institute A, B and C to ½ of my estate in equal shares,” or “I institute A, B and C to ½ of my estate, each of them to take CHAPTER 4 1/3 of such ½.” PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS  Will accretion occur if the fractional sharings of the co-heirs are unequal? YES. All that the law requires is that the institution be pro SECTION 1. – indiviso, which means “as undivided” RIGHT OF ACCRETION or “in common”. The term does not

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SUCCESSION REVIEWER import equality of shares. Thus, accretion will occur even if the sharings are unequal, as long as the result is co-ownership. 2)

One of the persons thus called die before the testator, or renounce the inheritance or be incapacitated to receive it. o Renunciation, predecease or incapacity of one or more but LESS THAN ALL of the instituted heirs.

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 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. Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. • In intestacy, accretion occurs – A. In repudiation or renunciation – accretion is subordinate to representation in intestacy. B. In predecease, only if representation does not take place C. In incapacity or unworthiness, only if representation does not take place. • The co-heirs in whose favor accretion occurs must be coheirs in the same category as the excluded heir.  Example, if X dies intestate and is survived by his wife Y and his brothers A, B and C. If C renounces, his portion goes to A and B by accretion. Y is not an accruing co-heir, not being of the same category or class.

Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit.

• EXCEPTIONS to general rule that accretion should be proportional – a) b)

In testamentary succession, if the testator provides otherwise, If the obligation is purely persona, and hence intransmissible.

Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion.

• 1ST

paragraph – 3 kinds of succession: compulsory, testamentary and intestate. These 3 are distinct, although they may operate simultaneously. Consequently, accretion is restricted in its operation within the confines of the particular kind of succession involved.

• 2ND

paragraph – there is NO ACCRETION in the LEGITIME. In most cases, this rule will not substantially affect the operation of the legitime. The possible significance of this is when it comes to the computation of legitimes of illegitimate children or the surviving spouse, when concurring with legitimate children.

Art. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations.

• In the testamentary succession, accretion is subordinate

to substitution, if the testator so provided. This is because substitution is the testator’s express intent, whereas accretion is merely his implied intent. • Obviously, if there is neither substitution nor accretion, the part left vacant will lapse into intestacy and will be disposed of accordingly.

• General Rule - Accretion should be proportional.

Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had.

SECTION 2. – CAPACITY TO SUCCEED BY WILL OR BY INTESTACY

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Art. 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 in favor of capacity to succeed, as long as the successor has juridical personality. Incapacity must be based on some legal ground and must be shown. • The second paragraph is inaccurate. Some grounds for incapacity to succeed by will have no application to compulsory or intestate succession. • The articles laying down the cause of incapacity to succeed are Articles 1027, 2028 and 1032. A. Article 1027 pars. 1-5 – applicable only to testamentary succession B. Article 1027 par6 – applicable to ALL kinds of succession C. Article 1028 – applicable only to testamentary succession D. Article 1032 – applicable to ALL kinds of succession

Art. 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. • REQUIREMENT FOR CAPACITY TO SUCCEED OF NATURAL PERSONS A.

B.

C.

General rule – must be LIVING when succession opens 1. When succession opens – the decedent’s death under Art777 2. Meaning of “living” – it is enough that the heir, devisee or legatee be already conceived when the decedent dies, provided it be born later, in accordance with Articles 40 and 41. Inheriting is favorable to the child. If institution is subject to a Suspensive Condition o Successor must ALSO be living when the condition happens [Art1034 par3]. Thus, in a conditional institution, the successor must be living BOTH when the decedent dies AND when the condition happens.

1ST SEM 2006- 2007 o The requirement of being alive applies only at the moment of the decedent’s death, the successor need not be alive, when the term arrives [Art878] • Representation NOT an exception to Requirement  The requirement that the successor should be alive when the decedent dies is absolute. There is no exception to this rule, the provisions of this article notwithstanding.  For representation to occur, the representation must at least already be conceived when the decedent dies, because of the provisions of Articles 971 and 973.  Example – X has 2 sons A and B. B was disinherited by X. X died in 1985. In 1988 B begot a child. B’s child cannot represent B in the succession to X.

Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other 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. • REQUIREMENT FOR CAPACITY OF JURIDICAL PERSONS TO SUCCEED  It must already EXIST as a juridical person when the decedent dies.  Organizations or associations which do not possess juridical personality cannot succeed, because legally, they would not exist. The enumeration of juridical persons is found in Art 44: Art. 44. The following are juridical persons: (1) The State and its political subdivisions; (2) Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law; (3) Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member.

 For institutions subject to suspensive conditions or terms, the rules outlined in the previous article apply.

If institution subject to a Suspensive Term

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Art.

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; (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; (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; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit.

• Pars. 1-5 apply only to TESTAMENTARY Succession. They have no application to the legitime or to intestacy. Thus, a person may be disqualified to succeed by will under these paragraphs but will still be entitled to a legitime or to an intestate portion.  It is unfortunate that these paragraphs, [except Par3, which clearly limits its application to testamentary dispositions] do not state clearly that they only apply to testamentary succession and not to the legitime or intestacy. • Par6 is misplaced because it provides for TOTAL disqualification. It should be made a separate article.

• Rationale

of Pars. 1-5 – the law, in imposing a disqualification, seeks to prevent any possible abuse of the moral or spiritual ascendancy for purposes of testamentary benefit.

• This

disqualification is peremptory. No actual duress or influence need be shown, these are conclusively presumed. Proof of absence of duress or influence is irrelevant and will not remove the disqualification.

• PERSONS INCAPACITATED TO SUCCEED 1. Priest or minister of the gospel o Requisites: a) The will must have been executed during the testator’s last illness b) The spiritual ministration must have been extended during the last illness. c) The will must have been executed during or after the spiritual ministration. o Notwithstanding the seemingly restrictive terms of this disqualification, it applies not only to Christian priests, pastors, ministers and so forth, but also to all individuals belonging to other religions, sects or cults, whose office or function is to extend the peculiar spiritual ministrations of their creed.

2.

Priest’s 4th degree relatives and his Church o Purpose of disqualification – to prevent indirect violations or circumventions of par1. o Spouse of religious minister – does the prohibition apply to the spouse of the minister? YES. Although the Catholic priest s celibate, the priesthood or ministry of other denominations or religions are not. Certainly, the mischief sought to be averted can be perpetrated by the spouse.

3.

Guardian as to disposition before Final Accounting o When disqualification applies – the will must have been executed by the ward during the effectivity of the guardianship, which means at anytime between the commencement of the guardianship and its dissolution.

o What kind of guardianship covered – terms of disqualification seem to be limited to guardians over the property. In view, however, of the purpose of the prohibition, the argument that this prohibition should apply as well to guardians over the person is most tenable.

o Exception – a guardian who happens to be an ascendant, descendant, brother, sister or spouse of the ward-testator is excluded from the prohibition. Curiously, thus exception is not allowed in the other paragraphs.

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Attesting witness or Spouse, Parents, Children or any one claiming under such witness, spouse, parents or children o Essentially a reiteration of the disqualification in Art823, but cast more in general terms, since this article nullifies not just legacies and devises but all testamentary dispositions made in the witness’ favor. o NOTE – there is a discrepancy between this paragraph and Art823, which allows for an exception: i.e. if there are 3 other competent witnesses. That exception should be read into this paragraph.

5.

Physician, surgeon, nurse, health officer or druggist o Scope of Prohibition – the person must have taken care of the testator during the latter’s final illness. “Taking Care” means medical attendance with some regularity or continuity that the possibility of duress or influence exists. o However, the pharmacist who only happens to fill a prescription does not fall under the interdiction.

6.

Individuals, associations and corporations not permitted by law

• Bewildering variations in the rules –  Why do some paragraphs [pars 2 and 4] disqualify relatives but another [par5] does not?



Why is the exception in par3 not applied to paragraphs 1 and 5?  The reason is that the article is derived from various sources – from the Old Code, the Code of Civil Procedure and the ideas of the Code Commission.

Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. • The Disqualification laid down by this article applies only to TESTAMENTARY SUCCESSION • By the provisions of this article, those are disqualified from receiving donations under Art739 are likewise disqualified from receiving testamentary dispositions from the parties specified in that article. Art. 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; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

(3) Those made to a public officer or his wife, descedants and ascendants, by reason of his office. 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.

CASES FOR ARTICLES 1015-1028 Parish Priest v. Rigor - Father Rigor, the parish priest of Pulilan, Bulacan, died leaving a will which was probated by the CFI. Named as devisees in the will were the testator's nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda. - It may be deduced that the testator intended to devise the 44 ha. Riceland owned by him to his nearest male relative who would become a priest, who was forbidden to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been ordained a priest, he was excommunicated, and who would be obligated to say annually twenty masses with prayers for the repose of the souls of the testator and his parents. - During the testate proceedings, the CFI approved the project of partition and directed the administratrix to deliver to the devisees their respective shares. Inasmuch as no nearest male relative of the testator claimed the devise and as the administratrix and the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the same were not delivered to him. The latter, however, petitioned for delivery of the ricelands to the church. - The lower court, after first declaring the bequest inoperative, later reconsidered its findings in an order, on the ground that the testator had a grandnephew (born after the testator's death), who was a seminarian, and directed the administrator of the estate to deliver the ricelands to the parish priest of Victoria as trustee. Did the testator contemplate only his nearest male relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime after his death? - The bequest refers to the testator's nearest male relative living at the time of his death and not to any indefinite time thereafter. "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" - The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator's nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of his estate. That could not have been his intention. - In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact date of his death or state with certitude what category of nearest male

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-

-

-

-

relative would be living at the time of his death, he could not specify that his nearest male relative would be his nephew or grandnephews (the sons of his nephew or niece) and so he had to use the term "nearest male relative". Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was likewise inoperative. It should be understood that the parish priest of Victoria could become a trustee only when the testator's nephew living at the time of his death, who desired to become a priest, had not yet entered the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies did not arise, and could not have arisen, in this case because no nephew of the testator manifested any intention to enter the seminary or ever became a priest. This case is covered by article 956, which provides that if "the bequest for any reason should be inoperative, it shall be merged into the estate, except in cases of substitution and those in which the right of accretion exists" This case is also covered by article 960(2), which provides that legal succession takes place when the will "does not dispose of all that belongs to the testator." There being no substitution nor accretion as to the said ricelands, the same should be distributed among the testator's legal heirs. The effect is as if the testator had made no disposition as to the said ricelands. The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as to the indivisibility of the testator's will is no longer valid. Thus, if a conditional legacy does not take effect, there will be intestate succession as to the property covered by the said legacy

Resurrecion v. Javier Nepomuceno v. CA -

-

Martin Jugo, in his will, appointed Sofia Nepomuceno as his sole and only executor of his estate. The will state that Jugo was legally married to Rufina Gomez, by who he has 2 children and that since 1962, they have been estranged and Martin had been living with Sofia as husband and wife. Martin devised to his forced heirs (Rufina and their 2 children) his entire estate, and the free portion thereof to Sofia. Sofia filed a petition for the probate of the last will of Martin. Rufina and her children opposed. CFI denied probate on the ground that Martin admitted in his will that he had been unlawfully cohabiting with Sofia. The CA reversed and admitted the will to probate but declared that the devise in favor of Sofia is void. Sofia contends that the validity of the testamentary provision in her favor should be assailed in another proceeding.

Whether the probate court could validly pass upon the intrinsic validity of the testamentary provision in favor of Sofia. - YES. The rule that only the extrinsic validity of the will is looked upon in probate proceedings is not absolute. For practical considerations, the probate court is not powerless

to pass upon certain provisions of the will even before it is probated. Whether Sofia can validly claim the devise made in her favor. - NO. The prohibition in Art. 739 of the NCC is against the making of a donation between person who are living in adultery or concubinage. It is the donation which becomes void. The given cannot give even assuming that the recipient may receive. - In this case, the wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

-

Art. 1028 of the NCC: The prohibitions mentioned in Art. 739, concerning donations inter vivos shall apply to testamentary provisions.

Art. 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 pious works, and the other half to the State, for the purposes mentioned in Article 1013. • REQUISITES A. Disposition for prayers and pious works for the benefit of the testator’s soul B. No specification of application of the disposition • Apportionment of the Disposition or its Proceeds A. One-half [1/2] to the Church or denomination to which the testator belonged B. One-half [1/2] to the State, to be applied as provided for under Art1013

Art. 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

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SUCCESSION REVIEWER 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. • The named beneficiaries here are the poor, either of a definite locality [par3] or of no designated locality [par1]. In the latter case, the beneficiaries shall be the poor of the testator’s domicile, unless excluded by the testator in his will. • Who are to determine the individual beneficiaries within the class designated by the testator? A. The person authorized by the testator or in his default, B. The executor, or in his default, C. The administrator.  In fact, the committee specified in this article will have no occasion to function.

Art. 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.

(5) (6)

(7)

(8)

• This article applies to all kinds of succession • GROUNDS FOR UNWORTHINESS 1.

• Rationale – What cannot be done by direction cannot be done by indirection. The simulation must be proved, for this article to apply. • Effect of simulation or circumvention – The article provides that the disposition is void, hence ineffective both as to the intended beneficiary and the intermediary. The intestate heirs, to whom the property would go, have the right to claim the nullity.

Art.

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; (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; Any person convicted of adultery or concubinage with the spouse of the testator; Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; 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; Any person who falsifies or forges a supposed will of the decedent.

Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue o There are 3 grounds given: 1) Abandonment of the child 2) Inducement of a daughter to lead a corrupt or immoral life 3) Attempt against a daughter’s virtue o All these 3 grounds are also grounds for disinheritance of parents or ascendants under Art920. The same rules apply.

2.

Person convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants o Also a ground for disinheritance under Art919. The same rules apply.

3.

Person who accused the testator of a crime for which the law prescribed imprisonment for 6 years or more, if the accusation has been found to be groundless o Also a ground for disinheritance under Art919. The same rules apply.

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 o One requisite of this ground for disqualification makes this paragraph nonoperative – a legal obligation to make an

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SUCCESSION REVIEWER accusation. There is no such obligation under the present law. o However, the Requisites of this paragraph are – a) The heir has knowledge of the violent death of the decedent b) The heir is of legal age c) The heir fails to report it to an officer of the law within a month after learning of it d) The authorities have not yet taken action e) There is a legal obligation for the heir to make an accusation. 5.

Person convicted of adultery or concubine age with the spouse of the testator o Also a ground for disinheritance under Art919. The same rules apply.

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 o Also a ground for disinheritance under Art919. The same rules apply.

7.

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.

Person who falsifies or forges a supposed will of the decedent

• EFFECT OF UNWORTHINESS



Unworthiness gives rise to total disqualification, i.e. the unworthy heir is incapacitated to succeed from the offended party by ANY FORM OF SUCCESSION.



Thus, unworthiness and disinheritance have identical effects. Unworthiness is disinheritance imposed by law.  That unworthiness deprives the unworthy heir even of the legitime is clear from Article 1035.

Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. • Restoration to Capacity – the unworthiness is set aside and the unworthy heir restored to capacity in 2 ways: 1. A written condonation, or 2. The execution by the offended party of a will with knowledge of the cause of unworthiness.

• Question – regarding the second mode, is it enough that the offended party execute a will with knowledge of the existence of the cause of unworthiness? o Balane says that the better opinion is that it is NOT enough, the will must either institute the unworthy heir or restore him to capacity.

• Common Grounds for Unworthiness and

Disinheritance: Conflicting Modes of Lifting Disqualification [Articles 1033 and 922] A.Most of the grounds for unworthiness are also grounds for disinheritance under Art1032.  There is no problem if the offended party does not choose to disinherit the offending heir, because then only the rules of unworthiness will operate.



Should the offended party, however, elect to disinherit the offender, the 2 set of rules on disinheritance and unworthiness would overlap.  The problem then arises: HOW IS THE DISQUALIFIED HEIR RESTORED TO CAPACITY?



Under the rules on disinheritance, a subsequent reconciliation is enough (Art922); under those on unworthiness, either a written pardon or a subsequent will is required.  Supposing that there is a reconciliation but nothing in writing, will it be correct to conclude that the heir is restored to capacity under the rule on disinheritance but stays disqualified under the rule on unworthiness?

 Balane says this seems unacceptable because that would make the rules on unworthiness [which is by operation of law and is only the implied will of the offended party] prevail over those on disinheritance [which is his express will] B. THUS, the most acceptable reconciliation seems to be the following: 1. If offended party DOES NOT MAKE A WILL subsequent to the occurrence of the common cause – apply article 1033, unworthiness sets in ipso facto and written condonation is necessary to restore capacity. 2. If offended party MAKES A WILL subsequent to the occurrence of the common cause – a. If he knew of the cause i. If he disinherits – art922, disinheritance is ineffective. ii. If he institutes or pardons the offender – offender restored to capacity.

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If will is silent – this is disputed. But the better opinion is that the unworthiness stays. b. If he did not know of the cause – unworthiness stays

Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. • When Capacity is to be Determined A. General Rule – the time of the decedent’s death o Because that is when successional rights vest. B.

If institution is subject to suspensive condition – 1. Time of the decedent’s death AND 2. Time of the happening of the condition

C.

If final judgment is a requisite of unworthiness – at the time of final judgment.

in intestate succession the person represented may have been entitled to.  The first paragraph of the article should not be taken to imply that representation is confined to the legitime. • Representation in the Collateral Line  If the unworthy heir is a brother or sister, his children [nephews and nieces of the decedent] will represent under art972 par2. • Second Paragraph – Articles 225-226 of the Family Code should be read together with the second paragraph of this article – A. As to usufruct – the prohibition in this provision has become unnecessary because of Art226 par2 of the Family Code. B. As to administration – the disqualification remains, and this right shall be exercised either by a judicially appointed guardian or those vested by law with substitute parental authority under Art216 of the Family Code.

Art. 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. • Good Faith of Transferee as Determining Factor of Validity  The validity of the alienation is determined by the good faith or bad faith of the transferee, not of the transferor [the excluded heir]



Art. 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. • Representation in Unworthiness  Unworthiness is one of the 3 occasions for representation to operate. • Extent of Representation  Representation in unworthiness [as also in predecease and disinheritance] extends not only to the legitime but also to whatever portion

For the transferee to be in good faith, he must have acquired the thing for value and without knowledge of the defect of the transferor’s title.  Thus, a donee cannot claim the benefit of this provision, since he did not acquire for value.

• Note that in cases of valid alienations by the disqualified heir, the rightful heirs are not without a remedy: they may go after the disqualified heir for damages.

Art. 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate.

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SUCCESSION REVIEWER • The right of reimbursement granted by this article to the excluded heir is irrespective of his bad faith because the expenses referred to in this article are necessary expenses which have to be reimbursed even to a possessor in bad faith [under Articles 443 and 546 par1]

Art. 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together it its accessions. He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. • The disqualified heir, referred to in this article, who took possession of the hereditary property, is a possessor in bad faith, because he took possession “disregarding the provision stated in the preceding articles.” • Hence, the law applies to him the rules on possession in bad faith: 1. The obligation to return, with accessions 2. Liability for fruits which were received and could have been received. • These are the same rules laid down in Art549. • Period for action to recover – Under Art 1040, 5 years.

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. • National law of decedent governs capacity – note that it is the national law of the DECENDENT and not that of the heir that governs the capacity to succeed. • This is the same principle as Art16 par2. Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession.

•5

years prescriptive period – applies both to the declaration of incapacity of the heir and the recovery of the inheritance or portion thereof wrongfully possessed by the disqualified heir. • In effect, this is a special prescriptive period for this action. It is an exception to the prescriptive periods for recovery of movables [8years] and of immovables [30years] laid down respectively in Articles 1140 and 1141.

SECTION 3. ACCEPTANCE AND REPUDIATION OF THE INHERITANCE Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. • Acceptance of Inheritance a Free Act  The acceptance of property through succession – whether in the form of a legitime, testamentary succession or intestacy – is, like the acceptance of a donation, essentially free and voluntary.



No one can be required to accept a benefit: Non potest liberalitas nolenti adquiri. • The following articles lay down the requirements for acceptance and repudiation. It should be noted that the rules for acceptance are much more LIBERAL than those for repudiation. This is because acceptance is beneficial whereas repudiation is prejudicial to the successor.

Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. • This has the same underlying philosophy as Art777. The moment of death is the time succession vests. • RETROACTIVITY – A. Of Acceptance – the successor will be deemed to have owned and possessed the property from the precise moment of the decedent’s death. This rule has consequences with respect to acquisitive prescription, capacity to succeed, representation, etc. B. Of Renunciation – the renouncer is deemed never to have owned or possessed the property. Consequently, the substitute, co-heir or intestate heir who gets the property in default of the renouncer is deemed to have owned and possessed it from the moment of the decedent’s death. C. Conditional Institutions – the principle of retroactivity is not overridden even if the institution

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SUCCESSION REVIEWER is subject to a suspensive condition. Upon the happening of the condition, the property passes to the heir but with retroactive effect. This is the same principle enunciated in conditional obligations [Art1187]. Similarly, if the condition does not happen, the property goes to the appropriate successor, with the same retroactive effect.

1. These authorized individuals can only accept, not reject the grant. 2. The persons selected as qualified recipients are, for their own part, free to accept or renounce the benefit.

• However, for conditional institutions, the provisions of Art880 should be complied with, to wit, the property should be placed under administration during the interim.

1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary.

Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance.

Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government.

• Acceptance or renunciation must be made knowingly. Unless the successor has knowledge of the two things mentioned in this article, his acceptance or renunciation is not effective.

Art. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. • Requirement for Personal Acceptance or Renunciation  Capacity to act is required for personal acceptance or renunciation. • Acceptance or Renunciation on behalf of minors or other incapacitated parties



Minors and other capacitated parties may accept or renounce only through their legal representatives. However, for renunciation there is the added requirement of court approval. The rules for renunciation are stricter than those for acceptance. • Acceptance of Testamentary Grants to the Poor  The persons empowered in Art1030 to select the recipients of testamentary grants to the poor in general are likewise empowered to accept on their behalf. 

Art.

• These provisions lay down rules similar to those concerning acceptance or renunciation on behalf of minors and incompetents. The legal representatives may accept or renounce the testamentary grant on behalf of the entity represented, but for renunciation, court approval is, additionally required.

Art. 1047. A married woman of age may repudiate an inheritance without the consent of her husband. • Acceptance or renunciation by a Married person  There is no suggestion in this article that a married man of age does not have the capacity to renounce without his wife’s consent.  The rule is more accurately worded as follows – A married person of age and not incapacitated for any reason may accept or renounce an inheritance without his or her spouse’s consent.

Art. 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. • Capacity of Deaf-mute to accept or renounce – this article must be correlated with Art1327, which provides: Art. 1327. The following cannot give consent to a contract: (1) Unemancipated minors; (2) Insane or demented persons, and deaf-mutes who do not know how to write.

Note that:

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SUCCESSION REVIEWER • Thus, a deaf-mute who can read and write has contractual capacity, and can accept or renounce on his own behalf.

B.

• However, an illiterate deaf-mute is incompetent and the rules on acceptance and renunciation through a representative apply. [Art1044]

Art. 1049. Acceptance may be express or tacit. An express acceptance must be made in a public or private document. A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. • KINDS OF ACCEPTANCE A. Express 1. 2. B. Tacit C. Implied [Art1057]

Public Documents or Private Writing

Art. 1050. An inheritance is deemed accepted: (1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs; (3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. • TACIT ACCEPTANCE  Inferred from acts revealing an intent to accept. In general, a tacit acceptance is inferred from acts of ownership performed by the heir over the property.



The enumeration in this article is illustrative but not exclusive. • Instances of Tacit Acceptance A. Par1 – Onerous or gratuitous conveyance in favor of one, some or all of his co-heirs or to a stranger.

This is an act of ownership, which necessarily implies that the heir has accepted the inheritance. Par2 – Gratuitous renunciation in favor of one or some of his co-heirs. This is not in fact a renunciation but a conveyance in favor of the coheirs specified. It partakes of the nature of donation and therefore must conform to the prescribed form of donations under Arts 748-749.  If the gratuitous “renunciation” is in favor of ALL the heirs but in proportions DIFFERENT from those in which they would receive by accretion, it is still a conveyance and must be treated as a tacit acceptance.  A fortiori, if the renunciation in favor of one or some of the co-heirs is for an onerous consideration, there is an acceptance.

C.

Par3 – Onerous renunciation in favor of all the coheirs indiscriminately; this is not in fact a renunciation but a sale f his portion and therefore constitutes a tacit acceptance.  Gratuitous renunciation in favor of the coheirs indiscriminately – this is a true renunciation and cannot be treated as a tacit acceptance. Indiscriminate renunciation means a renouncement, gratuitously made, in favor of all the coheirs who would get the renounced portion by virtue of accretion.  The same rule applies even if the part renounced in this manner is the legitime, notwithstanding that there is no accretion in the legitime, as long as the renunciation is indiscriminate.

Art. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. • FORMS OF RENUNCIATION A. Public or Authentic [genuine] Instrument B. Petition filed in the Settlement Proceedings • Form of renunciation stricter – the law has stricter requisites for renunciation, since it is not beneficial to the heir.

Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should

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SUCCESSION REVIEWER there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong.

decedent whose inheritance the predecessor of the heirs was unable to accept or renounce?

• This is an instance of accion pauliana, which is the right

given to creditors to impugn or set aside contracts, transactions or dispositions of their debtors which will prejudice or defraud them. • The same principle is expressed in Art1177 and Art1313 of the Civil Code. Art. 1177. The creditors, after having pursued the property in possession of the debtor to satisfy their claims, may exercise all the rights and bring all the actions of the latter for the same purpose, save those which are inherent in his person; they may also impugn the acts which the debtor may have done to defraud them. Art. 1313. Creditors are protected in cases of contracts intended to defraud them.

• The right of the creditor to accept the inheritance in the name of the debtor extends only to the amount or value necessary to satisfy the credit. Any amount in excess of that may be validly renounced by the debtor-heir.

Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. • This rule is a consequence of the principle that the rieght of succession vests at the moment of death. Therefore, the right of the heir who dies before accepting or renouncing is already vested and is transmitted to the heir’s heirs. • The right to the inheritance itself forms part of the inheritance of the heir and therefore, the heir of the heir can exercise the right granted by this article only if he [the heir’s heir] accepts his own predecessor’s inheritance. If he renounces, obviously he cannot exercise this right.

Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. • If there are several heirs, their right to accept or right corresponds to the aliquot share to which they are entitled. • Thus, if X dies and Y, his heir, himself dies before accepting or renouncing the inheritance, leaving A, B and C as his own heirs – A, B and C each has the right to accept or renounce his corresponding 1/3 interest in whatever Y was entitled to inherit from X. • Question – should one or more of the heirs renounce, to whom will the repudiated portion go? To the ones who accept, by accretion? Or to the intestate heirs of the

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. • This article governs the situation when a person is BOTH a testamentary heir [or legatee or devisee and an intestate heir], with respect to the same inheritance. • RULES A. If he renounces as testamentary heir [or legatee or devisee] – he is deemed to have renounced as intestate heir as well. B. If he renounces as intestate heir without knowledge of his being a testamentary heir [or legatee or devisee] – he is NOT deemed to have renounced as testamentary heir and may therefore accept or renounce separately in the latter capacity.

• Rationale

– the testamentary disposition is the express will of the testator, whereas intestacy is only his implied will. One who renounces the express will is deemed to have renounced the implied also, but not the other way around.

• Question

– supposing the heir renounces as intestate heir with knowledge of his being testamentary heir, may he accept in the latter capacity? Balane says YES, in light of the rationale of the rule.

• NON-APPLICABILITY OF RULE TO LEGITIME  In view of the rationale of the rule, should the heir be simultaneously a compulsory heir and a testamentary heir, he can accept either or both.



The legitime passes not because of any implied will or wish of the decedent but by strict operation of law, irrespective of the decedent’s wishes. Thus, the term ab intestate in this article refers solely to intestate succession.

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SUCCESSION REVIEWER  To the same effect is the rule laid down in Art955 par2, regarding a person who is simultaneously a compulsory heir and a legatee or devisee.

- The petitioner Maria Socorro is a daughter of Antonio Avelino, Sr. and Angelina Avelino.

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-

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Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will appears. • EXCEPTIONS TO THE RULE OF FINALITY OF ACCEPTANCE OR RENUNCIATION A. Vitiated Consent – the factors are: 1. Violence 2. Intimidation 3. Undue Influence 4. Mistake 5. Fraud B. Appearance of an unknown will – this applies if the newly-discovered will is subsequent to any will which may have formed the basis for the acceptance or renouncement. The new will [assuming it is valid and admitted to probate] reopens the whole affair and will call for a new acceptance or renunciation.

Art. 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance. If they do not do so within that time, they are deemed to have accepted the inheritance. • This is IMPLIED ACCEPTANCE – the failure to signify the acceptance or renunciation within the 30-day period specified by this article

• Qui tacet consentire videtur – silence means yes. CASES FOR ARTICLES 995-1002 Avelino v. CA

The private respondents are Angelina, Maria’s siblings, and Sharon, the 2nd wife of Antonio, Sr. Maria filed a petition with the RTC-QC for issuance of letters of administration of the estate of Antonio, Sr., who died intestate. She asked that she be appointed administrator of the estate. The private respondents filed an opposition by filing a motion to convert the petition for issuance of letters of administration to an action for judicial partition. Maria duly opposed. RTC granted the motion of the private respondents. A subsequent MR by Maria was denied. Hence, this petition alleging that the judge committed grave abuse in granting the motion.

WON the RTC Judge was in error in granting the motion and converting the petition for issuance of letters of administration to an action for judicial partition. - NO. When a person dies intestate, or if testate, failed to name an executor in his will or the executor so named is incompetent, or refuses the trust, or fails to furnish the bond required, the general rule is that the estate shall be judicially administered and the court shall appoint a qualified administrator. - The exception to the above rule is found in Secs. 1 and 2 of Rule 74 , which does not require the appointment of an administrator in cases of (1) extrajudicial settlement by agreement between the heirs, and (2) summary settlement of estates of small value. - Sec. 1 of Rule 74 allows the heirs to divide the estate among themselves without need of delay and risks of being dissipated. - When a person dies without leaving pending obligations, his heirs, are not required to submit the property for judicial administration, nor apply for the appointment of an administrator by the court.

Nazareno v. CA - The case involves the sale of Maximino SR and his wife of 6 lots to one of their daughters, Natividad, who later on sold the same to her brother, Maximino Jr. - In one of the said lots was where respondent in this case Romeo and his wife and one of the petitioners Maximino Jr are residing. Upon knowing of Maximino Jr’s ownership over the said land, the spouses locked him out of the house. - Romeo then filed this present case on behalf of the estate of Maximino Sr. for the annulment of the sale of the lot in question. - Natividad eventually sold the lots to an innocent purchaser for value. W/N the sale was valid. - SC held that it was valid because: - 1. The lone testimony of Romeo that the said lots were sold to Natividad for no consideration was found to be credible by the TC and CA. - 2. The fact that the document was notarized is not a guarantee of the validity of its contents. - 3. The judgment in a previous case vesting ownership in Maximino Jr. and which was filed by Romeo and his wife

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SUCCESSION REVIEWER

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does not bind the estate of Maximino Sr. in this case which also has a right to recover properties which were wrongfully disposed. 4. The TC and CA found that the Nazareno spouses transferredtheir properties to their children by fictitious sales in order to avoid the payment of inheritance taxes. 5. Any void contract may be questioned by any party affected by it; hence, even if the estate of Maximino Sr. alone contests the validity of the sale, the outcome of the suit will bind the estate of his wife as if no sale took place at all. 6. It cannot be denied that the spouses intended to give the 6 lots to Natividad as the latter is the only female and unmarried member of the family. Thus, since an implied trust was created, the lots are therefore subject to collation. Every compulsory heir who succeeds with other compulsory heirs must bring into the mass of the estate any property or right which he may have received from the decedent, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition.

SECTION 4. – EXECUTORS AND ADMINISTRATORS Art. 1058. All matters relating to the appointment, powers and duties of executors and administrators and concerning the administration of estates of deceased persons shall be governed by the Rules of Court. • With reference to Rules 78-90 of the Rules of Court.

Art. 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for that purpose, the provisions of Articles 2239 to 2251 on Preference of Credits shall be observed, provided that the expenses referred to in Article 2244, No. 8, shall be those involved in the administration of the decedent's estate.

• In relation to Articles 2239-2251 and 2244 Art. 1060. A corporation or association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward.

• Rule 78 of the RoC governs the issuance of letters testamentary and of administration and should be read together with this article.

SECTION 5. – COLLATION • THREE MEANINGS OF THE TERM “COLLATION” AS USED IN THE FF ARTICLES: 1. Collation as COMPUTATION – [add] o This is a simple accounting or arithmetical process, whereby the value of all donations inter vivos made by the decedent is added to his available assets in order to arrive at the value of the net hereditary estate. o Article 908

2.

Collation as IMPUTATION – [subtract] o This is the process by which donations inter vivos made by the decedent are correspondingly charged either to the donee’s legitime or against the disposable portion. o Articles 909 and 910 3. –

Collation as RETURN

o This

takes place when a donation inter vivos is found to be inofficious [i.e. exceeds the disposable portion] and so much of its value as is inofficious is returned to the decedent’s estate to satisfy the legitimes. o Articles 909 and 910 also provide for this.

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. • This article refers to the COMPUTATION of all donations inter vivos made by the decedent, for the purpose of determining the value of the net estate.  This is exactly the same thing that is referred to in Art908 par2. The process is purely arithmetical, and is merely paper computation. • What Should be Included in the Computation

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

ALL donations inter vivos – whether made to compulsory heirs or to strangers, should be included in the computation of the net hereditary estate. This is the 3rd step in the process of computing the net hereditary estate under Art908.

B.

Donations inter vivos to strangers o Imputed to the free portion

C.

Instances when donations inter vivos are to be imputed to the FREE PORTION 1. When made to strangers 2. When made to compulsory heirs, and the donor so provides that it will be imputed to the free portion 3. When made to compulsory heirs who renounce the inheritance 4. When in excess of the compulsory heir’s legitime, as to the excess.

• Value to be Computed  Only the value of the property donated AT THE TIME THE DONATION WAS MADE is to be computed since in donations ownership transfers at the time the donation is perfected.  Thus, any subsequent increase in value is for the donee’s benefit, and any decrease is for his account. • Purpose of the Article is to determine the amount of the net estate so as to ensure that the legitimes are not impaired.

Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. • Collation in the sense of IMPUTATION  That donations inter vivos made by the decedent to a compulsory heir are, as a general rule, imputed to or charged against the heir’s legitime.

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. • Collation in the sense of IMPUTATION. • This article applies to Donations Mortis Cause [the previous article applies to donations inter vivos]. Therefore, here the testamentary disposition is as a general rule, not deemed as an advance on the legitime.

• RULE ON TESTAMENTARY DISPOSITIONS TO COMPULSORY HEIRS

 • RULES ON IMPUTATION OF DONATIONS INTER VIVOS: A. Donations inter vivos to compulsory heirs o GR: Should be imputed to the heir’s legitime and is considered as an advance on the legitime. o EXCEPTIONS – 1. If the donor provides in the Deed of Donation otherwise 2. If the donee renounces the inheritance, because in this case the donee gives up his status as a compulsory heir and therefore cannot be considered as one. o In case either exception applies, the donation will have to be imputed to the FREE PORTION. o Question – supposing the compulsory heir received a donation inter vivos from the decedent but the value of the donation exceeds the donee’s legitime? The donation will be imputed to the donee’s legitime to the extent of the lefitime’s value and the excess, to the free portion.

GR: they should NOT be imputed to the legitime but to the free portion. Hence, the compulsory heir receives the testamentary disposition in addition to his legitime.  EXCEPTION: if the testator provides otherwise. Then the testamentary disposition in favor of the heir WILL be MERGED with his legitime. That will make the disposition illusory.

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 coheirs is not prejudiced. • Collation in the sense of IMPUTATION • This article applies to 2 instances:

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SUCCESSION REVIEWER 1. When the grandchildren of the decedent inheriting by representation concurrently with children of the decedent [uncles and aunts of the grandchildren] who are inheriting in their own right, or 2. The grandchildren inherit by representation with other grandchildren [cousins of the grandchildren]. • What the Grandchildren have to Collate or Impute to the Legitime A. Whatever the parent whom they are representing would have been obliged to collate; and B. Whatever they themselves have received from the grandparent by gratuitous title, subject to the same rules and exceptions in Art1062.

Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. • Collation in the sense of IMPUTATION. • A person should not collate what his parent gave to his child since he is not the recipient of the conveyance. • Against what part of the estate the conveyance is imputable – the donation to the grandchild should be imputed to the FREE PORTION, since the donation is to a stranger.

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. • Collation in the sense of IMPUTATION

• RULES ON DONATIONS TO THE SPOUSE OF THE CHILD A. Donations made by a person to his son-in-law or daughter-in-law are SEPARATE property of the donee and should not be imputed to the legitime of the donor’s child [the donee’s spouse]. The donation is one made to a stranger. B. If the donation is made to the spouse JOINTLY, one-half belongs to the donor’s child and should be treated in accordance with Art1062 and the other half is the property of the donor’s son or daughter-in-law and should be treated as a donation to a stranger. o This presumption of equality of aliquot shares [as to the ½ division between

spouses] will yield to a different designation by the donor. • These rules are consistent with the Family Code – A. In ACP – Article 92 par. 1 Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property;

B.

In CPG – Art109 (2) and Article 113. Art. 109. The following shall be the exclusive property of each spouse: (2) That which each acquires during the marriage by gratuitous title; Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper.

Art. 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. • Collation in the sense of COMPUTATION [add]. • The expenses mentioned should not even be included in the computation of the decedent’s estate. This is in effect a qualification of or an exception to the rule in Art1061. The reason is that it would be extremely impractical or impossible to make an accounting of all these items. • Justice Hofilena says these are not really donations but expenses. According to Tolentino, educational expenses in the elementary and high school levels are considered as expenses and not subject to collation, but higher levels of education should be collated. • “Support” in this article has a restrictive meaning, it DOES NOT include expenses for the recipient’s professional, vocational or other career because these are items governed by Art1068.

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

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o The question is why should the gift be reduced as inofficious just because it exceeds 1/10 of the free portion? o SO, Manresa interprets the article to mean that the gift will be imputed to the free portion to the extent of 1/10 of the free portion. Beyond that value, the excess will be imputable to the recipient’s legitime.

lived in the house and company of his parents shall be deducted therefrom. • Collation in the sense of IMPUTATION

• This article states that as a general rule: o The expenses incurred by the parents for the child’s professional, vocational or other career [i.e. courses beyond the secondary level] are an exception to the rule laid down in Art1062. o Hence, these expenses, if not inofficious, although donations, should NOT be charged against the recipient’s legitime but against the FREE PORTION, unless the parents provide otherwise. • Contrary Provision by parents o Should the parents provide otherwise, the child is entitled under this article to deduct from the said amount the sum corresponding to what his parents would have spent on him had he stayed at home and loafed.

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. • Collation in the sense of IMPUTATION • The items under this article constitute donations by the parent to the child and therefore should be treated like other donations to compulsory heirs under art1062.

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.

• This article applies only to wedding gifts given by parents or ascendants to children or descendants.

• Scope and Operation of this Article – A. The article covers only wedding gifts consisting of jewelry, clothing and wedding outfit. According to Manresa, outfit includes the items necessary for an individual’s personal use. It does not include other property, whether real or personal, that would be governed by Art1062. B.

Literally construed, this article seems to state that the value of such wedding gifts cannot go beyond 1/10 of the free portion of the donor’s estate. Any excess will be considered inofficious and should be returned in the same manner and at the same time as other inofficious donations. It further seems that as o the allowable 1/10, this is to be imputed to the free portion.

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. • Collation in 2 senses: COMPUTATION & IMPUTATION • What value is to be computed and imputed: o Only the value of the thing donated at the time the donation was made should be considered in the computation of the donor’s estate. o Similarly, only the thing’s value at the time the donation was made should be impited whether to the legitime or to the free portion. • Reason – any appreciation or depreciation of the thing after that time should be for the donee’s account, since the donation transfers ownership to him.

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. • Collation in 2 senses: COMPUTATION & IMPUTATION • JOINT DONATIONS



The 1st sentence of this article presupposes either a regime of ACP or of CPG between the donor spouses. A joint donation by them will be treated, upon dissolution of the property regime, as pertaining in equal shares to the estate of each. • DONATIONS BY ONE PARENT ALONE  Such a donation will be of separately-owned property and should be treated as such.

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

The entirety of the fruits and interests shall pertain to the compulsory heir, only if the donation is TOTALLY inofficious.

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. • Collation in the sense of IMPUTATION • This article requires not only equivalence in amount, but as far as possible, also in the kind of property received. This of course will yield to a different agreement among the heirs.

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. • This article provides for the closes analogue to strict equivalence, in case there are not enough of the same things to distribute among all. • Again, this will yield to a contrary agreement among the heirs.

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. 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. • Collation in the sense of RETURN • Rationale  If any donation turns out to be inofficious, then the obligation to return it to the estate arises as of the time the succession vests, which is the time of the decedent’s death, because it is from that time the compulsory heir’s right to the inheritance becomes absolute. From that time therefore the compulsory heir is entitled to the fruits. • Extent of Right to Fruits



If the donation is only partially inofficious, the right to the fruits and interests shall be PRORATED between the compulsory heir and the donee, in proportion to their respective interests over the property.

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 co-heirs 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. • Collation in the sense of RETURN

• The

rules in this article govern necessary [par1], useful [par2] and ornamental [par3] expenses incurred by the donee who is now obliged to return.

• TOTAL OR PARTIAL RETURN  The extent of the application of the rules in this article depends on the extent of the obligation to return, thus:

1.

If the thing has to be returned in its ENTIRETY because the donation is totally inofficious – a. Necessary expenses – reimbursement must be to the full extent of the expenses incurred. This is in relation to Art546 par1: Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor.

b.

Useful expenses – reimbursement must be to the full extent provided that the improvement is still in existence. This is in relation to Art546 par2: Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses

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c.

Ornamental expenses – NO reimbursement demandable, but the right to removal is granted if no injury to the estate will be cause. This is in relation to Article 548: Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended.

2.

If the thing has to be returned only in PART because the donation is only partially inofficious a. Necessary and useful expenses – the reimbursement is also partial, in proportion to the value to be returned. b. Ornamental expenses – the same rule as in total return, unless the property is physically divided and the ornament happens to be located in the portion assigned to the donee, in which case he will have all the rights of ownership.

• Confusion in terminology – the situation treated in this article is really a case of reduction of inofficious donations and the rules set forth in this article really belong in the provisions on inofficious donations in Articles 910, 910 and 911. The confusion would have been avoided if the Code had not insisted on using the term collation so variedly.

Art. 1077. Should any question arise among the co-heirs 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. • The division and distribution of the estate can be made partially, should there be controversy as to the inclusion of certain items in the computation of the estate’s value or the imputation of the heirs’ shares. • The distribution can proceed on the items that are not controverted.

CASES FOR ARTICLES 1058-1077 Zaragoza v. CA - Flavio Zaragoza died intestate leaving four children: Gloria, Zacariaz, Florentino and Alberta.

- Alberta Zaragoza Morgan, the youngest of the siblings, filed an action for the delivery of her inheritance shares namely Lots 943 and 871. - According to Alberta, their father already partitioned his estate while he was still living and was able to convey these parcels of land to his three children through Deeds of Sale although, the contracts were made without consideration. - Unfortunately, Alberta's share could not yet be conveyed to her because her marriage with an American, converting to her to an American citizen, disqualified her to own lands, the only exception being those acquired through succession. Alberta now contends that it was the intention to give to her Lots 943 and 871 in accordance with the partition earlier executed Florentino Zaragoza and his spouse, as the respondents, denied that there was any partitioning of the estate of Flavio during his lifetime. - In fact, Lot 871 is still in the name of Flavio and that Lot 973 has already been sold to Florentino by the decedent for a valuable consideration. - The RTC ruled that Flavio partitioned his properties during his lifetime and that there is an intention to convey Lot 871 to Alberta. - However, there is a valid title over Lot 943 and the complaint in respect thereof should be dismissed. Whether or not a Partition inter vivos is valid - The SC is convinced by the documentary and testimonial evidence thus presented that indeed a partition over the estate of Flavio Zaragoza was executed during the latter's lifetime. It is in this partition that Alberta anchors her claim for the disputed lots as in fact, it was admitted by the respondents that Lots 943 and 871 were supposedly the inheritance shares of youngest sibling. - As to the validity of this partition, the SC held a partition inter vivos is valid although the same should not encroach upon the legitimes. - As provided for in Art 1061, collation must be resorted to in order to determine whether what has been received from the decedent, during the lifetime of the latter by way of donation or any gratuitous title, has impaired the legitime. - Unfortunately, in this case, collation can not be done as not all the indispensable parties are impleaded in the case. Hence, The SC held that the petition must therefore be dismissed without prejudice to the institution of a new proceeding where all the indispensable parties are present for the rightful determination of their respective legitimes. Whether or not the validity of the Deed of Sale over Lot 943 can be resolved in an action for delivery of share - The validity of the Deed of Sale could not be collaterally attacked in this petition pursuant to the provisions of PD 1529. - The SC held that the certificate of title, in the absence of fraud, is the evidence of title real interest of the owner. Once registered, the same could not be modified or altered except in limited circumstances, except in some proceeding allowed by law. - Art 1061 - Collation must be resorted to in order to determine whether what has been received from the decedent, during the lifetime of the latter by way of donation or any gratuitous title, has impaired the legitime.

Adan v. Casili

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SUCCESSION REVIEWER - Felix Adan brought an action for the judicial partition against his sister Victoria and the latter’s husband of four (4) parcels of land left by their deceased mother. - In opposition to the judicial partition, the defendants averred that said lots were ceded by their mother to Victoria as her share of the inheritance; and that the Felix has received more than his share consisting of money, expenses in his professional study of surveying, livestock, palay, and real property. - The lower court found that the donation of the parcels of land to Victoria were unsubstantiated by any written document but that Felix had indeed received various sums during the lifetime of their mother in palay, livestock and expenses for his education amounting to around P3000, more than the value of the lots in dispute, thus absolving Victoria and her husband. Whether or not Felix is entitled to any share in the four (4) parcels of land left by their mother in the possession of Victoria. - NO. - See Articles 1041 and 1042 in the next column. - Since the career of surveyor is a professional one, and since the expenses incurred by plaintiff's mother in giving him that career encroached upon the legitime, it is proper to collate one-half of the amount spent by her for him during the two years he studied surveying, the other half being considered as the amount which the plaintiff would have spent if he had lived in the house and company of his mother. - Thus, of the P1,000 spent on Felix’s education, P500 is chargeable against his legitime, to be included in the value of the 12 carabaos, 300 cavans of palay, and cash of P1,100 taken by Felix from his mother’s trunk. - The value of the four (4) parcels of land in the possession of Victoria, less the funeral expenses, is less than the total amount received by Felix, thus he is no longer entitled to the said lots. - Compensation operates as to the fruits received by Victoria and her husband from the said lots as against the fruits or interests received by Felix from the money and property he had received. - Under the article 1041 of the Civil Code, allowances for support, education, attendance in illnesses, even though unusually expensive, apprenticeship, ordinary equipment, or customary presents are not subject to collation. - But article 1042 of the same Code provides that expenses which may have been incurred by the parents in giving their children a professional or artistic career shall not be brought to collation unless the parent so orders or they encroach upon the legitimate. - It also provides that in cases in which it is proper to collate them, the money which the child would have spent if it had lived in the house and company of its parents shall be deducted therefrom.

Dizon Rivera v. Dizon

SECTION 6. – PARTITION AND DISTRIBUTION OF THE ESTATE

SUBSECTION 1. - Partition • The immediate effect of the decedent’s death is the vesting of the successional rights of the successors, because the rights to the succession are transmitted from the moment of the death of the decedent. • What the successors acquire vested rights over is the net estate and the net estate is what remains after all the unpaid debts of the decedent are paid, and the value of all the donations inter vivos is added. Thus, debts first have to be paid; it is possible, if the debts exceed the assets, that after the debts are paid, there will be no estate to speak of. • If however the decedent’s gross assets exceed his liabilities, or if there are inofficious donations to be returned, his net estate passes to his successors [heirs, legatees, devisees] at the precise moment of death. • The estate however, is a mass of properties, usually consisting of various items. The immediate effect therefore, of the decedent’s death as far as successional rights are concerned, is a CO-OWNERSHIP of the heirs over the entire mass. The legatees and devisees will acquire a right to the specific items given to them, assuming the legacies and devises are not inofficious. • The actual partition of the estate among the heirs terminating the co-ownership can be done basically through 2 methods: 1. Extrajudicial agreement among the heirs, or 2. Judicial proceedings • The sequence may be outlines as: 1. Upon decedent’s death – co-ownership of heirs over net hereditary or partible estate 2. Subsequent Partition a. By extrajudicial agreement under Rule 74 Sec1 of the ROC b. Through judicial order in appropriate proceedings under Rule 90 RoC • Actually, the judicial proceeding in which the partition is ordered comprises the entire settlement of the estate of the decedent, covered by Rules 73-90 of the RoC • In this part of successional law, i.e. the partition of the estate, substantive law and procedural law intersect.

Art. 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. Art. 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.

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SUCCESSION REVIEWER • Partition ends the co-ownership among the co-heirs as to the thing partitioned.

held that even an oral partition is valid. [Chavez v. IAC] ii.

• KINDS OF PARTITION A. Actual – physical division of the thing among the co-heirs B. Constructive – any act, other than physical division, which terminates the co-ownership [such as sale to a 3rd person – in relation to Articles 1082 and 1086].

 Alsua

Art. 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 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. PARTITION BY CAUSANTE • The causante [decedent] can himself effect the partition of his estate. 1. Nature of Partition by Causante – a partition made by the causante has the ff. characteristics: a. It takes effect only upon death, b. It is revocable as long as the causante is alive; hence the causante can change or modify it, or even rescind it during his lifetime. o These characteristics stem from the fact that the partition is based on succession as the mode of transfer and succession is necessarily mortis causa. Succession, in our law, cannot take place during the causante’s lifetime; that would be a donation inter vivos, not succession.

2.

How causante may make the Partition –

a. By WILL, or b. By Act Inter Vivos i. Form of Partition

by Act Inter Vivos – there is authority to the effect that a partition inter vivos should be in writing and in a public instrument. [Fajardo v. Fajardo] But in an obiter, SC

In case of a partition inter vivos, must there be a prior will?  Certainly, a mere partition inter vivos which does not observe the formalities of a will cannot by itself, make testamentary dispositions because that would circumvent the requirement that dispositions mortis causa can be made only by means of a will. A person cannot, in the guise of making a partition, make disposition of property to take effect upon his death.  Justice HOFI says that if partition is made by private writing, after which a will is executed, the subsequent will DOES NOT cure the private writing. Therefore, the partition is not effective. –Betts v. CA provides that the partition inter vivos is void even if a subsequent will is executed in conformity with the provisions of the prior partition.

 The

case of Legasto v. Verzosa provides that a mere partition not connected to a will is not binding. The act of disposition has to be by will, but the partition/distribution may be done by will or in writing. Still, it must be pursuant to or connected to a WILL.

3. Possible Effect of Amended Wording of Art1080:  The old Code used the term “testator” while Art1080 used the term “person”. Under the present provision, a partition inter vivos can be validly made even without a prior supporting will, provided that it is not used to make mortis causa dispositions Nothing can take the place of a will to dispose of property mortis causa.  Hence, the only way a partition without a will can be valid is by following strictly the intestate portions provided by law: i.e. the partition should conform exactly to the portions provided by law in intestate succession, for then the causante would not be making testamentary dispositions in the partition – the dispositions would be by virtue of intestate succession. • Limitation on Partition by Causante  The legitimes of the causante’s compulsory heirs cannot be impaired by partition made by him, whether in a will or by an act inter vivos, pursuant to Art904. • Paragraph 2 – Partition to Keep an Enterprise Intact



It seems only a parent is allowed the privilege of this paragraph.

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SUCCESSION REVIEWER  It is understood that this privilege to make the partition in such a way as to keep the enterprise intact can be exercised only if enough cash or other property is available to satisfy the legitimes of the other children. Under no circumstances should the legitimes be impaired.

Art. 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs. The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees.

1ST SEM 2006- 2007 compelling reasons that division should be ordered, upon petition of one of the co-heirs. • Partition Generally a Matter of Right  As a general rule, any co-heir may demand partition at any time. This is the same rule laid down in Art494 par1: Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.

• Mandatary cannot be a co-heir – the reason for this prohibition is to ensure fairness and impartiality.

Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. • CONSTRUCTIVE PARTITION  Partition may be actual or constructive, in relation to Article 1079. This article refers to cases of constructive partition. CASE Tuason v. Tuason & Gregorio Araneta Inc.

Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for

 EXCEPTIONS – despite this imposed indivision, partition may be demanded: 1. When any of the causes for dissolution of a partnership occurs, under Arts. 1830-1831: Art. 1830. Dissolution is caused: (1) Without violation of the agreement between the partners: (a) By the termination of the definite term or particular undertaking specified in the agreement; (b) By the express will of any partner, who must act in good faith, when no definite term or particular is specified; (c) By the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking; (d) By the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners; (2) In contravention of the agreement between the partners, where the circumstances do not permit a

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SUCCESSION REVIEWER dissolution under any other provision of this article, by the express will of any partner at any time; (3) By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership; (4) When a specific thing which a partner had promised to contribute to the partnership, perishes before the delivery; in any case by the loss of the thing, when the partner who contributed it having reserved the ownership thereof, has only transferred to the partnership the use or enjoyment of the same; but the partnership shall not be dissolved by the loss of the thing when it occurs after the partnership has acquired the ownership thereof; (5) By the death of any partner; (6) By the insolvency of any partner or of the partnership; (7) By the civil interdiction of any partner; (8) By decree of court under the following article. Art. 1831. On application by or for a partner the court shall decree a dissolution whenever: (1) A partner has been declared insane in any judicial proceeding or is shown to be of unsound mind; (2) A partner becomes in any other way incapable of performing his part of the partnership contract; (3) A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business; (4) A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him; (5) The business of the partnership can only be carried on at a loss; (6) Other circumstances render a dissolution equitable. On the application of the purchaser of a partner's interest under Article 1813 or 1814: (1) After the termination of the specified term or particular undertaking; (2) At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was issued.

 When the co-heirs agree on indivision for a period not exceeding 10years, renewable for like periods.

Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. • Application of Article – Institutions with a Suspensive Condition • Rationale  The heir instituted under a suspensive condition acquires no rights unless and until the condition happens.



The other heirs not so instituted, however, should not be deprived of their right to demand partition, subject to the obligation to protect the inchoate right of the conditional heir, by furnishing adequate security.

Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. • EQUALITY AMONG CO-HEIRS  Quantitative – the shares of the co-heirs are not necessarily equal in value, but are determined by the law and by will.  Qualitative – whatever the aliquot portions be, however, the law mandates equality in nature, kind and quality, so that if A gets a parcel of rice land, B should also be given one. • EXCEPTIONS / QUALIFICATIONS to the requirement of Qualitative Equality – 1. If the causante has made the partition himself 2. If the co-heirs agree otherwise 3. If qualitative equality is impossible or impracticable.

2. When the Court finds compelling reasons for partition.

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SUCCESSION REVIEWER

Art. 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. • This is another instance of constructive partition: sale of the thing and division of the proceeds among the heirs. This will have to be resorted to if the thing is essentially indivisible or in physical partition will so diminish its value that it becomes unserviceable or useless. • To whom thing may be sold: 1. To a 3rd person, or 2. If none of the co-heirs object, to any one of them who is interested. If more than one are interested in buying, they may buy it jointly and have the proceeds distributed among the others to the extent of their respective shares. But the co-ownership will continue as to the buyers.

Art. 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. • MUTUAL ACCOUNTING

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Upon partition, the co-heirs shall render a mutual accounting of benefits received and expenses, both necessary and useful, incurred by each of them.  Thus, any heir who between the decedent’s death and partition time, received fruits from the estate shall reimburse his co-heirs their respective shares, in proportion to the hereditary interest of each.  Similarly, any heir who incurred necessary or useful expenses on the hereditary estate may demand reimbursement from his coheirs in the same proportion.

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. • Right of an Heir to Convey Share Before Partition  Successional rights vest upon the decedent’s death. Consequently, an heir may dispose of his aliquot share after that time; he may do this gratuitously or onerously. • RIGHT OF REDEMPTION IN CASE OF SALE  In the event any co-heir sells his aliquot portion to a stranger before partition time, this article entitles any co-heir to redeem the portion sold. A. Sale must be to a stranger – a stranger within the meaning of this article is anyone who is not a co-heir. [Basa v. Aguilar] B. When right of redemption may be exercised – the right may be exercised only before partition, not after. [Caro v. CA] • Requirement of Written Notice  The article gives the co-heirs the right of redemption, which can be exercised within one month from written notice to them by the vendor.

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Written notice therefore is required; without it the period does not commence to run. The SC has, as a rule, interpreted this requirement of written notice strictly.

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Garcia v. Calaliman – Written notice is indispensable, actual knowledge of the sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled to written notice to remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that the alienation is not definitive. The law not having provided for any alternative, the method of notifications remains exclusive, though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption.

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This article lays down the same rule contained in the Title on Co-ownership under Art500: Art. 500. Upon partition, there shall be a mutual accounting for benefits received and reimbursements for expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud.

• The

same rule is laid down in Art1620 which applies where the co-ownership covers specific property. While

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SUCCESSION REVIEWER Article 1088 applies where the co-ownership covers the mass of the hereditary estate. But the distinction is academic and the rule is the same. Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one. Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common.

Art. 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. • OBLIGATION OF MUTUAL WARRANTY  Partition among co-heirs imposes upon them the same mutual obligation of warranties imposed among co-owners in general.

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According to Art501: “Every coowner shall, after partition, be liable for defects of title and quality of the portion assigned to each of the other co-owners.”

• When more than one co-owner wish to redeem – implicit

in article 1088 and explicit in article 1620 is that in such case, ALL the co-owners wishing to redeem may do so, but in proportion to each one’s hereditary interest over the mass.

Art. 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated.

• This

is particularly important in case of registered land because the old title has to be surrendered so that a new title in the name of the heir may be issued.

Art. 1090. When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title.

• This article only provides for the right over the document.

• The co-heirs however have the right to have the title divided into individual titles, a separate one for each of the owners to correspond to the separate portions held by them respectively.

SUBSECTION 2. - Effects of Partition Art. 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. • The effect of partition is termination of co-ownership.

• RULE ON WARRANTIES  The applicable rules on warranties are found in Articles 1547-1580 in the title on Sales, insofar as those articles are not inconsistent with the rules given in this subsection.

Art. 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. • Proportional Liability of Co-heirs on Warranty  Burdens should be proportional to benefits. • Insolvency of One of Obligors – should one of the coheirs bound to make good the warranty be insolvent, his portion shall be borne proportionally by all, including the one entitled to the warranty: Example  Co-heirs are A, B, C, D and E in equal shares of P60k each. B claims warranty for the total amount of his share because he was evicted.  A, C, D and E have to contribute P12k each to make good the warranty. Since there was eviction in the amount of P60k, the total value to be partitioned was only P240k, hence P48k each.  Should A be insolvent, his P12k share shall be borne by all the others, including B. Hence, C, D and E have to contribute P3k more, making their individual liability P15k. B receives a

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SUCCESSION REVIEWER total of P45k, having borne his own share of P3k from A’s insolvency.

• EXCEPTION

to right to reimbursement from insolvent obligor: insolvency that is judicially declared, under the Insolvency Law, since judicially declared insolvency extinguishes all obligations.

Art. 1094. An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. Art. 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a coheir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. • Credit Assigned to Co-Heir in Partition  The warranty covers only insolvency of the decedent’s debtor at the time of partition, not subsequent insolvency, for which the co-heir takes the risk.  Foolhardy is the co-heir who will accept a collectible as part of his share in the partition. A credit, even under the best of circumstances, is aleatory.

• The

warranty has a special prescriptive period of FIVE (5) YEARS.

• Bad Debt Assigned to a Co-Heir  A co-heir who accepts a known bad debt as his share is either a fool or a masochist.

Art. 1096. The obligation of warranty among coheirs shall cease in the following cases: (1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired; (2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith; (3) When the eviction is due to a cause subsequent to the partition, or has been

1ST SEM 2006- 2007 caused by the fault of the distributee of the property. • This article enumerates the instances when there is NO MUTUAL WARRANTY. It is not accurate to refer to it as a cessation, since there was none to begin with. These are – 1. Partition by the testator himself – save where the legitime is impaired. 2. Agreement among the co-heirs to suppress the warranty. 3. Supervening events causing the loss or the diminution in value. 4. Fault of the co-heir 5. Waiver

SUBSECTION 3. - Rescission and Nullity of Partition Art. 1097. A partition may be rescinded or annulled for the same causes as contracts. • CAUSES FOR ANNULMENT Art. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties: (1) Those where one of the parties is incapable of giving consent to a contract; (2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud. These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. • CAUSES FOR RESCISSION Art. 1381. The following contracts are rescissible: (1) Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more than one-fourth of the value of the things which are the object thereof; (2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number; (3) Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them; (4) Those which refer to things under litigation if they have been entered into by the defendant

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SUCCESSION REVIEWER without the knowledge and approval of the litigants or of competent judicial authority; (5) All other contracts specially declared by law to be subject to rescission. • Paragraphs 1 and 2 are modified by the following article.

Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. • LESION is economic injury, where the party receives less than he is entitled to receive. Lesion is exceedingly difficult to determine and evaluate and is viewed with increasing disfavor by modern civil law. • Amount of Lesion  The minimum extent of lesion for rescission to be available is ONE-FOURTH or 25%.  Note the slight variation from paragraphs 1 and 2 of Art1381 which specifies MORE than ¼. Evidently, in cases of partition of the inheritance, Art1098 applies.

1ST SEM 2006- 2007 • Prescriptive period of FOUR (4) YEARS – this is the same period laid down in the general rule of rescission of contracts under article 1389.

Art. 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share.

• OBLIGOR’S OPTIONS – it is the co-heir who is sued for rescission who has the option. He has 2 choices: 1. To have a Re-partition, or 2. To indemnify the coheir the amount of the lesion suffered.

• AN EXCEPTION TO THIS ARTICLE IS FOUND IN THE FOLLOWING ARTICLE.

Art. 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. • This article is an exception to the preceding article.

• A partition made by the Testator himself is NOT subject

to rescission even in case of lesion in the amount specified in the preceding article. • EXCEPT in the following cases: 1. Impairment of the legitime [even if the lesion is less than onefourth] 2. Mistake by the testator or vitiation of his intent.

Art. 1100. The action for rescission on account of lesion shall prescribe after four years from the time the partition was made.

Art. 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. • Correlated with the preceding article, this article is unnecessary since anyway it is the party sued who is given the option.

Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. • Incompleteness of the partition is not a ground for rescission. The remedy is a supplemental partition.

Art. 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was

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SUCCESSION REVIEWER bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him.

• This

is NOT preterition under Art854. This is simply an omission of a compulsory heir in the partition, the assumption being something is left for him in the form of an undisposed portion of the estate. The omitted heir simply gets his rightful share [Non v. CA]

• If

the compulsory heir is one in the direct line and is totally omitted from the inheritance, Art854 applies.

Art. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. • This is the reverse of the preceding article. Here an outsider is mistakenly included in the partition. The obvious remedy is to recover the property from him and have it redistributed among the proper recipients.

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a valid will disposing of said estate among his heirs; and if this will be declared null and void, the partition made by the testator in pursuance of its provisions is likewise null and void, for where these provisions cease to exist, the partition made in conformity therewith also becomes null and void, as the cessation of the cause implies the cessation of the effect. And since Sabina, Almadin's will is null and void for lack of the legal requisites, consequently, the partition which she made of her estate among her nieces the defendants-appellants herein, during her lifetime is likewise null and void. ART. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. A testator may, by an act inter vivos, partition his property, but he must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor. In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death.

Tuason v. Tuason

CASES FOR ARTICLES 1078-1105 Legasto v. Verzosa On May 13, 1925, Sabina Almadin executed a will devising certain parcels of land belonging to her, to her four nieces, Maria Verzosa, Oliva Verzosa, Toribia Verzosa, and Ruperta Palma, daughters of her sister Catalina Almadin, designating the parcels to be given to each. On August 8, 1925, Sabina Almadin partitioned her property among her aforesaid sister and nieces, executing separate Deeds of Sale in favor of each of her nieces. The assignees, Maria Verzosa, Toribia Verzosa, Oliva Verzosa, and Ruperta Palma, took possession of their respective parcels thus ceded by Sabina Almadin, and have been cultivating them as exclusive owners thereof. Unfortunately, the will of Sabina was not admitted to probate. A complaint was filed by the administrator seeking delivery of the parcels of land in the possession of Sabina’s nieces. -

As Sabina Almadin's will was disallowed for the reason that it did not contain all the essential requisites provided by law for its validity, can the aforesaid partition of her estate made by said testatrix among her nieces be deemed valid? NO. It is an indispensable condition precedent to a testator partitioning his estate inter vivos that he have made

- The siblings Angela, Nievaes and Antonio Tuason Jr., are co-owners of a land in Sampaloc, Manila, each owning an undivided 1/3 portion. Nieves wanted and asked for a partition of the property, but failing in this, she offered to sell her 1/3 portion. Her sister, brother and mother declined to buy her share so she sold it to Gregorio Araneta, a domestic corporation. - The new co-owners executed a MOA to the effect that they all agreed to improve the property by filling it and constructing roads and curbs on the same and then subdivide it into small lots for sale. It also provided that the co-ownership shall be preserved until all the lots have been sold. - During and after the execution of the MOA Atty. J. Antonio Araneta, a member of the board of Araneta, acted as the attorney in fact of Angela and Antonio Tuason. - After some time, Angela revoked the powers conferred on her attorney in fact and decided to rescind the contract and asked that the property be partitioned. WON the contract be declared null and void because its terms violate the provision of Art. 400 of the Civil Code. No, Art.400 of the CC is not applicable. The contract far from violating the legal provision that forbids a co-owner from being obliged to remain a party to the community, precisely has for its purpose and object the dissolution of the co-ownership and of the community by selling the parcel held in common and dividing the proceeds of the sale among the co-owners. The obligation imposed in the contract to preserve the co-ownership until all the lots shall have been sold, is a mere incident to the main object of dissolving the co-ownership. - By virtue of the document, the parties thereto practically and substantially entered into a contract of partnership as the best and most expedient means of eventually dissolving

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SUCCESSION REVIEWER the co-ownership, the life of the said partnership to end when the object of its creation shall have been attained. - Art. 400: No co-owners shall be obliged to remain a party to the community. Each may, at any time, demand the partition of the thing held in common. - Nevertheless, an agreement to keep the thing undivided for a specified length of time, not exceeding ten years, shall be valid. This period may be a new agreement.

Garcia v. Calinisan - Gelacio Garcia died intestate, leaving a parcel of unregistered land Iloilo.O - n his death the property was inherited by his nephews, nieces, grandnephews who are the descendants of his late brothers, Pedro, Simeon, Buenaventura and Marcos. - A group of heirs signed a document entitled “Extrajudicial Partition and Deed of Sale”. In the same document, the heirs transferred the land to Spouses Calaliman. - The document was inscribed in the RD of Iloilo. - 2 weeks after, another group of heirs sold to Spouses Calaliman their shares, rights, interest and participation in the same parcel of land. The Deed of Sale was registered in the RD of Iloilo. - 5 months after, some of the heirs (petitioners herein) filed a case for legal redemption of the ¾ of the land which was sold by their co-heirs to Spouses Calaliman. - The trial court ruled in favor of petitioners and ordering defendants to resell the property. - However, the CA reversed the decision and ordered for the dismissal of the complaint. - Hence, this petition. Whether petitioners exercised their right of redemption within the period fixed by Art. 1088. - YES. The SC reversed the decision of the CA and reinstated the decision of the trial court. - No notification in writing was ever received by petitioners about the sale of the hereditary interest of some of their coheirs in the parcel of land they inherited from the late Gelacio Garcia. - Also, the SC held untenable the argument of respondents that the requirement that the notice must be in writing is deemed satisfied when petitioner Francisco Garcia went to the Office of the Register of Deeds and saw for himself, read and understood the contents of the deeds of sale. - By citing another case, the Court did not consider the registration of the deed of sale with the Register of Deeds sufficient notice, most specially because the property involved was unregistered land. - Thus, the SC held that petitioners have not lost their right to redeem, for in the absence of a written notification of the sale by the vendors, the 30-day period has not even begun to run. - The SC also declared that petitioners can claim attorney's fees for bad faith on the part of respondents, first, for refusing redemption, and secondly for declaring the entire land as theirs, although they knew some heirs had not sold their shares. - In the interpretation of a related provision (Article 1623 of the New Civil Code) this Court had stressed that written notice is indispensable, actual knowledge of the sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the Code, to remove all uncertainty as to the

1ST SEM 2006- 2007 sale, its terms and its validity, and to quiet any doubt that the alienation is not definitive. The law not having provided for any alternative, the method of notifications remains exclusive, though the Code does not prescribe any particular form of written notice nor any distinctive method for written notification of redemption. - In the absence of a written notification of the sale by the vendors, the 30-day period provided in Art. 1088 has not even begun to run.

Balanay Jr. v. Martinez - Leodegaria Julian, in her will, partitioned her paraphernal as well as all the conjugal properties as if they were all owned by her, disposing of her husband's one-half share. - The will also provided that the properties should not be divided during her husband's lifetime but should remain intact and that the legitimes should be paid in cash to be satisfied out of the fruits of the properties. - Felix Balanay, Jr. filed a petition for the approval of his mother's will which was opposed by the husband and some of her children. - During the pendency of the probate proceedings Felix submitted to the court a document showing his father's conformity to the testamentary distribution, renouncing his hereditary rights in favor of his children in deference to the memory of his wife. - The Court gave effect to the affidavit and conformity of the surviving spouse. - Meanwhile, a certain Atty. David Montaña, Sr. allegedly, in behalf of the petitioner, moved to dismiss the probate proceedings and requested authority to proceed by intestate proceedings on the ground that the will was void (because Leodegaria cannot validly dispose of her husband’s share). - This motion was granted by the probate court and the petition for the allowance of the will was dismissed. - Felix appealed the decision of the trial court declaring the will void before resolving the question of its formal validity.

Whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring it void. - NO. In view of certain unusual provisions of the will, which are of dubious legality, and because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been established. - The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue Whether or not the testator validly prohibited the partition of her properties until after the lifetime of her husband and consequently ordered that the legitimes be paid in cash. - This provision of the will is void. First, the prohibition to partition the estate is only valid for twenty years. Hence, the

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SUCCESSION REVIEWER prohibition lasting for the husband’s lifetime shall be limited to 20 years. - Second, the provision stating that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code - The only instance when the legitimes could be paid in cash is when an agricultural, commercial or manufacturing enterprise is granted to one or more children, in which case the legitimes of the other children to whom the property was not assigned shall be paid in cash. The article is not applicable when such property is devised to all the children. - Art 1080

 END OF FINALS REVIEWER

Alejandro v. CA Garcia v. Calaiman Verdad v. CA -

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Macaria Atega was the owner of a parcel of land. At the time of her death, she was survived by her son from the first marriage, Ramon burdeos and her children from the second marriage, including David Rosales. Sometime after Macaria’s death, David Rosales likewise died intestate leaving his wife Socorro and his brothers and sisters as his only heirs. The heirs of Ramon Burdeos sold to Zosima Verdad their interest on the lot inherited from Macaria. Socorro discovered the sale while she was on the City Treasurer’s Office and that a day after, she immediately sought for the redemption of the property for P23,000. This offer was refused by Zosima for being inadequate, the lot’s current value being 80,000. Hence, Socorro filed a claim for legal redemption against Zosima Verdad.

Whether or Not Socorro has the legal standing to redeem said property Yes. It must be remembered that Socorro is not filing for the legal redemption as an intestate heir of the mother-inlaw, apparently she is not one. Socorro derived the right from her husband, part of whose estate is a share in the mother’s inheritance. It must be remembered that David survived his mother, and hence when David died, the inheritance derived from his mother was transmitted to the wife. Whether or not the cause of action already prescribed No. According to Art 1623 of the Civil Code, the right of redemption is to be exercised within 30 days from written notice by the prospective vendor. The written notice under said article has been declared mandatory by the court so as to remove all uncertainties about the sale, its terms and conditions, as well as its efficacy and status. The written notice of sale, which will commence the prescriptive period for the filing of an action for legal redemption granted to heirs, is MANDATORY.

COMPARISON OF RULES ON TESTATE AND INTESTATE SUCCESSION RULE RIGHT OF ACCRETION

TESTATE Art. 1016. In order that the right of accretion may take place in a

INTESTATE Art. 1018. In legal succession the share of the person who

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

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SUCCESSION REVIEWER 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.

repudiates the inheritance shall always accrue to his co-heirs. Art. 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.

Art. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations.

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 coheirs, co-devisees, or colegatees. Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. Art. 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. Should the part repudiated be the legitime, the other coheirs shall succeed to it in their own right, and not by the right of accretion.

CAPACITY TO SUCCEED

Art. 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.

Art. 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.

Art. 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.

ACCEPTANCE OR REPUDIATION OF INHERITANCE

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity.

Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity.

Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free.

Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be

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

HALF BLOOD AND FULL BLOOD BROTHERS AND SISTERS

Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance.

Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances & Ryan Quan  169

1ST SEM 2006- 2007

SUCCESSION REVIEWER

REPRESENTA TION

distributed equally unless a different intention appears. Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.

share double that of the latter. Art. 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.

Art. 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. Art. 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. Art. 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. Art. 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.

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Jen Laygo 3DDigests c/o 3C ’06-’07: Alvin Saga, Cecille Natividad, CJ Tan, Julie Domingo, Mars Rongo, Lea Mateo, Nina Rances & Ryan Quan  170