LEP NOTES – Succession

LEP NOTES – Succession (from Succession in a Nutshell by Justice Alicia V. Sempio-Diy and Jottings and Jurisprudence in Civil Law (Succession) by Ruben F. Balane)

DISINHERITANCE 1.Meaning of disinheritance: Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (NCC) - Disinheritance is the only instance in which the testator may deprive his compulsory heirs of their legitime. - The general rule under Art. 904 that the testator cannot deprive the compulsory heirs of the legitime admits only one exception, which is disinheritance. - Effect of disinheritance is not just deprivation of the legitime, but total exclusion of the disinherited heir from the inheritance, but total exclusion of the disinherited heir from the inheritance. o The disinherited heir forfeits: 1. his legitime, 2. his intestate portion, if any, and 3. any testamentary disposition made in a prior will of the disinheriting testator. 2.Purpose or object of disinheritance: (a) To maintain good order and discipline within the family (b) To punish the ungrateful, the culpable, the cruel, the unworthy heir, the unfaithful spouse. 3.Requisites of a valid disinheritance: (a) Disinherited heir must be clearly identified. (b) Must be for a cause provided for by law (Art. 915). (c) Must be express, stating the cause in the will (Art. 916). (d) Cause must be legal, true, and existing (Art. 916). (e) Must be unconditional. (f) Can't be partial; must be total or complete. If partial, disinheritance is not valid, and the heir gets his or her legitime. -

The strictness of the requisites indicates the policy of the law to treat disinheritance with disfavor because disinheritance results in deprivation of legitime. The causes are specified in Art. 919 (descendants), Art. 920 (for ascendants), and Art. 921 (for the surviving spouse). The truth of the cause 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.

4.Remember also: (a) Disinheritance can be made only in a will. There is no disinheritance in legal succession. - The will must be valid and admitted to probate. (b) Includes not only the legitime, but also the free portion. (c) If will is revoked, disinheritance becomes ineffective. (d) Only compulsory heirs can be disinherited, so brothers and sisters cannot be the subject of disinheritance. (e) Reconciliation renders disinheritance ineffective. (f) In preterition, the whole institution of heirs is annulled. In invalid disinheritance, the disinherited heir still gets his legitime. (g) Heirs of the disinherited heir represent the latter in the legitime, but the disinherited heir shall not have the usufruct of the property constituting the legitime. (Art. 923). (h) Art. 923 on right of representation in disinheritance is granted only to descendants of disinherited descendants. The representative takes 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. 5.Problems: (a) T has 5 children. He made a will with only provision, i.e., disinheriting one of his children for living a disgraceful life. If T dies with an estate of P100,000, how would his estate be divided? The disinherited child is not entitled to his legitime and also a share in the estate as an intestate heir, since intestacy is only the presumed will of the deceased. Divide the estate among the other four children equally or P25,000 each. (b) Suppose in problem (a), T also instituted 4 other children as heirs in his will. Divide the P100,000 estate. 1 of 25

Since the disinherited heir loses not only his legitime but any share in the free portion, again divide the P100,000 estate equally among the 4 instituted children. (c) T has 3 daughters. He made a will disinheriting one of them for living a disgraceful life, and gave his entire estate of P300,000 to his two other daughters. Divide the estate. The disinheritance is valid, so just divide the entire estate equally between the two daughters who were instituted as heirs. (d) Suppose in problem (c), the ground for disinheritance is that the daughter married a man that the father does not like. Divide the estate. The disinheritance is not valid because the cause is not valid. So the disinherited daughter gets her legitime of P50,000 (1/3 of P150,000). Then divide the free portion of P150,000 equally between the two other daughters, which they get as instituted heirs in addition to their legitime of P50,000 each. (e) T's will reads: “I disinherit my son A if he makes an attempt against my life.” Is the disinheritance valid? No, because it is conditional. And this is true even if A actually makes an attempt against his father's life after the execution of the will. But if A is convicted, he will not also inherit from T, not because of the attempted disinheritance, but because he is incapacitated under Art. 1032 (2). (f) T disinherited his child C in his will, providing that C would only get 1/2 of his rightful share in T's estate. Is the disinheritance valid? No, because it is partial. So C still gets his legitime. 6. Grounds for disinheritance Of children, legitimate or Of parents, legitimate or illegitimate (Art. 919) illegitimate (Art. 920) (8 grounds) (8 grounds, with 2,3,4,5 & 7 same with Art. 919) 1. Conviction of attempt against - Same, Art. 920 (2)life of testator, his spouse, descendant or ascendant. 2. Has accused testator of a crime - Same, Art. 920 (3)punishable by 6 yrs. or more if found to be groundless. 3. Conviction concubinage spouse.

of adultery or - Same, Art. 920 (4)with testator's

4. Caused the testator to make a - Same, Art. 920 (5)will or change one already made by fraud, violence, intimidation or undue influence.

Of Spouses (Art. 921) (6 grounds)

- Same, Art. 921 (1) -

- Same, Art. 921 (2) -

Art. 921 (4) - When he/she has given ground for legal separation (even if no case is filed). -Same, Art. 921 (3) -

5. Refusal to support the testator Art. 920 (7) - Refusal to support Art. 921 (6) – Unjustified w/o justifiable cause. children and descendants w/o refusal to support the children justifiable cause. or other spouse. 6. Maltreatment of testator by Art. 920 (8) - Attempt against word or deed (conviction not life of other parent, unless there necessary). is reconciliation. 7. Leading dishonorable disgraceful life.

or Art. 920 (6) Loss of parental Art. 921 (5) - When spouse authority for causes specified by has given ground for loss of law. parental authority.

8. Conviction of crime punishable Art. 920 (1) Abandonment of by civil interdiction. children and descendants and inducing daughters to live corrupt or immoral lives or attempted against their virtue.

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Arts. 919 (1), 920 (2) and 921 (1) - Conviction is required; attempt includes all stages of execution 2 of 25

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Arts. 919 (2), 920 (3) and 921 (2) o “accused” includes filing of complaint, presenting incriminating evidence, suppressing exculpatory evidence o Penalty for the crime is atleast 6 years o Testator must be acquitted o Accusation must be found groundless, i.e. acquittal because no crime was committed or accused did not commit the crime. If acquittal is based on reasonable doubt, it is not valid disinheritance.

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Arts. 919 (5), 920 (7), 921 (6) – there must be a demand for support

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Art. 919 (6) – leading dishonorable life requires habituality; need not be sexual in nature, i.e. drug pushing.

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Art. 921 (4), grounds for legal separation under Art. 55, Family Code (10 grounds); decree of legal separation is not required, just the existence of any of the causes

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Arts. 920 (6) and 921 (5) – loss of parental authority, only causes that involve culpability on the part of the parents (does not include age of majority or death). o Art. 229, FC – judicial declaration of abandonment of child. o Art. 231, FC – harsh and cruel treatment; giving the child corrupting orders, counsel or example; compelling the child to beg; subjecting the child or allowing him to be subjected to acts of lasciviousness. o Art. 231, FC – has subjected or allowed the child to be subjected to sexual abuse

7.Reconciliation between testator and disinherited heir: (a) Subsequent reconciliation deprives the testator of the right to disinherit, and any disinheritance already made becomes ineffectual. (b) Reconciliation needs no special form. It can be express or implied. * In UNWORTHINESS (Art. 1033), condonation must be in writing. (c) If ground for disinheritance is also a ground for unworthiness, like abandonment of children or an attempt against the life of the testator, the heir cannot also inherit. But reconciliation extinguishes unworthiness as an incapacity, because incapacity is only the presumed will of the testator. 8.Ineffective disinheritance: (a) No cause for disinheritance is stated. (b) The cause is false. (c) The cause is not legal. (d) Subsequent reconciliation between disinheritance.

the

testator

and disinherited heir

results

in ineffective

- If the disinheritance is ineffective, the heir in question gets his legitime. * As to whether he will also get any part of the intestate portion or not depends on whether the testator gave away the free portion through testamentary dispositions. If he did, these dispositions are valid and the compulsory heir improperly disinherited gets his legitime. If the testator did not, the compulsory heir will be entitled to his corresponding share of the free portion as well. - Note the difference between the effects of preterition in Art. 854 and of ineffective disinheritance in Art. 918. Preterition abrogates the institution of heir but respects legacies and devises insofar as these do not impair the legitimes. Ineffective disinheritance annuls 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. 9.How disinheritance is revoked: (a) By subsequent reconciliation between testator and disinherited heir; (b) By execution of a new will making the disinherited heir an instituted heir.

LEGACIES AND DEVISES 1.Legacy and devise distinguished: (a) A legacy is gift of personal property given in a will. A devise is a gift of real property given in a will. 3 of 25

(b) A legacy is “bequeathed”, while a devise is “devised”. - It is important also to distinguish legacy and devise 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. - Legacy or devise should not impair the legitime. 2.Who has the duty to give the legacies and devises in a will? (a) If no one is charged with this duty in the will, the estate must give them, as represented by the executor or administrator with a will annexed. (b) Testator may impose the duty on the compulsory heirs as long as their legitimes are not impaired, i.e., legacies/devises cannot be beyond the free portion (Art. 925). Ex.: “I institute my child C as heir, but he must give P10,000 to X.” (c) A legatee or devisee can also be charged with the duty of giving a sub-legacy or sub-devise but only to the extent of the value of the legacy or devise given him (Art. 925). Ex.: “I give my NISSAN car to X, but he must give Y P500.” 3.Indeterminate legacy (Art. 928): (a) Example is a legacy of an indeterminate or generic car. (b) Heir bound to deliver is liable for eviction. (c) If legacy is a specific, determinate car, heir is not liable for eviction. 4.Legacy or devise of a thing belonging to another. (Art. 930): (a) If the testator erroneously believed that he was the owner of the thing when in reality, he is not the owner, the devise/legacy is void. (b) But if the thing subsequently becomes his, the disposition is validated. (c) If the testator ordered the acquisition of the thing, the order should be complied with. If the owner refuses to sell or demands an excessive price, he is obliged only to give the just value of the thing (Art. 931). 5.Legacy or devise of thing already belonging to the legatee or devisee (Art. 932): (a) If the thing already belongs to the legatee or 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.(Art. 933). (d) If after alienating the thing, the legatee or devisee subsequently reacquires it gratuitously, the legacy or devise is still void. But if he reacquires it by onerous title, he is entitled to reimbursement of what he had paid (Art. 933). 6. Legacy or devise to remove an encumbrance over a thing belonging to the legatee/devisee the legacy or devise is valid only as to the interest or encumbrance. (Art. 932) 7.Legacy of a thing pledged or mortgaged to secure a debt (Art. 934): (a) Whether pledged or mortgaged before or after the execution of the will, the estate must pay the debt unless the testator intended otherwise. (b) Other charges like easements, usufructs, leases which are real rights, pass to the legatee or devisee. 8.Legacy of credit, or remission or release of a debt (Art. 935-937): (a) Applies only to amount still unpaid at the time of testator’s death. (b) The legacy comprises all interests due to the testator at the time of his death. (c) Legacy is revoked if testator subsequently (after the will) sues the debtor for collection. (d) If generic, comprises all credits/debts existing at the time of execution of the will, unless otherwise provided (Art. 937). 9.Legacy to the debtor of thing pledged by him (Art. 936): (a) Only the pledge is extinguished; the debt remains. (b) Can also be applied to mortgage, antichresis, or any other security. 10.Legacy or devise to a creditor (Art. 938): (a) G.R. it will be treated like any other legacy/devise and therefore will not be imputed to the credit, or to what the testator owes him. 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. 11.If the testator orders the payment of a debt (Art. 939): 4 of 25

(a) This is not a testamentary disposition, but merely a direction to discharge a civil obligation. (b) Instruction to pay a non-existing debt is void. (c) Instruction to pay more than what is due is effective only as to what is due – effective only as to what is due, unless the bigger amount specified constitutes a natural obligation, like a prescribed debt. 12.Alternative legacies and devises (Art. 940): - one which provides that, among several things mentioned, only one is to be given. (a)The choice is with the heir, or the executor or adminitrator. (b) If the heir, legatee, or devisee who is bound to give the gift dies, the right passes to their heirs. (c) The choice, once made, is irrevocable. (d) Apply rules on obligations in general. 13.Legacy of generic personal property or indeterminate real property (Art. 941): (a) Legacy of generic personal property is valid even if there are no things of the same kind in the estate. The estate will simply have to acquire what is given by legacy. (b) But devise of indeterminate real property is valid only if there is an immovable property of the same kind in the estate at the time of testator’s death. (c) The right to choose the legacy belongs to the executor or administrator who shall deliver a thing which is neither of inferior or superior quality. (d) If the choice is given to the heir, legatee, or devisee, he may choose whatever he prefers (need not be of medium quality) (Art. 942). (e) If the heir, legatee, or devisee cannot make the choice, the right passes to his heirs (Art. 943). (f) Finality of choice – irrevocable, once made. 14.Legacy of education (Art. 944): (a) Lasts until the legatee is of age, or beyond the age of majority in order that he may finish some professional, vocational, or general course, provided he pursues his course diligently. (b) Amount – that fixed by the testator; If the testator did not fix the amount, it is fixed in accordance with the social standing and circumstances of the legatee and the value of the estate. 15.Legacy of support (Art. 944): (a) It lasts during the lifetime of the legatee. (b) If the testator used to give the legatee a sum of money for support, give same amount, unless it is markedly disproportionate to the estate. (c) If the testator did not fix the amount, consider the social standing and circumstances of the legatee and the value of the estate. 16.When does the legatee or devisee acquire ownership of the gift? (Art. 947): (a) If the legacy or devise is pure and simple, from the death of the testator, and he transmits it to his heirs (Art. 947). (b) If with a suspensive term – upon the arrival of the term. (c) if subject to a suspensive condition – upon the happening of the condition. (d) If gift is specific or determinate, also upon the death of the testator, and gift includes growing fruits, unborn offsprings and uncollected income, but not income due before the testator's death (Art. 948). (e) If the gift is specific or determinate, the risk of loss or deterioration is on the legatee or devisee, as well as any increase or improvement. (f) If the gift is generic, fruits and interests from the time of death of the testator pertain to the legatee or devisee if the testator expressly ordered the same (Art. 949). 17.Order of preference if the estate is not sufficient to cover all legacies and devises (Art. 950): (a) Remuneratory. i.Those which testator gives because of his moral obligation to compensate certain persons for services which do not constitute recoverable debts, like legacy to one who saved the life of the testator. ii.Entitled to preference because they are moral obligations of the testator. iii.Remuneratory nature can be proven by extrinsic evidence. (b) Those declared by the testator as preferential. (c) For support. (d) For education. (e) Legacy or devise of specific, determinate thing in the estate. (f) Others, pro rata. - 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-prefered 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 this article. - Art. 911 will apply if reductions have to be made because the legitimes have been impaired, i.e., the legacies/devises have exceeded the disposable portion. - Art. 950 will apply if the reason for the reduction is not the impairment of legitimes; e.g., there are no legitimes because there are no compulsory heirs or the legitimes have already been satisfied through donations inter vivos. 5 of 25

18.How legacy or devise is delivered (Art. 951): (a) The obligation to deliver the accession and accessories exists even if the testator does not explicitly provide for it. This is the same rule laid down in Article 1166. (b) With all accessions and accessories and in the condition it was at the time of the testator's death. - The crucial time is testators death because that is when successional rights vest (Art. 777) (c) Deliver the very thing given (if specific or determinate), not its value. (d) Legacies of money must be paid in cash. (e) Expenses of delivery are for the account of the heir or estate, but without affecting the heir's legitime. - Art. 953 - Although the efficacy of a legacy or devise vests upon the testator’s death, actual delivery does not take place at that time. As already pointed out, 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. 19.Acceptance of legacy or devise: (a) Acceptance may be total or partial. Except: If the legacy/devise is partly onerous and partly gratuitous, the recipient can not accept the gratuitous part and renounce the onerous part. Any other combination however is permitted. (b) Heirs of legatee or devisee can accept the gift if the legatee or devisee dies after the death of the testator, not before. (c) Legacy or devise not accepted shall be merged into the mass of the estate (intestacy), except in substitution or accretion (Art. 956). (d) If a compulsory heir is also a legatee or devisee, he can accept either or both the legacy/devise and the legitime, or waive both (Art. 955). 20.When does legacy or devise become of no effect (Art. 957): (a) Transformation - If the testator transforms the thing such that it does not retain its original form or denomination; (b) Alienation - If the testator alienates the thing by any title or for any cause. Reacquisition of the thing by the testator does not make the legacy or devise valid, unless it is effected by right of repurchase (pacto de retro) OR reversion is caused by the annulment was vitiation of consent on the grantor’s part, either by reason of incapacity or of duress. (c) Total loss - If the thing is totally lost during the lifetime or after the death of the testator. 21.Mistake as to name of thing give (Art. 958): (a) Of no consequence, if thing can be identified. (b) Ex.: “I give X my only car, a Nissan 93.” This is effective even if the car is a Nissan 92. 22.Disposition in favor of testator's relatives (Art. 959): (a) Limited to 5th degree relatives of the testator. (b) Nearer excludes the farther. (c) No preference as to lines. Grandson and sister are both relatives within second degree. What is important is nearness of degree. (d) Does not apply to relatives of the wife.

LEGAL SUCCESSION 1.Legal succession defined: That kind of succession prescribed by law (and presumed by it to be the desire of the deceased) which takes place when the expressed will of the decedent has not been set down in a will. 2.Basis of legal succession: Because unexpected death may come to any person, the law presumes what would have been his last wishes had he executed a will while still alive, taking into consideration his love and affection for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote charitable and humanitarian activities. 3.When does legal succession take place? (Art. 960, NCC): (a) When a person dies without a will or a void will, or a will that has lost its efficacy (like a revoked will); (b) When the will does not institute an heir or does not dispose of all the properties of the testator (partial intestacy). In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (c) If a suspensive condition attached to the institution of heir in a will 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; 6 of 25

(d) If the heir predeceases the testator, or is incapacitated to inherit, or repudiates the inheritance, and there is no substitution or accretion; (e) When the heir instituted is incapable of succeeding; (f) Upon the expiration of a resolutory term attached to the institution of heir; (g) Upon fulfillment of a resolutory condition attached to the institution of heir, rendering the will ineffective. (h) preterition Ex.: A has a brother B, his only relative. A makes a will giving a certain house to C provided he passes the 2002 bar examinations; and giving a certain car to D, with E as D's substitute in case of predecease. D dies in 1997. A dies in 1998. C flunks the 2002 bar exams. Who gets the house and the car? Ans.: The house goes to the brother B as intestate heir; The car goes to E as the substitute of D. 4. Order of Intestate Succession: INTESTATE HEIRS I. Legitimate Children/Descendants II. Illegitimate Children/Descendants III. Legitimate Parents/Ascendants IV. Illegitimate Parents V. Surviving Spouse VI. Brothers, sisters, nephews, nieces VII. Other Collaterals – to the 5th degree VIII. State Note: The first 5 classes of intestate heirs are also compulsory heirs. Consequently: 1.there is, to a considerable extent, an overlapping of legitime and intestate portions merge. 2.there is a very close parallel between the rules of compulsory succession and those of intestate succession. 5.Rules to remember in legal or intestate succession: (a) Exclusion and Concurrence in Intestacy – Intestacy operates on the same principles as succession to the legitime. There are two principles, operating sometimes simultaneously, sometimes singly: exclusion and concurrence. The groups of intestate heirs and the different combinations are provided under Articles 978-101. Note; Children include, in proper cases, other descendants; and parents, other ascendants. I. Legitimate children: 1. Exclude parents, collaterals & State 2. Concur with surviving spouse and illegitimate children 3. Are excluded by no one II. Illegitimate children: 1. Exclude illegitimate parents, collaterals & State 2. Concur with surviving spouse, legitimate children, & legitimate parents 3. Are excluded by no one III. Legitimate parents 1. Exclude collaterals & State 2. Concur with illegitimate children & surviving spouse 3. are excluded by legitimate children IV. Illegitimate parents 1. Exclude collaterals & State 2. Concur with surviving spouse 3. Are excluded by legitimate children & illegitimate children V. Surviving Spouse 1. Excludes collaterals other than brothers, sisters, nephews & nieces, and the State 2. Concurs with legitimate parents, illegitimate parents, bothers, sisters, nephews & nieces 3. Is excluded by no one VI. Brothers and Sisters, Nephews and Nieces 1. Exclude all other collaterals & the State 2. Concur with surviving spouse 3. Are excluded by legitimate children, illegitimate children, legitimate parents, and illegitimate parents V. Other Collaterals 1. Exclude collaterals in remoter degrees & the State 2. Concur with collaterals in the same degree 3. Are excluded by legitimate children, illegitimate children,. Legitimate parents, illegitimate parents, surviving spouse, brothers & sisters, and nephews & nieces VI. State 1. Excludes no one 2. Concurs with no one 7 of 25

3. Is excluded by every one (b) An intestate heir is not necessarily a compulsory heir (like a brother or sister). (c) The rule of proximity of degree - Relatives nearer or nearest in degree exclude the more distant ones, saving the right of representation when proper (Art. 962). (d) The rule of preference of lines – The three lines of relationship are: 1) the descending; 2) the ascending; and 3) 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 and collateral. (e) The rule of equality among relatives of the same degree - Relatives in the same degree inherit in equal shares. Except: 1) the rule of preference of lines, supra; 2) the distinction between legitimate and illegitimate filiation (the ratio is 2:1) 3) the rule of division by line in the ascending line (Article 987, par. 2) 4) the distinction between full or half-blood relationship among brothers and sisters, as well as nephews and nieces (Arts. 1006 and 1008) 5) representation * Remember that distinction between full-blood and half-blood relationship is important only with respect to brothers and sisters and nephews and nieces, there being a ratio of 2:1 following Arts. 1006 and 1008. With respect to collateral relatives, the full-blood and half-blood relationship is not material. (f) There is no representation in the ascending line (Art. 972). (g) There is representation in the descending line, whether full or half-blood descendants (Art. 972). (h) There is also representation in the illegitimate line (Art. 989). (i) In the collateral line, there is representation only in favor of children of brothers and sisters, whether full or half-blood (Art. 972). i.Grandchildren of brothers and sisters cannot represent. ii.Children of first cousins cannot represent; but first cousins represent because they are the children of brothers and sisters. iii.Representation in the collateral line is true only in legal succession, because collaterals are not compulsory heirs, and a voluntary heir cannot be represented. (j) In partial intestacy, legacies and devisees are charged to the free portion proportionately against the heirs who are given more than their legitimes, but in no case shall the legitimes be impaired. (k) Grandchildren always inherit by representation whether they concur with the children or not. They inherit in their own right only when all the children renounce, and they share equally or per capita (Art. 982). (l) Nephews and nieces inherit either by representation or in their own right (Art. 1005). i.They inherit by right of representation when they concur with aunts and uncles, who divide per capita, while nephews/nieces divide per stirpes. (Calisterio v. Calisterio, G.R. 136467, April 6, 2000). ii.They inherit in their own right when they do not concur with aunts and uncles; in this case, they divide per capita or equally (Art. 975). (m) Illegitimate children do not inherit ab intestato from the legitimate children and relatives of his illegitimate father or mother; nor do said legitimate children and relatives inherit from the illegitimate child (Art. 992). (n) There is also reserva troncal in legal succession, because legal succession is by operation of law. (o) A renouncer can represent but cannot be represented (Arts. 976, 977). Art. 969 - 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. Thus: 1.The descending line first – if all the descendants of a certain degree renounce, succession passes to the descendants of the next degree, and so on, ad indefinitum. 2.The ascending line next – Should no one be left in the descending line, the heirs in the ascending acquire the right of succession, again in order of degrees of proximity; 3.The collateral line last – Only if all the descendants and ascendats renounce will the collateral relatives acquire the right to succeed. 8 of 25

Predecease or Incapacity by All in the Same Degree This eventuality is not provided for by Art. 969, but the rules outlined above are equally applicable to such a situation except in cases where representation is proper, i.e. in the descending line. Representation does not apply in cases of universal renunciation outlined above, because there is no representation in renunciation. 6.Other rules to remember: (a) If a man dies survived by a brother and a cousin, the brother excludes the cousin. (b) If the deceased has two brothers, they get equal shares (Art. 1004). (c) If a man survived by a grandfather and a brother (both 2 degrees), the grandfather inherits alone because the direct line is preferred to the collateral line. (d) Half-sister excludes nephews and nieces. (e) An aunt is excluded by nephews and nieces although both are 4 th degrees relation, because nephews and nieces are 4th in the order of legal succession, while an aunt is only 5th. (f) In giving the shares of illegitimate children, the shares of the legitimate children should not be impaired (1/2 of the estate). If there are many illegitimate children, give what corresponds to the legitime of the legitimate children first (1/2 of the estate), then divide the rest among the illegitimate children. (g) If there are relatives of the same degree and some repudiate or are incapacitated, their shares accrue to the others of the same degree, save the right of representation (Art. 968). 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. 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 preference of lines in intestate succession. Thus, there can be no accretion among a grandchild, a grandparent and a brother of the decedent (even if they are all related to him in the second degree) because they are not inheriting together in the first place.

A, B, C, and D are brothers. If their parents both died, leaving an estate of P100,000, and A repudiates his share while B turns out to be incapacitated, the share of A accrues to C and D, because there is no representation in repudiation, while the share of B goes to his child B-1 gets P25,000, while C and D get P37,500 each, because the share of A accrued to them. (h) If in the above example, all the brothers and sisters repudiate, the next in line (nephews and nieces) get the estate in their own right per capita, not by representation because again, there is no representation in repudiation. So, if A, B, C, and D all repudiate, the P100,000 estate of their parents will go to A-1 and B-1, which they shall divide per capita, or P50,000 each. (i) If nephews and nieces alone survive, they inherit in equal shares. 6. Computation of Degrees: A. Direct Line – There is no legal limit to the number of degrees for entitlement to intestate succession. The practical limit, of course, is human mortality. Mode of counting degrees in the direct line: One generation = one degree (Art. 966, par.2) Parent-child = one degree Grandparent-grandchild = two degrees, etc. Great-grandparent-great-grandchild = two degrees, etc. B. Collateral Line – Computation of degrees is particularly important in the collateral line because 9 of 25

intestate succession extends only to the 5th degree of collateral relationship. Mode of counting degrees in the direct line: (i) From one reference point, ascend to nearest common ancestor [if there are more than one nearest common ancestor, choose any one] (ii) Then descend to the other reference point. (iii) Number of generations comprising the ascent and the descent is the degree of collateral relationship. C. Collaterals by Degrees: First Degree-none Second Degree-brothers and sisters Third Degree – uncles/aunts; nephews/nieces Fourth Degree – first cousins; brothers/sisters of a grandparent (grand-uncles/grand-aunts); grandchildren of brothers/sister (grand-nephews/grandnieces) Fifth Degree – child of a first cousin; first cousins of a parent; brothers/sisters of a great-grandparent; great-grandchildren of brother/sister 7.The Sharing in Intestate Succession: (a) Legitimate children alone – All (b) Legitimate children – Surviving spouse – SS gets the same share as one legitimate child. If there is only one child, they divide 1/2, 1/2. (c) Legitimate children and illegitimate children – Proportion of 10-5, provided the legitimes of the legitimate children are not impaired. So, if there is are only 2 legitimate children and 10 illegitimate children, since the legitime of the 2 legitimate children is 1/2 of the estate, they get 1/2 of the estate, while the illegitimate children will just have to divide the other half equally among themselves. *** The proportion of the shares of legitimate and illegitimate children has been simplified to 2:1 by virtue of the 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 two-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 a case, the legitimes of the illegitimates will have to be reduced pro rata. ***Thus, if the parent's estate is P100,000, the two legitimate children get P50,000 or P25,000 each, while the ten illegitimate children will divide the other P50,000 equally among themselves or only P5,000 each. (d) Legitimate children – illegitimate children – surviving spouse: Legitimate children and illegitimate children – Proportion of 10-5. Surviving spouse – Same share as one legitimate child, to be taken from the other half of the estate so that the share of the legitimate children of 1/2 of the estate will not be impaired. So, if there are many illegitimate children, they will again have to share what remains of the other half of the estate after giving the share of the surviving spouse, so that it can well happen that each illegitimate child cannot get 1/2 of the share of a legitimate child. (e) One legitimate child – surviving spouse – illegitimate children: One legitimate child - 1/2 Surviving spouse - 1/4 Illegitimate children - 1/4 (f) Illegitimate child alone – All. (g) Illegitimate children and surviving spouse – 1/2, 1/2 (h) Surviving spouse alone – All. (i) Legitimate parents alone – All. (j) Legitimate parents, surviving spouse, illegitimate children – 1/2, 1/4, 1/4. Remember that when there are legitimate children, ascendants are excluded. (k) Legitimate parents and illegitimate children – 1/2, 1/2 (l) Legitimate parents and surviving spouse – 1/2, 1/2 (m) Surviving spouse and illegitimate parents – 1/2, 1/2 (n) Illegitimate parents alone – All. (o) Surviving spouse, brothers and sisters – 1/2, 1/2 (p) Brothers and sisters, nephews and nieces – All. (q) Other collaterals – All. i.Nearer excludes the farther. 10 of 25

ii.Does not extend beyond 5th degree. iii.A half-sister excludes all other relatives. (r) State – All 1. Assignment & disposition of decedent’s assets: a. If decedent is a resident of the Philippines at any time: (i) Personal property – to municipality of last residence (ii) Real property- where situated b. If decedent never a resident of the Philippines: Personal and real property – where respectively situated 2. How property is to be used: a. For the benefit of public educational and charitable institutions in the respective municipalities/cities; b. 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. 7.Intestate succession in adoption: (a) In the intestate succession of the adopter, “the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation.” (Art. 18, R.A. 8552) (b) In the intestate succession of the adopted child: i.Again apply Art. 18, R.A. 8552. ii.If the adopter dies ahead of the adopted child, the parents and relatives by consanguinity of the adopted child are his legal heirs (Art. 984, NCC). iii.If only the parents by nature of the adopted child survive, they get all. (c) In the intestate succession of the parents by nature and other blood relatives of the adopted child, the adopted child remains an intestate heir (Art. 189, par. [3], Family Code). (d) If the adopter predeceases the adopted child, the latter cannot represent the former in the inheritance from the legitimate relatives of the adopter, because the filiation created by fiction of law is exclusively between the adopter and the adopted.

REPRESENTATION 1.Representation defined: It is “a right created by fiction of law, by virtue of which the representative is raised to the place and 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. 970, NCC) *** the 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. 2.When does representation exist: (a) In testate succession: i.Exists in predecease, incapacity, and disinheritance. ii.Covers only the legitime, which goes to the representative by operation of law. iii.There is no right to represent a voluntary heir. (b) In intestate succession: i.Exists also in predecease and incapacity. ii.Covers all that the person represented could have inherited. In what lines does representation obtain: A. With respect to the legitime – in the direct descending line only (Art. 972) B. With respect to intestacy – 1. in the direct descending line (Art. 972) 2. in one instance in the collateral line; i.e. nephews and nieces representing brothers and sisters of the deceased. (Art. 975) 3.Rules to remember: (a) An adopted child cannot represent. Neither may an adopted child be represented. (b) The representative succeeds not the person represented but the one whom the person represented would have succeeded (Art. 971). Thus, the representative must be qualified to succeed the decedent (Art. 973), but the representative need not be qualified to succeed the person represented (Art. 971). The person represented need not be qualified to succeed the decedent, in fact, the reason why representation takes place is that the person represented is not qualified because of predecease or incapacity, or disinheritance. i.Since the representative does not succeed the person represented, he is not liable for the debts of the latter. 11 of 25

ii.Because the property inherited by the representative does not come from the person represented, if under the will of the latter, the representative is given less than the other representatives, the representative still gets an equal share in the property of the person whom the person represented would have succeeded. Ex.: T has 2 children A and B. A has two children A-1 and A-2. If A dies giving 2/3 of his estate to A-1 and 1/3 to A-2, if later, T dies, A-1 and A-2 will get equal shares in A's inheritance from T or as A's representatives. (c) The right of representation takes place only in the direct descending line: never in the ascending line (Art. 972). (d) In the collateral line, representation takes place only in favor of children of brothers and sisters, whether full or half blood (Art. 972, second par.). Hence, grandnephews and grandnieces do not represent. (e) The representative must himself be capable of succeeding the decedent (Art. 973). Ex.: A has a child B who has a child B-1. If B disinherits B-1 in his will, B-1 can still represent B in the succession of A; because B-1 succeeds A, not B. (f) The representative must at least be conceived at the time succession opens. (g) When there is representation, the heirs inherit per stirpes, not per capita (Art. 974). That is, all those in a group inherit in equal shares, because per stirpes means inheritance by group. PER STIRPES – the representative or representatives receive only what the person represented would have received. If there are more than one representative in the same degree, then divide the portion equally, without prejudice to the distinction between legitimate and illegitimate children, when applicable. (h) A renouncer may not be represented but he can represent the person whose inheritance he has renounced (Arts. 976, 977). The reason for this is found in art 971 (2 nd sentence): “The representative does not succeed the person represented but the one whom the person represented would have succeeded”. (i) Illegitimate children of legitimate children cannot represent because of the barrier, but illegitimate children of illegitimates can represent. In other words, if child to be represented is legitimate – only legitimate children/descendants can represent him (Art. 922). If the child to be represented is illegitimate – both legitimate and illegitimate children/descendants can represent him (Arts. 902, 989, 990) (j) When nephews and nieces survive with uncles or aunts, they inherit by representation. If they alone survive, they inherit in equal portions or per capita (Art. 975). i.A died intestate leaving an estate worth P24,000. He is survived by his wife W, his brother B, and nephews C-1 and C-2, sons of his deceased brother C. Divide A's estate. W gets 1/2 or P12,000. B gets P6,000 (1/2 of the other P12,000). C-1 and C-2 get P3,000 each (They divide per stirpes the remaining P6,000). ii.Suppose in the above problem, B is also dead, survived by his son B-1. How should A's estate be divided? W gets 1/2 or P12,000 Nephews B-1 and C-1, and C-2 divide the other P12,000 per capita because they alone survive, their parents being already dead and they have no surviving uncles or aunts.

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LEP LECTURE NOTES – Succession (10-01-2011) (Taken from pp. 54-75, Succession in a Nutshell by Justice Alicia V. Sempio-Diy and pp. 426-504, Jottings and Jurisprudence in Civil Law (Succession) by Ruben F. Balane) CHAPTER 4: PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS

ACCRETION 1. Meaning of accretion: “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. 1015, NCC). 2. Reason for accretion: Based on the presumed will of the deceased that he prefers to give certain properties to certain individuals, rather than to his legal heirs. Thus, accretion is preferred to intestacy. 3. Requisites of accretion: (a) Unity of object (the same inheritance, legacy, or devise). (b) Plurality of subjects (two or more persons are called to the same property pro indiviso). (c) Vacant portion: Due to i.Repudiation ii.Pre-decease iii.Incapacity iv.If a suspensive condition is not fulfilled. v.If a particular heir cannot be identified. **Meaning of pro indiviso (i) Either the co-heirs are instituted without individual designation of shares, e.g. “I institute a and B to one-half of my estate,” or (ii) The co-heirs are instituted with the specification that they share equally (“in equal shares”) or that they have the same fractional sharing (“one-half or one-third, etc.”) for each (article 1017); e.g. “I institute A, B, and C to one-half of my estate in equal shares” or “I institute A, B, and C to one-half of my estate, each of them to take one-third of that one-half.” *** All that the law requires is that the institution be pro diviso, which means “as undivided” or in common”. The term does not import equality. There will be accretion even if the sharings are unequal as long as the result of the institution is co-ownership. 4. Is there accretion in legal succession? Yes. Art. 1018 provides that in legal succession, the share of the person who repudiates the inheritance always accrues to his co-heirs. Art. 1018 applies also to incapacity, without prejudice to representation (Manresa). Art. 1018 does not speak of predecease, because here, there is no vacant portion; that is, the predeceased heir never had a chance to inherit. *** In intestacy, accretion is subordinate to representation and substitution. 5. Accretion among compulsory heirs takes place only when they are instituted to the free portion. If it is the legitime that is repudiated, other compulsory heirs take the share of the repudiating heir in their own right, not by accretion (Art. 1021). 6. Accretion also takes place among devisees, legatees, and usufructuaries under the same condition established for heirs (Art. 1023). 7. Examples: (a) A gives a particular car to X and Y in his will. If X repudiates, entire car goes to Y. If X predeceases A, the car also goes to Y. (b) T gives the first floor of a house to X, and the second floor to Y. Accretion would not apply here, because the shares of X and Y have been earmarked. (c) A gives 1/4 of his money in the PNB to X and 3/4 to Y. Accretion takes place even if the shares are not equal. 13 of 25

(d) T left to his nephews A, B, and C all his money at PNB at the time of his death. When T died, he had P30,000 at PNB. A, however, died before T, leaving a child A-1. Who gets the P30,000? B and C get A's share by accretion. A-1 does not inherit because there is no representation among voluntary heirs. (e) T instituted his only cousin and the latter's daughter as his only heirs. If the cousin turns out to be incapacitated, who gets his share, his daughter or T's intestate heirs? The daughter, by accretion. (f) A and B, brothers of T, are the latter's only surviving relatives. T dies. i.If A repudiates, B gets A's share by accretion. ii.Suppose A has a child, his child cannot represent him because one who renounces cannot be represented. iii.If A is incapacitated instead of having repudiated his share, will his share accrue to B? No, because A's child gets A's share by representation. In the collateral line, in intestacy, children of brothers or sisters represent. If this is testacy, A's child cannot represent because there is no representation among voluntary heirs, so A's share will accrue to B. 8. Other cases: (a) T institutes in his will his two legitimate children X and Y, and friend F, to his estate of P60,000. T dies. Divide his estate. X gets P15,000 (his legitime) plus P10,000 of the free portion. Y gets the same share as X. F gets P10,000. (b) T has two legitimate children A and B. In his will, he left his estate worth P100,000 to his two children A and B, 1/4 each, and 1/2 to his friend F, who has a child F-1. If F predeceases T, his child F-1 cannot represent him because he is a voluntary heir. So his share goes to A and B as intestate heirs (Art. 1022). If B predeceases T, his share goes to A in the latter's own right, not by accretion. So A gets his own legitime of P25,000 and B's legitime of P25,000. F gets P50,000. (c) T gave P10,000 deposited at PNB to friend F, and P10,000 deposited at PBC to friend F-1. No substitute was appointed. S, sister of T, was not given anything. If F repudiates, who gets his share? There is no accretion here because the shares are earmarked. So S, sister, gets F's share as sole intestate heir.

CAPACITY TO SUCCEED BY WILL OR BY INTESTACY 1. Applies to both testate and intestate succession. 2. Capacity to succeed is also called passive testamentary capacity. *** 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. 3. Kinds of incapacity: (a) Absolute – cannot inherit from anybody (b) Relative i.Because of possible undue influence (Art. 1027). ii.Because of public policy and morality (Art. 1028 in relation to Art. 739). iii.Because of unworthiness (Art. 1032). *** Articles on causes of incapacity to succeed: 1. Art 1027, pars. 1-5 – applicable only to testamentary succession 2. Art 1027, par. 6 – applicable to all kinds of succession 3. Art 1028 – applicable only to testamentary succession 4. Art 1032 – applicable to all kinds of succession 4. Absolute incapacity: (a) Individuals, corporations, associations not permitted by law or their charter to inherit (Art. 1026, 1027 [6]). But all other corporations or entities (the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes) may inherit under a will (Art. 1026, first par.). (b) A child not yet conceived, or abortive infants (Art. 1025). 5. Incapacity to succeed because of possible undue influence (Art. 1027): - This incapacity does not include the legitime or intestacy, because heirs inherit by law. Thus, a 14 of 25

person may be disqualified to succeed by will under these paragraphs but be entitled to a legitime or to an intestate portion. - No actual duress or influence need be shown; these are conclusively presumed. Proof of absence of duress or influence is irrelevant and will, anyway, not remove the disqualification. (1) Priest who heard last confession or gave spiritual aid during last illness of decedent (Art. 1027 [1]). Requisites: 1. The will must have been executed during the testator’s last illness; 2. The spiritual ministration must have been extended during the last illness; 3. The will must have been executed during or after the spiritual ministration. Reason: To safeguard the heirs from the sinister and undue influence which may be exercised by a priest or minister over a dying man. - If the priest is a compulsory or intestate heir of the deceased, his legitime or intestate share is not included in the incapacity. (2) Relatives of the priest in (a) within the 4th degree of consanguinity, or the church or organization to which such priest belongs (Art. 1027 [2]). Reason: To prevent indirect violations or circumventions of par.1. (3) Guardian with respect to testamentary dispositions of ward before approval of guardian's final accounts (Art. 1027 [3]). - Except when guardian is an ascendant, descendant, brother, sister or spouse of the ward, in which case disposition is valid. - Relatives of the guardian are not included in the incapacity. - For disqualification to apply, the will must have been executed by the ward during the effectivity of guardianship and its dissolution. (4) Attesting witness to decedent's will or the spouse, parents or children of such witness, spouse, parents or children (Art. 1027 [4]). - Brother, sister, and grandchildren and other descendants are not included. - If there are more than three attesting witnesses, incapacity does not apply. - The notary public who acknowledged the testator's will is not disqualified. (5) Physician, surgeon, nurse, health officer, or druggist who took care of testator during his last illness (Art. 1027 [5]). - Relatives of the physician, etc. are not included. - The care of the testator must be continuing or regular, not an isolated service. -Physician, etc. are not disqualified to inherit by intestacy because the law says “testator,” and intestacy takes place by operation of law. (6) Individuals, associations and corporations not permitted by law to inherit (Art. 1027 [6]). 6. Incapacity by reason of public policy or morality (Art. 1028): This is the same as void donations in Art. 739, NCC. (a) Made between persons who were guilty of adultery or concubinage: i.Criminal conviction not necessary; guilt can be proved civilly. ii.Legacy or device to a concubine of the testator in the latter's will is void. (b) Made between persons found guilty of the same criminal offense, in consideration thereof. Ex.: A and B committed murder and were duly convicted. In A's will, he gave B a legacy for cooperating with him in the murder. The legacy is void. (c) Made to a public officer or his wife, descendants, and ascendants, by reason of his office. i.Example is a disposition in the will of an employee in favor of his superior so that he (the employee) can get a promotion. ii.But if the disposition is made by a superior in favor of an employee, the disqualification does not apply, unless morality is involved, like if the employee is the mistress of the superior officer. 7. Special dispositions: (a) For prayers and pious works for the benefit of the soul of the testator, made in general terms (Art. 1029). i. Application of disposition must not be specified; i.e., general. ii. Executor must deliver 1/2 to the church to which the testator belongs, and one-half to the State. iii. Action of executor must be with court approval. (b) Disposition in favor of the poor in general (Art. 1030): i.Limited to the poor in the domicile of the testator at the time of his death. ii.The following determines the distribution: 15 of 25

(aa) Person appointed by the testator; (bb) If no one is appointed by the testator, the executor determines; (cc) If there is no executor, the municipal judge, mayor, and municipal treasurer, who shall decide by a majority of votes, subject to the approval by the RTC judge. iii. The above rules also apply even when the testator specifies the poor of a definite locality. (c) Provision in favor of a disqualified person even in the guise of an onerous contract or made through an intermediary (Art. 1031). i.Void. ii.Refers to absolute incapacity or incapacity by reason of possible undue influence or immorality. iii.Unworthiness is not included, since there can be condonation in unworthiness. Legacy in favor of a person disqualified by unworthiness is implied condonation. 8. Incapacity by reason of unworthiness (Art. 1032): (1) Parents who have abandoned their children or induced them to lead immoral lives or attempted against their virtue (Art. 1032 [1]); i.Applies to daughters and sons, and even grandchildren ii.Attempt “against their virtue” does not need criminal conviction. *** 3 grounds: (a) Abandonment, (b) inducement to lead a corrupt or immoral life and (c) attempt against a daughter’s virtue. - all of these 3 grounds are also grounds for disinheritance of parents or ascendants under Article 920. (2) Any person convicted of an attempt against the life of the testator, his spouse, descendant, or ascendant (Art. 1032 [2]); i.Also a ground for disinheritance under article 919. ii.Since conviction is necessary, if testator dies before conviction, await final judgment. iii.An acquittal on reasonable doubt removes the incapacity. iv.Heir need not be convicted before testator's death. If conviction comes after testator's death, effect is retroactive. v.Pardon by the President does not erase the incapacity. vi.If heir dies before final judgment, his heirs can still inherit because he has not been convicted, as long as testator dies ahead of him. (3) Any person who has accused the testator of a crime punishable by six years of imprisonment or more if accusation has been found groundless (Art. 1032, (3)): i. Also a ground for disinheritance under article 919. ii. Acquittal must be definite. iii. If acquittal is based on reasonable doubt, there is some ground for the accusation; hence, incapacity does not arise. (4) Failure to report violent death of testator within one month (Art. 1032 (4)): i. This is of doubtful application now, since under present law, no one is really bound to make an accusation except the authorities concerned. ii. Heir or legatee or devisee should be at least 21. (5) Conviction of adultery or concubinage with spouse of testator (Art. 1032 (5)): i. This is also a ground for disinheritance under Article 919. ii. Conviction by final judgment is necessary. iii. The guilty spouse is not included in this incapacity, but he or she cannot also inherit if there was already a decree of legal separation between testator and spouse. (Art. 63 (4), Family Code). (6) Any person who causes testator to make a will or to change one by fraud, violence, intimidation, or undue influence (Art. 1032 (6)); (i) also a ground for disinheritance under Article 919. (7) Any person who by the same means mentioned in (f) prevents testator from making a will or from revoking one already made, or who supplants, conceals, or alters the latter’s will (Art 1032 (7)); (8) Any person who falsifies or forges a supposed will of the deceased (Art. 1032, (8)). 9. 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: the legitime, testamentary, and intestate. Thus, unworthiness and disinheritance have identical effects. Unworthiness is disinheritance imposed by law. Unworthiness deprives the unworthy heir even of the legitime per Art 1035. 16 of 25

10. Condonation (a) Cause of unworthiness is without effect if there is condonation (Art. 1033): (i).Implied condonation: If, having knowledge of the act of unworthiness, the testator gave the person concerned an inheritance, legacy or devise. (ii).Express condonation: If, not knowing of the act of unworthiness at the time of the execution of the will, but having known of the same subsequently, the testator condones it in writing, public or private. (b) If implied condonation is made in a void will or revoked will, the incapacity remains. *** Most of the grounds for unworthiness are also grounds for disinheritance, viz. paragraphs 1, 2, 3, 5 and 6 of Art 1032. There is therefore no problem if the offended party does not choose to disinherit the offending party since the rules on unworthiness will operate. As to restoration of capacity however, the rules are different. In disinheritance, “subsequent reconciliation” is enough [Art 922], while under those on unworthiness, either a written pardon or a subsequent will is required. 11. When is capacity or incapacity to be judged (Art. 1034): (a)Consider the same at the time of the death of the testator. (b) In the second, third, and fifth paragraphs of Art. 1032, wait for the final judgment. (c) If the institution is conditional, consider the time of compliance or fulfillment of the condition. (i).Condition here is suspensive, not resolutory. (ii).If heir, legatee, or devisee dies before condition is fulfilled testamentary disposition becomes inoperative. (d) Capacity to succeed is governed by the law of the nation of the decedent, whether succession is testate or intestate (Arts. 1039; 16, sec. par., NCC). 12. Prescriptive period for declaration of incapacity and recovery of property (Art. 1040): (a) Within 5 years from the time incapacitated person took possession of property. (b) Anyone who has an interest in the succession (person who inherits in place of the incapacitated heir) may bring the action. *** In effect, this is a special prescriptive period for this action. It is an exception to the prescriptive periods for recovery of movables (8 years) and of immovables (30 years) laid down respectively in Articles 1140 and 1141. 13. Representation in case of incapacity (Art. 1035): (a) Representation in unworthiness (as also in predecease and disinheritance) extends not only to the legitime, but also to whatever portion in intestate succession the person represented may have been entitled to. (b) there is no right of representation with respect to the free portion. (b) the incapacitated heir is excluded from the usufruct and administration of the property in question. 14. Effects of act of incapacitated heir, legatee, or devisee with respect to hereditary property. (a)Alienations and acts of administration before the judicial order of exclusion are valid as to third persons who acted in good faith. (Art. 1036). - The validity of alienation is determined by the good faith or bad faith of the transferee, not of the transferor (the excluded heir). 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 benefit of this provision since he did not acquire for value. (b)Co-heirs have, however, the right to recover damages from the incapacitated heir (id.) (c) Incapacitated heir may demand indemnity for expenses for preservation of property, and may enforce credits due to him from the estate. (d) As to improvements introduced by incapacitated person, apply the rules on possession in good faith or bad faith. (e) Incapacitated person must return property together with its accessories (like the increase in property by alluvium) (Art. 1038) (f) Incapacitated person is liable for all fruits and rents received or could have been received through the exercise of due negligence (id.). - The disqualified heir is considered a possessor in bad faith. The rule in Art 1038 is similar with Art 549 on the obligation of possessors in bad faith: (i) the obligation to return the ting with accessions; and (ii) liability for fruits which were received and could have been received. 17 of 25

ACCEPTANCE AND REPUDIATION OF INHERITANCE 1. General principles: (a)Acceptance or repudiation is a purely voluntary and free act (Art. 1041, NCC). (b)It is more usual to accept than to repudiate; hence, while acceptance may be presumed, repudiation requires formalities. 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. (c)There can be partial acceptance and partial repudiation. (d)Even the legitime may be repudiated, because no one can be compelled to accept the generosity of another. (e)The effects of acceptance or repudiation always retroact to the moment of death of the deceased (Art. 1042). 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 or possessed it from the moment of the decedent’s death. C. Conditional Institutions – The principle of retroactivity is not overridden even if the institution 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 (Art 1187). Similarly, if the condition does not happen, the property goes to the appropriate successor, wit the same retroactive effect. However, for conditional institutions, the provisions of Art 880 should be complied with: to wit, the property should be placed under administration during the interim. (f)No person may accept or repudiate an inheritance unless he is certain of: (i).The death of the testator; (ii).His right to the inheritance (Art. 1043). (g) If an heir dies without having accepted or repudiated, his right shall be transmitted to his heirs (Art. 1053). (h) If several heirs are called to the same inheritance, some may accept the others may repudiate (Art 1504). (i) If a person who is called to the same inheritance by will and ab intestato repudiates the inheritance in his capacity as testamentary heir, the repudiation includes his capacity as intestate heir (Art. 1055). (j) If the heir repudiates the inheritance as intestate heir without knowledge that he has been named as testamentary heir, he may still accept as testamentary heir. (Art. 1055) Note: 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. (k) Acceptance or repudiation, once made, is irrevocable and cannot be impugned except for causes that vitiate consent, or when an unknown will appears (Art 1056). 2. Forms of acceptance: (a)Express acceptance: Public or private document (Art. 1049) (b)Tacit acceptance: (i).Results from acts revealing intent to accept. In general, a tacit acceptance is inferred from acts of ownership performed by the heir over the property. (ii).Acts of mere preservation or provisional administration do not imply acceptance (id). (iii).Examples of tacit acceptance (Art.1050): (aa)If heir sells, donates, or assigns right to a stranger, or to his co-heirs or any of them. - 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. (bb)If heir renounces right, even gratuitously, for the benefit of one or more of his co-heirs. - This is not in fact renunciation but a conveyance in favor of the co-heirs specified. It partakes of the nature of donation and therefore must conform to the prescribed form for donations in Arts 748 and 749. (cc)If heir renounces right for a price in favor of co-heirs indiscriminately. - This is not renunciation but a sale of his portion and therefore constitutes tacit 18 of 25

acceptance; - But if renunciation is gratuitous in favor of co-heirs indiscriminately, this is true renunciation and cannot be treated as a tacit acceptance. Indiscriminate renunciation means a renouncement, gratuitously made, in favor of all the co-heirs who would get the renounced portion by virtue of accretion. The same rule applies even if the part renounced in this manner if the legitime, as long as renunciation is indiscriminate. 3. Forms of renunciation (Art 1051): A. Public or authentic instrument B. Petition filed in the settlement proceedings - the form of renunciation is stricter since it is not beneficial for the heir. 4. Who may accept or repudiate: (a)Any person who has free disposal of his property (Art. 1044). (b)Minors and incapacitated persons: (i).Acceptance may be made by parents or guardians (id.). (ii).Repudiation by parents or guardian must be with judicial authorization (id). (c)Deafmutes (Art. 1048); (i).If literate, he can accept or repudiate personally or through an agent. (ii).If illiterate, acceptance must be by guardian, who can also repudiate but with judicial approval. (d)Inheritance left to the poor (Art 1044): (i).Right to accept belongs to person designated by testator. (ii).In default of above, apply Art. 1030; i.e. majority vote of municipal judge, municipal mayor, and municipal treasurer, but with approval of RTC. - Note that: (1) these authorized individuals cann 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. (e)Corporations (Art. 1045): (i).Acceptance may be made by their lawful representatives qualified to acquire property in their behalf. (ii).Repudiation may be made by the same representatives but only with court approval. (f)Public official establishments (those devoted to public purposes like charity and education and supported by public funds) (Art. 1046) (i) Approval of the proper government agency or department head is necessary. 5. Acceptance by creditors (Art 1052): (a)Creditors may accept if repudiation by heir prejudices them. - This is a case of accion pauliana, which is a right given to creditors to impugn or set aside contracts, transactions, or dispositions of their debtors which will prejudice or defraud them. (b)Creditors must petition the court to allow them to accept in name of heir. (c)Acceptance by creditors should be only to the extent of their credits. (d)Any excess after acceptance by creditors pertains to the proper testate or intestate heirs. 6. Period for accepting or repudiating (Art. 1057): (a)Thirty (30) dates after court issues an order of distribution. (b)If there is no acceptance or repudiation within said period, inheritance is deemed accepted.

COLLATION 1. Meaning of collation: It has three meanings: 1. Collation as computation – This is a simple accounting or arithmetical process, whereby the value of all donations inter vivos by the decedent is added to his available assets in order to arrive at the value of the net hereditary estate. (see Arts 908, 1061) 2. Collation as imputation – 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. 3. Collation as return – 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 inofficious is returned to the decedents estate to satisfy the legitimes. 2. Rules on imputation of donations inter vivos: (Art. 1062) A. Donation inter vivos to compulsory heirs: General rule – should be imputed to the heir’s legitime; i.e. considered an advance on the legitime. (same with Arts. 909 & 910) Exceptions: 1. If the donor provides otherwise i.e., he does not want donation to be charged to an heir's legitime. But it must still be imputed to the free portion in order to compute the legitime of the 19 of 25

compulsory heirs (Art. 1062); or 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. But the donation will have to be imputed to the free portion. Ex. D has two sons, A and B. He gave A a donation of P10,000 expressly stating in the donation that the same was not collationable. If D later dies intestate leaving an estate of P90,000, A and B will each get P45,000. Obviously, D wanted to give A a preference of P10,00. Anyway, the legitime of B was not impaired. Remember: a. The surviving spouse is a compulsory heir, but she is not included in Art. 1061 because: 1. Donations during the marriage are null and void. 2. Donation propter nuptias to a future spouse is donation to a stranger and must be imputed to the free portion because at that time, the donee was not yet a spouse, hence, not a compulsory heir. b. Proceeds of life insurance are not collationable because they are not considered donations. B. Donation inter vivos to strangers – 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; 3. When made to compulsory heirs who renounce the inheritance; 4. When in excess of the compulsory heir’s legitime, as to the excess. 3. Rule on testamentary dispositions to compulsory heirs: (Art 1063) General rule: 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. Should the testator provides otherwise, the testamentary disposition in favor of the heir will be merged with his legitime. This will make the disposition illusory. 4. Meaning of “not collationable”: First, property or value should be computed or added, but should be charged to the free portion (not to the legitime). Second, property should not be computed or charged to the estate at all, because it is not part of the estate. (Art. 1067), like expenses for support of education, medical attendance, customary gifts. 5. As a general general rule, all donations inter vivos, whether given to compulsory heirs or to strangers, must be reduced if found inofficious. 6. Only the value of the thing donated at the time of the donation should be collated (Art. 1071). 7. Is legacy or devise subject to collation? Art. 1063. Property left by will (like a legacy or devise) is not deemed subject to collation if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (a) This means that the legacy or devise should be imputed to the free portion, not to the legitime. (b) Example: T has two legitimate children, A and B. in T's will, he gave A a legacy of P10,000. There was no other provision in his will. If T dies with an estate of P100,000, how should this estate be divided? Answer: Give P10,000 legacy to A, and divide the P90,000 between A and B, or P45,000 each. The P10,000 legacy to A does not impair B's legitime, which is P25,000 (½ of P50,000). (c) Suppose in the above example, T gave the P10,000 to A as a donation inter vivos. No preference to A was clearly intended by T. So upon T's death, leaving an estate of P90,000, add the P10,000 donation to A to the P90,000, and from the total estate of P100,000, give P40,000 to A (he already got P10,000 as advance legitime), and give B P50,000. 8. Collation by grandchildren who inherit from their grandparents (Art. 1064). - This is collation in the sense of imputation. Covers situation where grandchildren inherit by representation concurrently with children (uncles and aunts of the grandchildren) who are inheriting in their own right. - What the grandchildren have to collate (impute to their legitime): 1. Whatever the parent whom they are representing would have been obliged to collate; and 2. Whatever they themselves have received from the grandparent by gratuitous title (subject to the same rules and exceptions laid down in Article 1062) 9. What donations are not collationable: (a) Parents are not obliged to bring to collation in the inheritance of their own parents or ascendants 20 of 25

properties which had been donated by the latter to their children (Art. 1065). Reason: The parents were not the ones who received the donations. imputed to the free protion being a donation to stranger. (b)

But the donation should

Donation to the spouse of a child should not be brought to collation (Art. 1066): (i) The donation here is not considered an advance on the child's legitimate because it was not given to him, but it must still be imputed to the free portion of the estate of his parent. (ii) But if the donation was given to the spouses jointly, the ½ share pertaining to the child of the donor must be brought to collation.

(c) Expenses for support, education, medical attendance even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation (Art. 1067). (i) Reason: These expenses are not donations but part of the moral, social, and legal obligations of the parents towards their children. (ii) Education here means only up to high school, because college education is covered by Art. 1068. (d) Expenses of parents in giving children professional, vocational, pr other career shall not be brought to collation unless the parents so provide or unless they impair the legitime (like Doctor of Philosophy degree obtained by a child abroad at the expense of the parents). (i) But when collation is required, the sum that the child would have spent had he lived with the parents must be deducted (Art. 1068). (e) Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit are not chargeable to the legitime of the child or descendant. Note: Justice J.B.L. Reyes had believed that cash wedding gifts are not included in the above Article: while Justice Paras believed otherwise, the reason behind both gifts being the same, i.e., the sentimental value of the child's wedding to the parents. (f) But payment by parents of a child's debts, election expenses, fines, and similar expenses are collationable (Art. 1069). (i) The items mentioned constitute donations by the parent to the child and, therefore, should be treated like other donations to compulsory heirs under Article 1062. 10. What should be brought to collation, the thing or its value? (Art. 1071) (a) Only the value of the thing at the time donation was made, not the thing itself, shall be brought to collation (Art. 1071). The thing's subsequent increase or deterioration and even its total loss or destruction, be it accidental or culpable, shall be for the account and risk of the donee (id.) 11. How to equalize shares of heirs if there is collation (Arts. 1073, 1074): (a) Co-heirs shall receive properties of the same nature, class, and quality. (b) If donated property is immovable, co-heirs should receive the cash equivalent or in securities, or sell other properties at public auction. (c) If donated property is movable, co-heirs can select an equivalent of other personal property in the estate at its just price. - 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. 12. Obligation to return if donation is inofficious (Art. 1075) - This article uses collation in the sense of return. - When donation turns out to be inofficious, then the obligation to return it to the estate arises as of the time the succession vests: i.e. the time of decedent’s death, because it is from that time that the compulsory heir’s right to the inheritance becomes absolute (Art 777). From that time therefore the compulsory heir is entitled to the fruits and interest to the extent that the donation is found to be inofficious. 13. Reimbursable expenses of the donee who is obliged to return the inofficious donation (Art. 1076) (a) Necessary expenses for preservation. (b) Useful expenses - improvements to immovables which have increased value of property. (c) Ornamental expenses - works for mere pleasure of donee – no reimbursement demandable but right of removal is granted to the donee is no injury to the estate will be caused. 14. Problems: (a) T had two children X and Y. During his lifetime, T gave child X P10,000. Later, in his will, T distributed his estate of of P90,000 as follows: X- P15,000 Y- P25,000 21 of 25

Friend F- P50,000 When T died, X complained, claiming that he was not given his legitime. Is X right? Answer: The P10,000 earlier given by T X is collationable, so that T's estate is actually valued at P100,000. The legitime of X and Y is ½ of P100,000 (P50,000) or P25,000 each. X had already received from T P10,000. Add to this the P15,000 that T gave him in the latter's will, and ghe actually received his legitime of P25,000. (b) X has three children, A,B, and C. During his lifetime, X gave a donation of P60,000. When X died, he left an estate of P30,000. Divide X's estate. Answer: X's estate is actually P90,000 (the P60,000 donation to A and the remainder of his estate of P30,000). The legitime of A,B, and C is, therefore, P45,000. Divide this into three, and a, B, and C each gets a legitime of P15,000. B and C should get the remaining P30,000 of X's estate as their legitime. X gets his legitime of P15,000 and the free portion of P45,000 (imputing his donation to his legitime and the free portion). So X's donation is not inofficious. (c) T has two legitimate children A and B. in his will, T gave a legacy of P80,000. However, when T died, his estate minus A's legacy would only be P20,000. Should A's legacy would only be P20,000. Should A's legacy be reduced? Answer: The total estate of T is P100,000 (P80,000 plus P20,000), so the legitime of A and B is P50,000 or P25,000 each. In order to complete B's legitime of P25,000 each, while the rest of A's legacy would be taken from the free portion.

PARTITION The immediate effect of decedent’s death is the vesting of the successional rights of the successors, because – in Art. 777’s infelicitous language – “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 – or what remains after all the unpaid debts are paid, and the value of all donations inter vivos added (Art 908). 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, 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 law is 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 two (2) methods: I. Extrajudicial agreement among the heirs or II. Judicial proceedings. The sequence may be outlined thus: I. Upon the decendent’s death – co-ownership of heirs over net hereditary or partible estate II. Subsequent partition 1. by extrajudicial agreement (Rule 74, Section 1, Revised Rules of Court) 2. through judicial order in appropriate settlement proceedings (Rule 90, Revised Rules of Court) 1. General Principles (a) Where there are two or more heirs, the whole estate of the decedent is, before partition, owned in common by such heirs, subject to the payment of the debts of the deceased (Art. 1078, NCC). (b) In partition, the thing itself may be divided, or its value (Art. 1079). (c) Partition made by the decedent inter vivos or by will shall be respected, provided it does not prejudice the legitime of compulsory heirs (Art. 1080). (d) A person may, by an act inter vivos or mortis causa, entrust the power to make partition of his estate after his death to any person (Art. 1081) callled a mandatary, provided: (i) The mandatary should not be a co-heir; (ii) the partition by the mandatary may be rejected by the heirs, in which case the court will decide the conclict. 22 of 25

(e) while as a general rule, partition can be demanded as a matter of right at any time, the testator can prohibit the division for a period not exceeding 20 years, which applies even to the legitime, except(i) For causes that dissolve a partnership; or (ii) when the court finds compelling reason to order a partition upon the petition of a co-heir (or colegatee or co-devisee) (Art. 1083). ** Causes that dissolve a partnership (Arts 1830-1831): (i) The business becomes unlawful. (ii) Insolvency of one partner. (ii) Civil interdiction of one partner. (iv) Insanity of one partner. (v) It has become impractical to carry out the business. (vi) Business can be carried out only at a loss. (f) The co-heirs can agree on indivision for a period not exceeding 10 years, renewable for like periods (Art. 494, par. 2) (g) If a condition is imposed on some voluntary heirs: (i) Said heirs cannot demand a partition until the condition is fulfilled. (ii) The co-heirs may, however, demand sufficient security until the condition is fulfilled or can never be fulfilled (Art. 1084). (h) Partition ends the co-ownership among the co-heirs as to the thing partitioned. Partition may be actual or constructive. (i) Actual – physical division of the thing among the co-heirs (ii) Constructive – any act, other than physical division, which terminates the co-ownership (such as consolidation, sale to third person [Arts 1082 and 1086] 2. How is partition made (Arts. 1085, 1086, 1087): (a) Equality shall be observed as far as possible in nature, quality and kind. (b) If the estate is indivisible or would be impaired if divided (like a restaurant business or a house), it shall be adjudicated to one heir, who should pay the shares of the other heirs in cash. (c) Any heir can demand that the thing be sold at public auction where strangers can participate. (d) Co-heirs should mutually reimburse one another the income and fruits received, and necessary and useful expenses. (e) Damages due to malice or neglect of a co-heir are deductible. 3. Legal redemption among co-heirs (Art. 1088). (a) Takes place when any heir sells his hereditary rights to a stranger before partition. (b) Requisites: (i) There must be at least two or more heirs. (ii) One heir must sell his hereditary rights. (iii) The sale must be to stranger. If the buyer is a co-heir, there is no right of redemption. (iv) the sale must be before the partition. (v) At least one co-heir must demand redemption; but two heirs may redeem in proportion to their shares in the inheritance. Note: A person who is not a co-heir cannot demand redemption, like the wife of the co-heir. (vi) The demand must be made within one month from notice in writing of the sale by the vendor. Note: Even if there was no demand, but if the other co-heirs knew of the fact of sale, the period of 1 month shall also run from the moment of knowledge. - The only purpose of the notification is to inform or give knowledge. (vii) Price to be paid by the redemptioner is the same price of the sale. 4. After the agreement of partition is approved, Art. 1088 does not apply anymore because the parties are no longer co-heirs but are now co-owners. So, apply Art. 1620, which is legal redemption among co-owners. In such a case, the requisites are the following: (a) if the price of alienation is grossly excessive, the redemptioner shall pay only a reasonable price. (b) If two or more co-owners want to redeem, they may do so in proportion to their respective shares. (c) Right must be exercised within 30 days from notice in writing by the prospective vendor (i.e., before the sale is actually made) to his co-owners. 5. Delivery of title to co-heirs if property remains undivided (Art. 1090): (a) “Title” refers to the document of ownership (like the TCT). (b) The title must be delivered to the heir having the largest interest in the property, with authentic 23 of 25

copies of the title given to the other heirs. (c) if the co-heirs have the same interest, title should be given to the oldest heir, again with authentic copies given to the other heirs. (d) It is the estate who will pay the titles. 6. Effects of partition (Art. 1091): (a) After the partition, each heir acquires exclusive ownership of the property or share adjudicated to him. (b) Rights of third persons are not however, affected by the partition. (c) If a co-heir had sold his share before the partition is made, the purchaser acquires the property adjudicated to said heir. 7. Obligation of mutual warranty among the heirs (Art. 1092): (a) After the partition, the co-heirs are reciprocally bound to warrant the title to (warranty against eviction), and the quality of (warranty against hidden defects) each property adjudicated. (b) The obligation to warrant on the part of each heir is proportionate to his share. (c) If an heir is insolvent, the other co-heirs are liable for his part in the warranty, deducting the share of the one entitled to indemnity. (d) Those who pay the liability of the insolvent heir have the right of reimbursement should the financial condition of said heir improves. (e) Action to enforce warranty must be brought within 10 years from the date the right of action accrues (Art. 1094). 8. Adjudication of a credit to a co-heir (Art. 1095): (a) If a credit in the estate is assigned to a co-heir, the others are liable for the insolvency of the debtor only at the time the partition is made, not for the debtor's previous insolvency. (b) Warranty of the solvency of the debtor is enforceable only within 5 years following the partition. (c) Co-heirs do not warrant bad debts if known to and accepted by the distributee. (d) If a bad debt is subsequently collected by the estate, the amount shall be shared proportionately by the heirs. 9. Instances when there is no obligation of mutual warranty among co-heirs (Art. 1096): (a) Partition by the testator himself, unless it appears or it may be presumed that his intention was otherwise, but the legitime must always remain unimpaired; (b) Agreement among the co-heirs to suppress the warranty, unless there was bad faith; (c)When the eviction was due to a cause subsequent to the partition, or was caused by the fault of the distributee of the property (like loss of the property by prescription). 10. Rescission or nullity of the partition: (a) partition may be rescinded or annulled for the same causes as contracts (Art. 1097): (b) Partition, judicial or extrajudicial, may also be rescinded on account of lesion (Art. 1098): - Lesion is economic injury, where the party receives less than he is entitled to receive. (i) Applies when a co-heir receives a thing the value of which is less by at least ¼ than the share to which he is entitled (Note the slight variation from pars. 1 and 2 of Art. 1381 which specifies more than one-fourth); (ii) Value of property is determined at the time of adjudication: (iii) The proper action of the prejudiced heir is for damages. 11. Rescission of partition on account of lesion: (a) If partition was made by the testator, action lies only: (i) When legitime of compulsory heirs is prejudiced, or (ii) When it appears, or may be reasonably presumed, that intention of testator was otherwise (Art. 1099). (b) Action on account of lesion prescribes after 4 years from time partition was made (Art. 1100): (c) Heir who is sued may (Art. 1101): (i) Indemnify plaintiff for his damages; or (ii) Consent to new partition. (d) If indemnity is chosen, payment may be made: (i) In cash, or (ii) Delivery of a thing of the same kind and quality as that awarded to the plaintiff. (id) (e) If a new partition is made, it shall not affect those who have not have been prejudiced, or those who have not received more than their just share (Art. 1101). (f) An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for partition on the ground of lesion (Art. 1102). But he has aright to be indemnified in cash (id.) (g) When one or more objects or securities in the inheritance have been omitted in the partition (Art. 1103). (i) Rescission on the ground of lesion does not lie. (ii) But omitted objects or securities shall also be distributed. 24 of 25

(h) Preterition of compulsory heir in the partition (Art. 1105): (i) Partition shall not be rescinded unless bad faith or fraud on the part of the other heirs is proved. (ii) The culpable heirs shall share in the damages of the prejudiced compulsory heir proportionately. 12. Inclusion of a person not an heir in the partition (Art. 1108): (a) Partition is not completely void, but void only with respect to the part corresponding to the non-heir. (b) The non-heir who got a share must give what he had received to the heir entitled thereto. - end -

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