notes

Civil LawReviewLectureand RecitationNotes

o

Glenn Tuazon, 4-A Atty. Ruben F. Balane SY 2010-11

It is not delivery (tradition) that vests ownership. Succession itself is the mode. You do not need delivery of the thing to the successors.

o

In due time, the successor acquires a right to possession of the thing, which may be in the hands of someone else. But this is an action of assertion/vindication of possession based on ownership.

Midterms – Succession Finals – Obligations and Contracts •

Whatis transferred?

CIVILLAW

o

The inheritance.

•

We are part of the civil law tradition. This is our mindset in approaching problems.

o

Inheritance is defined in 776 as the transmissible rights and obligations of a person

•

Most of Western Europe countries follow the civil law tradition, as well South America – except for the former British Colonies. Include: Louisiana, Quebec, and parts of Black Africa (Senegal, Ivory Coast, Congo). Asia: Philippines (Spain), Indonesia (Portuguese/Dutch influence), China, Japan.

o

Are there intransmissiblerightsand obligations?

•

Common Law: UK, Ireland, All of US except for Louisiana, etc.

•

Civil Law was founded in 450 BC. It is older than the Church. “Rome conquered the world 3 times: by its arms, faith, and law.” - Thus what we study are developments of the Civil Law tradition.

•





Yes. •

1. Purely personal;

•

2. Intransmissible by stipulation

•

3. Intransmissible by operation of law

Are theseconveyedby succession? •

Common Law began around 1066 AD. 

No.

Whatare examples?

SUCCESSION

•

A purely personal obligation or right

General provisions

•

Ex. Right to receive support from one’s parents

•

(774) A mode of acquiring ownership



Givean exampleof a transmissibleobligation.

•

o

X entered into a perfect contract to sell his car to Y, but it has not been consummated. X died. This transfers to his heirs.

•

Whatare the consequencesof Art. 777? o

Is a moneydebt a transmissibleobligation?





Yes.



But is it transmitteddirectlyto the heirs? •



1. Determination of who the heirs will be is determined at the moment of death; also, what law is in effect; what portions they will get, etc.

No. It is paid by the estate, upon claim by the creditor. (Unionbank v. Santibanez)

o

Uson v. Del Rosario: Decedent died during effectivity of the old Civil Code, so the spurious children are excluded (unlike in the NCC, where they would get something)

2. Even before the actual partition of the estate, the heir can dispose can dispose of his/her interest over the inheritance.

Doesthis not violateArticle774? •

No. Although the creditors do not claim directly from the heirs, the effect is the same – what the heirs would have otherwise gotten is diminished, so they are indirectly and ultimately paying the debt.



De Borja v. De Borja – the heir was allowed to onerously dispose of her share even if she did not know how much exactly she would get.



Couldshe havedisposedof it gratuitously? •



o • •

No. They are still transmitted to the heirs.

Whendoestransmissiontake place? o

(777) Transmission takes place from the moment of death

o

This is legal fiction, because you don’t really physically get it the inheritance at the moment of death.

o

Whyis it properto say the rightsto succession“vest”insteadof “get transmitted”?

•

Because you already have that right, albeit inchoate. It only vests upon death of the predecessor.

3. Heirs have a right to substitute their predecessor in an action that survives. 

Bonilla v. Barcena



Patrimonial right – right to prosecute an action

Updateson the abovementionedjurisprudence: o



Yes.

Doesthis provisionon moneyclaimsaffect other claims?

Lee v. RTC (423 SCRA 497) 

An heir can sell his right/interest in property under administration. However, an heir can only alienate such portion of the estate allotted to him in the division of estate.



o

the heirs, but not through succession, but through accession discrete or continua.

So he can only sell his ideal or undivided share in the estate, and not specific properties.

Liu v. Loi (405 SCRA 316) 

An heir can sell his interest in the decedent’s estate, but always subject to the rights of the creditors and the result of the partition.



So if you end up having no share in the estate, then what you sold is subject to the creditor’s claim.

•

Whatis the importanceof distinguishingbetweenheirs andlegatees/devisees? o

This is an important distinction because of the rules on preterition.

o

Heirs – succeeds to an aliquot part of the estate, whether through testate or intestate

COMPULSORY SUCCESSION o

Heirs of Conti v. CA (300 SCRA 345) Legitimes 

o



(886) Legitime – o

Prevented from filing action because the plaintiffs have not established proof that they are the decedent’s heirs.

A part of the testator’s property 

o

An aliquot or fractional part

Which he cannot dispose of gratuitously 

How to resolve: you can continue an action if you are indisputably an heir.

Whyis “gratuitously”underlined? •

Because he can dispose of it onerously. He cannot donate to an extent that will eat into the value of the legitime.

•

But he can sell his properties. Onerous dispositions do not impair the legitime. (Joaquin v. CA)

Whatare the threekindsof succession? o

1. Compulsory

o

2. Testamentary

o

3. Intestate 

•

•

Heirs of Pinchay [?] v. Del Rosario 

•

Reiterated Bonilla case: prior settlement of estate not necessary for heirs to commence action or continue action pertaining to the estate.

In absence or default of valid will

(781)  is a WRONG provision. The heirs acquire rights to the inheritance upon death. Any fruits/accruals after will indeed belong to



So he can gratuitouslydispose? •

YES. But, he cannot eat into the legitime.



•

•

Manongsong v. Estimo: Sale does not affect the value of the decedent’s estate. There is an exchange of value.

•

These two principles simultaneously operate to establish combinations of compulsory heirs

Legitimarycombinations– [recit]

Whoare the compulsoryheirs?– (887) o

1. LC and descendants

o

2. LPs and ascendants (in default of #1)

o

3. Widow or widower

o

4. ICs

Whichare primaryandwhichare secondary? o

Primary – those who are never excluded 

o

Legitimate children/descendants

Secondary – those who receive only in default of the primary 

Legitimate parents/ascendants



Illegitimate parents •

o

•

o

N.B. does not go beyond parents

1 LC, 1 IC 1 LC, 2 IP 3 IC, 2 LP, SS 2 IP; SS 2 AC; 1 LC; 1 IC 1 LC; 2 IC; SS 6 LC; 3 IC 5 IC; SS 1 AC; 2 LP; SS 3 LGP; SS 1 IC; SS 2 AC; 2 LP 3 LC; 2 IC; SS 2 AC; 1 LP; SS

•

Legitimatechildrenor descendants o

Concurring compulsory heirs 

Surviving spouse



Illegitimate children/descendants

Get a constant ½ 

Whatare the two principles? o

LC = ½; IC = ¼ LC = ½ LP = ¼ each; 3 IC = 1/12 each; SS = 1/8 IP = 1/8 each; SS = ¼ LC = 1/6 each; IC = 1/12 LC = ½; SS = ¼; IC = 1/4 each, but reduced to 1/8 LC = 1/12; IC = 1/24 SS = 1/3; IC = 1/15 AC = ½; SS =1/4; LP = 0 1 LGP (one line) = ¼; 2 LGP (other line) = 1/8; SS = ¼ IC = 1/3; SS =1/3 AC = ¼ each LC = 1/6 each; IC = 1/12 each; SS = 1/6 AC = ¼ each; SS = ¼

Note: There are only three cases where nobody gets ½: •

SS – 1/3; IC – 1/3

•

SS, exceptional circumstance of in articulo mortis – 1/3

•

SS – 1/4; IP – 1/4

A) Exclusion and B) concurrence

o

They are the primary compulsory heir

o

The nearer exclude the more remote. So children exclude grandchildren.

o

BUT the grandchildren can inherit if representation is proper

o



Predecease



Disinheritance



Incapacity/Unworthiness

•

Survivingspouse o

Before, in the Spanish Code, she cannot concur with LC; she would only get usufructuary right over the property of the LC. Now, she can concur, and is in fact always an heir. But her share is variable.

o

Whatkindof marriageis neededto becomea SS? 

N.B. If all the children renounce, then the grandchildren will all inherit equally (per capita)

o

Whatis the effect of legal separation? 



o

Final decree will disqualify the guilty spouse from inheriting through compulsory, testamentary, or intestate succession. •



Must be legally, not de facto adopted

Doesthe adoptedchild retainthe right to succeedhis biological parents? 

•

But if only a few renounce and not all, the remaining child/children will get what is left to the exclusion of the grandchildren

The adopted child is, for purposes of succession, in the exact position as a LC 

o

Valid or voidable

o

This is still an open question. There is an obiter in the Stephanie Garcia case that the adopted child does, but it is a mere obiter, and it cites a Family Code provision that might have been repealed by the Domestic Adoption Act.

Legitimateparentsor ascendants o

Nearer exclude more remote. Parents exclude grandparents.

o

Equal division by line. So paternal and maternal lines split by half then divide between the parents.

•

Unless there is reconciliation.

Lapuz v. Eufemio: If pending a case for legal separation, one of the spouses dies, the action is automatically extinguished and there will be no LS.

Whatare the prerequisitesto havethe SS inherit only 1/3? 

1. SS inherits alone



2. The marriage was in articulo mortis



3. Decedent dies within 3 months of the marriage



4. Couple did not live together for at least 5 years



5. The decedent was the one at the point of death upon marriage

IllegitimateChildrenor descendants o

No more distinction between natural and spurious children.

o

o

Always get ½ of one LC’s share



1. testamentary (institution of heir) disposition



Their share can be reduced pro rata if the shares exceed 1 whole. They are less preferred than SS and LC.



2. legacy or devise



3. intestate succession



4. donation inter vivos

Whatif they do not concurwith legitimatechildren?

•

Variable shares. If with SS, then 1/3. If with IP, then ¼. Alone, ½ collectively. If with LP and SS, then ¼.

Whatis the rule on representation? 

•

When he gets nothing in the way of:





o

o

Whatif they concurwith legitimatechildren?

 •

The illegitimate children of an illegitimate child can represent the latter. The illegitimate children of a legitimate child cannot represent the latter.

IllegitimateParents o

Excluded by BOTH legitimate and illegitimate children.

o

No succession for illegitimate ascendants beyond IPs

Don’t forget donation inter vivos!

…and he was not disinherited.

Whydoesit mention“compulsoryheirs in the directline”? Whois a compulsory heir not in the direct line? o

The surviving spouse.

o

So whois covered? 

o

It can be LC, IC, and as circumstances apply, LP or IP

Howdo you determinewhoare the compulsoryheirs?

Preterition (854)  •

Whatis preterition? o

Total omission of a compulsory heir in the direct line from the inheritance.

•

Whatif thereis somethingis givenbut is insufficient? o

o

Whatis the mistakeof the judgein Seangio? 

•

He said that it is total omission from the will. It must be total omission from the inheritance.

Whenis a compulsoryheir completelyomitted?

•

Determine only at the time of death because that is only when the rights to succession vest.

Remedy is completion of legitime (906)

Whatis the effect of preterition? o

Annulment of the institution of heir. But legacies and devises are valid in so far as they are not inofficious.

o

•

Doesthe fact that an heir is not mentionedin the will meanthat he is preterited? o

•

•

o

There was no preterition. So X will get his legitime because the disinheritance is ineffective. The dispositions in favor of Ateneo and Z are valid but inofficious, so these will just be reduced but not rendered invalid. [Takenoteof this scenario]

o

Whydoesit becomelike this? Because preterition will only apply when there is inadvertent omission from the will (“without the heir being expressly disinherited”). An ineffective disinheritance, thus only results into the heir being able to demand his rightful share. Preterition does not vest.

Not always! [ex. there was no disposition in his favor]

No. A predeceased. You only determine fact of preterition upon death of testator. (JLT Agro)

Disinheritance (915-923) •

[Samefacts] A, however,had a son A1. A predeceasedX still. Is there preterition? o

Yes. But not of A, but of A1.

o

Doesit matterthanA1 wasbornafter the will wasmade? 

o

It does not matter. The reckoning point is still time of death of the testator, not time of making the will.

•

Whatis the effect of disinheritance? o

Primary effect – exclusion from the legitime

o

Actual effect – TOTAL exclusion of the heir from all manner of succession: exclusion of the heir from the legitime and the intestate portion, if any, and also from testamentary succession is instituted in an earlier will.

Requisites? o

Whatis the effect? 

•

[Samefacts] But the secondsentencenowsays, in addition,“…soI give ½ of my estateto Ateneo,and the other 1/2 to my brotherZ.” Whathappenshere?

No.

X has two children,A and B. X madea will givingB ½ of his estate, and the other half to Ateneo. X did not give A anythingby wayof donationinter vivoseither. But A predeceasedX. Is there preterition? o

No. It is not one of the grounds. It is rendered ineffective, and therefore, there is no preterition.

No, if the will does not dispose of the entire estate. (Seangio)

Doesthe fact that an heir is mentionedin the will meanhe is not preterited? o

•

•

If someonedies intestate,can therebe preterition? o

•

o

If there are no legacies or devises, the entire estate is thrown open to intestacy.



The entire estate is thrown open to intestacy because there are no legacies or devises.

X said “I will disinheritmy son B becausehe tookup law, not medicine.” Is this a valid disinheritance?

1. Made in a will Canyou disinheritin a mediumotherthan a will? •

No. ONLY through a will.

o

2. Done for a cause specified by law.

o

3. Specify the cause

o

4. Must be unconditional

o

5. Must be total

o

6. Cause must true

o

7. If the truth of the cause is challenged, the truth of the cause must be proved by the proponent

•



Whatis the policyof the law? •

•

•

It is reluctant to grant disinheritance. This is why the burden of proof is automatically with the proponent of the will. The rebutting heir is not tasked to prove the denial.

Howcan disinheritancebe lifted? o

Reconciliation between the parties.

o

It may be oral, in writing, or by conduct (implied).

Whatis the effect of reconciliation? o

It removes the disinheritance.

o

Doeshe recoverlegitime?

o

1. Some of the requisites require conviction by final judgment. 



o

But some do not need final conviction, like – Maltreatment by word or deed

•

Living a dishonorable life

o

2. The grounds are exclusive.

o

Self-study the grounds – RFB

Is thererepresentationin disinheritance?

Definitely. The heir recovers his right to the legitime.

Doeshe receiveanythingby intestatesuccession? 

Example: Number 1. Mere attempt to take the life is not enough; there must be conviction.

•

N.B. representation does not apply to testamentary succession (obviously).



Takenoteof the following: o

•

o

He recovers the right to the intestate portion, if there is any left.

Doesit revivetestamentarydispositionsin a prior will? 

Yes, unless it was revoked.

Unworthiness (1032-1040) •

1032 enumerates causes for incapacity to succeed/unworthiness and there is a close parallel with disinheritance. As with disinheritance, there is need for final conviction for some, not for others, and one requires exoneration.

•

First ground (actually three):

o

Yes, if the disinherited heir is a descendant.

o

1. Abandonment of child

o

No, if the disinherited heir is an ascendant.

o

2. Inducement by parent for daughters to live a corrupt or immoral life

o •

This articlerefersto unworthinessof compulsoryheirs. Parentswhohave abandonedtheir children. But whatif the child is underthe authorityof grandparents,will this apply? o

•

RFB thinks so. It should probably be “ascendants who abandon descendants.”

o

When the parent/ascendant culpably neglects the support of the child. “Culpably” means without justification.

•

No. It is not a culpable act. It is encouraged by law.

o

This should include grandparents

o

Doesthis needconviction? 

o

•

Yes, in the same way as disinheritance. But again, it has to be a descendant.

Howdoesone set asideunworthiness? o

1. Written condonation

o

2. Execution by offended party of a will with knowledge of the cause of unworthiness

A liberal interpretation would include all these.

Attemptagainstvirtue?

Total, like in disinheritance – no compulsory, testamentary, intestate

Is thererepresentationhere? o

•

No. The law itself excludes the heir.

Whatis the extentof the disqualification? o

Re: inducement. Whataboutgrandchildren/granddaughters? Whatabout grandsons? o

•

o •

Yup.

Do you needactualdisinheritance?

Whataboutgivingconsentto adoption,is it abandonment? 

•

•

Abandonmenthas no precisemeaning. Howdo we understandit here? o

•

o

3. Attempt against virtue of daughter

Whyis the codestricterin unworthinessthan disinheritance? o

This is an inconsistency, because there are many grounds common between both unworthiness and disinheritance. This happens when if the offended party avails himself of that ground and actually disinherits.

o

Ex. X is the son of Y. X attempts to take Y’s life. A case for frustrated parricide was filed, and he was convicted with final judgment. It is a common ground in unworthiness and disinheritance. So in this case, he is automatically unworthy. But Y still disinherits X, which he can do. There is no problem here; he is just “double dead.” But what if X and Y reconcile? Y admitted X back into his house, and forgave him orally. Under the rules on disinheritance, reconciliation is enough to

No.

Whatdoes“attempt”cover? 

All stages of commission.



Also not limited to rape: it should cover other offenses against chastity.

Are the groundsexclusive?

set aside the disinheritance. But because there is no written pardon, the unworthiness persists. o

revoking one Falsification or forgery of will

Howdo we resolvethis? 



D of child/des Attempt against life Accusation of crime Adultery/conc. Force to change will Refuse to support Maltreatment by word/deed Dishonorable life Crime with civil interdiction

Commentators like Tolentino say that it is the rules on disinheritance that prevail, because disinheritance is the express will of the aggrieved party. It should prevail over unworthiness.

Representation •

If the facts are the same but Y did not disinherit X, unworthiness will apply. So there has to be a written pardon. D of parent/as Attempt against life Accusation of crime Adultery/conc. Force to change will Refuse to support

D of spouse Attempt against life Accusation of crime Force to change will Refuse to support

Unworthiness Attempt against life Accusation of crime Adultery/conc. Force to change will

Abandoned, induced to corrupt life, attempt v. virtue Loss of P.A.

o

Article 970.

o

Commenton “fictionof law”? 

o

•

•

Prevent from making will or

It’s a misnomer. Because what he gets in succession belongs to him! He is actually subrogated.

Whendoesrepresentationapply? o

ONLY Predecease, Disinheritance, Unworthiness/incapacity

o

There is no representation in renunciation

In what kindsof successiondoesrepresentationoperate? o

1. Compulsory

o

2. Intestate

In what lines doesrepresentationobtain? o

Cause for LS

This is unnecessary. It is a right created by law, after all.

Commenton the term“representation”? 

• Abandoned, induced to corrupt life, attempt v. virtue Loss of P.A. Attempt by one parent against life of other

Definitionof representation?

N.B. In both compulsory and intestate succession there is a direct line and a collateral line. The direct line you have the ascending and descending. Collateral are not ascendants or descendants, but are related to you up to the 5th degree.

o

•

Whatis the rule on adoptedchildren? o

•

•

o

Representation– operates ONLY in the descending direct line. NEVER in ascending.

Cannot represent nor be represented, because the legal relationship in adoption is strictly between adopter and adopted.

IMPT. Howdoesthe rule changefor the sole caseof representationin the collateralline? 

A, B, and C are brothers and sisters of X. If A and B predecease X, then the children of A and B inherit per representation.



But if ALL of A, B, and C predecease – the nieces and nephews of X will inherit per capita. NOTE that this is different because in the descending line, it will be still succession by representation.

Whatis the rule on representationby illegitimatechildren? o

This is the “iron curtain” provision.

o

An illegitimate child of a legitimate child cannot represent the latter.

o

An illegitimate child of an illegitimate child can represent the latter.

o

If the child is legitimate, he can obviously represent either illegitimate or legitimate parent.

o



o

o

o

Since they are only stepping into the shoes of the person represented, they could get unequal shares. Ex. A had 2 children, B had 3. Both A and B predecease their father, X. The 2 children of A split A’s share by ½ each and the 3 children of B split B’s share by 1/3 each.

•

N.B. Take note that the rule changes when ALL, not just some, of the children renounce. The grandchildren will inherit per capita. Whatif all childrenpredecease? 

The grandchildren still inherit by representation, and not per capita.

•

It’s not. You cannot disinherit a brother or sister because he’s not a compulsory heir.

Whatif thereis renunciationby all collateralheirs? 

Whatis the rule on sharesof the succeedingrepresentatives? o

Is it evenrelevantto talk aboutdisinheritanceor unworthinessfor collateralheirs?

Same rule as direct line heirs: the nephews and nieces will inherit per capita.

Whatare the 3 rules on qualification? o

1. Representative must be qualified to succeed the decedent (e.g. C must be qualified to represent A)

o

2. Representative need not be qualified to succeed the person represented (e.g. C need not be qualified to succeed B)

o

3. The person represented need not be qualified to succeed the representative (e.g. B need not be qualified to succeed C)

What is the difference between representation OF and BY a renouncer? o

Representation OF renouncer  does not happen

o

Representation BY renouncer  can happen.



•

o

Illustratethis rule. ABC. C renounced B’s inheritance. But C can represent B if B predeceases A, because C is inheriting from A, not B.

o

•

•

What’sthe purposeof reservetroncal? o

•

See Article 891

To keep property or return property to the line of origin. (Sanchez Roman view)

1. Person acquires property from ascendant or brother/sister through gratuitous title

o

2. Dies without legitimate issue

o

3. Inherited by another ascendant through operation of law

o

4. There are relatives within the 3rd degree of consanguinity belonging to the line from where the property came

•

o

There is no RT. There have to be two transmissions for there to be RT.

o

Solivio: there was just one transmission from the mother to the son, by donation. When the son died, he had no ascendants at all or descendants either. Because there was no other ascendant, the second transmission could not happen. The closest relatives are two aunts, who are not ascendants.

Whoare the partiesin RT? o

•

ONLY compulsory or intestate succession

Whatif thereis only onetransmission?

Whatare the requisitesof RT? o

This can include donation or any kind of succession

2. By operation of law, from the prepositus to the reservista 

Whatis ReservaTroncal? o

1. By gratuitous title, from the origin to the prepositus 

Reserva troncal •

Whatare the two transmissionsthat haveto take place?

But first, two basic rules: 

1. All of these parties must be legitimate. If any of the relationships is illegitimate, there can be no RT.



2. No further inquiry beyond the origin is required

Whyis the reservetroncalincludedin compulsorysuccession? o o

The RT can limit the operation of the legitime

o

If that part which is reservable passes as legitime, the law says that it should pass with no burden. But if it passes as RT, it will be under the burden of RT because the law says so.

o

It’s better to take it up as part of compulsory succession because it can become an encumbrance on the legitime.

1. The origin – 

Ascendant of prepositus, of any degree, of either line



Or brother/sister of prepositus, either full or half blood •

If full blood, Manresa says “yes.” JBL says “no, because there is no possibility of the

property leaving the line. The ascendant lines are common.”1 o

2. Prepositus

o

3. Reservista 

Has to be a different ascendant from the origin



Musthe be anotherascendantfromanotherline or can it be sameline? •



o

1

•

Parent, grandparent, great grandparent

•

Brother, sister, nephew, nieces, uncles, aunts



Note: in the situation that JBL seeks to exclude (but Manresa favors), there is no need to make a distinction since there is no change in lines.



Whendo you determinewhothe reservatarios?

If another line, no question he can be a •

reservista. (Ex. F  S  M)

•

Whoare thesepossiblereservatarios?

If same line (Ex. GF  grandson  F [same line as grandfather, since he is the son of the grandfather]), according to JBL, there is no RT. According to Manresa and SanchezRoman, there is an RT.2



If thereare several, but of differentdegrees,howdo you determinewhogets what? •

Tolentino: Selection is made on preferential basis, not integral and indiscriminate, as Scaevola believed.

•

Apply the rules on intestate succession (direct over collateral). Another rule of intestacy that applies is representation of nephews or nieces of brothers/sisters [so the brothers/sisters do not exclude nieces/nephews].

4. Reservatarios 

They must be related within the third degree, in relation to the prepositus



Of course exclude legitimate descendants, since if the prepositus had decendants, there would have been no RT

The difference is explained by different theories. JBL’s view is that RT is curative or remedial; if it does not leave the line, no need for RT. Manresa says that it is preventive, too – the RT seeks to prevent the property from leaving the line as well. 2 Again, the source of disagreement is a different in theories on nature and purpose of RT. RFB leans towards Manresa’s and Sanchez Roman’s view.



Whatis the consequence? •



When the reservista dies. They do not have to exist when the prepositus dies.

Gonzales: The reservista cannot choose, by will who the reservatarios will be. The law chooses for her.

Shouldthe reservatariobe relatedto the origin?

•

•

•



•

A1 and A2 have a child, B1. B1 is married to B2, and have a child C. A1 donates property to C. B1 died, when C dies, it goes to B2. Thus, there is an RT here. When B2 dies, A2 survives and claims the property as reservataria (since she is related by 2nd degree to C, the prepositus). MANRESA – she is a reservataria, she meets the purpose and requirements SANCHEZ ROMAN – she is not, because you didn’t return it to A1’s line and A1’s relatives. A2 is not related .

The reservatarios must be related by blood to the origin.

•

This is not yet established by jurisprudence, but this is a good view point.

2. Subject to a suspensive condition, that there will be reservatarios present upon the reservista’s death

o

3. The right is alienable, subject to the same suspensive condition

o

4. The right of expectancy is registrable

o

Don’t thesetwo rightsof registrationconflict with eachother? 

•

So what is the majorityview? •

o

Whatkindof propertycan be reserved? o

•

No. There’s only one title. The right of the reservista is annotated as ownership; the right of the reservatario is annotated as an encumbrance.

Any type

Whatare the rightsand obligationsof the reservatariosand reservistas? o

Reservista prepares inventory

o

Right of reservatarios to annotate in case the reservista alienates (within 90 days from acceptance by the reservista)

o

Appraise the movables

o

Secure by means of mortgage

o

Registration is demandable Sumaya

Whatis the natureof the right of the reservista?(Edroso) o

1. Right of ownership

o

2. Subject to the resolutory condition that there will be reservatarios present upon the reservista’s death

o

3. The right is alienable, subject to the same resolutory condition

•

Whatare the causesfor extinguishmentof RT? o

1. Death of reservista (causes it to transfer)

o

2. Death of all the reservatarios

o

3. Renunciation by all the reservatarios, and none is born subsequently

4. The right of ownership is registrable •

Whatis the right of the reservatarios?(Sienes) o

1. Right of expectancy

o

4. Total fortuitous loss of the property

o

5. Merger or confusion of rights

o

6. Prescription or adverse possession

•



TESTAMENTARY SUCCESSION

•

Testamentary succession can never impair the legitime

•

Whatis a will? o

An act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate to take effect after his death

o

Whyis this inaccurate?

Whatare the threecommonrequisites(first two, textual;one is non-textual)? o

1. It must be in writing (textual requirement)

o

2. Executed in a language or dialect understood by the testator(textual requirement) 





Definitely.

So can the will be translatedto the testator?

Natural person (juridical person cannot make a will)

Whoare the two classesof disqualifiedpersons? •

Those below 18 years old

•

Those of unsound mind



Putting it positively, one must be a natural person 18 years old or above and of sound mind.



Whatmustyou knowto establisha soundmind?

Is this rule mandatory? •

Whocan makea will? •

“Act” is too broad. Instrument is a better word.

Holographic and attested/notarial

No. It can be shown by extraneous evidence/evidence aliunde.

3. Testamentary capacity

Whatare the two kindsof wills? o

•

o



 •

Mustthe will stateit waswrittenin a languageknownto the testator? •

In general

No. It must be written in a language known to him. Do not confuse this with the attestation clause, which can be translated.



•

1. Character of estate

•

2. Proper objects of your body

•

3. Nature of the testamentary act

Is therea presumption? •

Yes, a rebuttable presumption of testamentary capacity

•

Whenis there no presumption? o

o

•

1. If the testator, 1 month or less before the making of the will, was publicly known to be of unsound mind 2. When the testator has been placed under guardianship for insanity

Thereare two waysof interpretingthe word“theend,”wherethe testator’s signatureshouldbe. Whatare these? o

1. The physical end, where the writing stops

o

2. The logical end, if there are non-dispositive portions written in the will

Mustthe signingalwaysbe at the left margin? o

No. It can be any margin.

o

Whyis thereno requirementfor marginalsigningon the last page?

There is a presumption of insanity, not just a presumption of sanity. Again, this is rebuttable

•

A requirement is that the testator must sign the will and every page at the left hand margin, except the last.

•

Howcan the testatorusuallysign?

•

•

Whatis the presumptionthen? o

o

•



•

The testatormustsignin the presenceof the witnesses. The witnessesmustalso signin the presenceof the testatorandof one another. Whatdoesthe law mean by “in the presence”? o

He writes his name

Whatare the other recognizedways? o

Affixing thumbmark (Matias v. Salud) 

Is the thumbmarkfor the testatoralwaysa valid wayto sign the will? •

o

•

o



THEEXCEPTION:If that is his usual way of signing.

Shouldthe testatorbe physicallypreventedfromsigningor haveany particularreasonto get an agent? 

Is a crossallowed(Garcia v. Lacuesta)? No, in general.

Nera: The requirement of presence does not mandate that the person must actually see the other party signing; what is required is that he could have seen, by casting his eyes in the proper direction (without changing his physical position).

Oneof the optionsgivento the testatoris that he/shemayask someoneelse to signfor him, providedsomeconditionsare present(1. Express direction; 2. In his presence).

Yes. Under all circumstances, even if not infirm or ill.



Because it would be superfluous. He also signs at the end.

o

No.

Whatshouldthe agentwrite? 

He must write the testator’s name

 o

•

Mustthe agentwrite his ownname? 

•

It must be in the agent’s own handwriting

It is not required.

Mustthe attestedwill bear a date? o

No.

o

Why? 

Mustthe attestationclausebe signed? o

Yes.

o

By whom?

o

Whocertifies? 



Shoulda holographicwill be dated?

Whataboutthe testator? o 

•

No. The attestation clause is purely an affair of the witnesses.

•

o

At the end of the attestation clause.

o

Cantheysignat the marginor elsewhere(beside)?

•

Yes.

Whatif the notarypublic actedoutsidehis notarial jurisdiction? o

Whereshouldthe witnessessignthe attestation?

 •

The notary public – as required by the notarial law.

The witnesses. •

o

The certification of the acknowledgement will be dated anyway.

It is void and tantamount to not being notarized.

If the will wasnotarizedby one of the witnesses,whowasalsoa notarypublic, will this makethe will void? o

No, if there are three other witnesses apart from the notary.

o

If thereare less thanthreewitnessesincludinghim?

No. The attestation clause is deemed unsigned.

Whatmustthe attestationclausestate?  o

1. Number of pages of the will

o

2. Fact that the testator signed the will and all the pages thereof, or caused some other person to write his name under his express direction, and in the presence of the instrumental witnesses

o

o

But can a notarypublic be a witness? 

3. That the witnesses signed the will and all the pages thereof in the presence of the testator and of one another •

The will is void. There is a failure to meet the required number of witnesses.

Definitely. But the notary public cannot be counted as a witness, and the witness cannot be the notary public too. For the latter, you are undermining the notary public’s impartiality.

Whatis the requirementif the testatoris blind?

o

Two readings – by the notary public and by one of the attesting witnesses.

o

Is this mandatory? 

Yes. Non compliance makes the will void.



Shouldthis mandatorynatureextendto illiteratedeaf mutes? •

o

o

Caneda: defect was failure to state that the witnesses signed in the presence of the testator and of one another. HELD: This was a fatal defect. Adopting JBL Reyes’s suggested standard, it could not be remedied by visually examining the will.

o

Azuela: Deficiency was failure of the clause to state the number of pages, which was left blank. HELD: valid omission, because it can be supplied by a visual examination of the will.

Yes.

Mustthe will or attestationclausementioncompliancewith this mandatoryrequirement? 

o

•

No. It can be established by extrinsic evidence.

Garcia: The lawyerwhoassistedthe testatorreadthe will. It wasread only once. The lawyer,however,readit aloudin the presenceof the attestingwitnessesand the notarypublic, whohad their owncopiesof the will. The testatorwasalso listening. Art. 808 washencenot compliedwith. But is this valid?

Requirementsof a Holographicwill? o

Completely written, dated, and signed by the testator

o

Roxas v. de Jesus: Feb/61 was held as a sufficient date – this is a problematic decision. Fortunately, there was no other will also made in Feb/61, which could have possibly repealed it. In a very liberal decision, it was upheld.

o

Whereshouldthe date be? 



o

•

This is valid, because there was substantial compliance. The intent of the law was achieved – to prevent fraud upon the testator.

In the code itself, there is no clear rule about how liberal interpretation could be.

Canyou signby a thumbmark,as in an attestedwill? 

Alvarado: Invalid because it was done by the lawyer who drafted the will who read it aloud, so it wasn’t even one of the two parties enumerated. And he read it out loud only once.

Art 809 is the provision on substantial compliance with respect to the attestation clause, which needs three things (# of pages, fact that the testator signed at the end in the presence of the witnesses, and that the witnesses did the same in the presence of the testator and of one another). Howstrict mustthis be in light of Art. 809? o

o

•

There was no mention where it should be. It could be in the body.

Seems unlikely. It must be “written by the hand” – not a thumbmark. Though there is no jurisprudence on this.

813-4 – dispositionsafter the signature o

Some commentators say that this implies that the signature must be at the bottom of the holographic will.

o

If there is only one additional disposition, it must be written and signed by the testator.

o

•



If thereare several, whatis the rule? 

1. Dated and signed

•

1. It must predate the will



2. Or each additional disposition may be signed, provided the last one is dated and signed

•

2. It must be signed on every page by the testator and witnesses, except if it is voluminous

•

3. It must be clearly referred to in the will

•

4. It must referred to in probate as that document

Kalaw v. Relova: Cancellation of the name of the original heir and writing above it of the name of another heir – invalid because it was not validated, because it was not signed. o

Requisites?

But the court weirdly held that the cancellation was valid! But it was not signed. This is an odd decision, because it had an internal contradiction.

•

Rules on probate 

•

Codicils and incorporation by reference (825 and 827)



So sinceit requireswitnesses,can younot havean incorporateddocumentwith holographicwills? •

o

Article 825 defines a codicil. This is exam material. It assumes the existence of a prior will. You cannot have a codicil without a prior will. It can explain or alter the prior will.

o

Sometimes it’s hard to determine whether it is a codicil or a second will. 

If it makes an independent disposition, it is a second will.



If it alters, modifies, changes, it is a codicil.

•

•

o

But honestly, this distinction is academic, because the requirements of a codicil and a will are just the same.

o

827 – An incorporated document. It is attached to a will and is intended to explain. It cannot make a testamentary disposition because otherwise, it has to comply with the requisites and form of a will.

Two modes of testamentary succession: o

1. Institution of an heir

o

2. Institution of devisee or legatee

Whatis the permissibleformof institutinga successor,whetherheir, devisee,or legatee? o

•

Some say you cannot because there are no witnesses. RFB says that you must interpret it liberally, and since there are no witnesses, then it just means it’s just the testator that signs.

Only thing required is that the identity of the successor is adequately determined in the will. No need to mention by name, as long as the successor’s identity is determinable.

“I institutemy brothersandsistersto ½ of the shareof my estate.” Whatdoes this mean?

o

Siblings, whether legitimate, illegitimate, or half, inherit in equal shares.

o

This is different from intestacy, where whole, half, and illegitimate siblings inherit in 2:1:0 ratio. (You cannot inherit from your illegitimate sibiling)

•

929-937 outline: o

•

•



Exception – you can give more than you own. This estate will attempt to acquire it, but if the estate fails, the monetary equivalent is given.



Exception 2 – you give less than you own.

Whatis the rule on statementof falsecauseson a will? o

In general, it is deemed not written.

o

Unless it is shown that: o

2. Legacy or devise of a thing belonging to another – under the ff rules, you can:



1. Cause must be false



2. It must be shown to be false





3. It must appear on the face of the will that the testator would not have made the institution had he known of the falsity of the cause

A) if the testator gives an order to acquire it, the estate tries. If the owner refuses to sell, the estate gives the monetary equivalent.



B) If the testator wrongfully believed he owned the thing, the disposition is void.

If heirs are givendifferentfractionseach, and the total is less thanthe free portion,whathappens?(852/3) o

The rest of the free portion goes into intestacy.

o

But whatif it is shownthat the testatorintendedto disposethe entire free portion? 

If the disposition is less than the portion, you increase proportionately. If more, you decrease proportionately.

924-959 – Legacies and devises •

1. General rule: you give away what your interest covers. No more, no less. If you own the whole thing, you give the whole thing.

Some provisions are inaccurate. It is estate that is liable for legacies and devises, not compulsory heirs as 925 says. You cannot charge the compulsory heir for the legacies and devises. Exception: indirect legacy

•



o

Exception – if subsequent to making the disposition, the testator acquires the thing gratuitously or onerously.

If he knew he did not own it, but did not order for its acquisition  there is an implied order to acquire.

3. The legacy or devise of a thing already belongs to the devisee or legatee 

If a thing given already belongs to the legatee or devisee, the disposition is void •

Subsequent alienation is not validated, unless as Manresa says, the alienation is to the testator himself



•

It is still void, because the testator was in error

•

If the testator knew it did not belong to him, and the thing was acquired onerously by the devisee/legatee, the estate pays o



o



If generic, on the debts existing when the disposition was made. Ex. X owedY 2 debtsin 1999. Y, in his will, gaveZ the debtsX owedY. X owedY 3 moredebtsin 2001. Y died. Whatdebtstransfer? •

•

Except – if acquired gratuitously, then there is nothing else to be done

If the thing was owned by the testator at the making of the will, but the legatee/devisee acquired the thing from the testator after, the disposition is void (because subsequent disposition, even to the recipient himself, renders the legacy/devise useless)

Just the 2 existing when the will was made.

Whatis the orderin 950 for reduction? o

1. Remuneratory

o

2. Preferred

o

3. Legacy for support

o

4. Education

o

5. Specific

o

6. All other, pro rata

4. Legacy/devise directing the estate to remove the encumbrance of property of another  the estate pays for it

o

the disposition. Extrajudicial demand does not revoke the disposition. It must be a complaint for collection.

If the thing belongs to somebody else when the will was made, and he erroneously believed it belong to him, and later, the legatee or devisee acquired the thing –

•

Whatis the rule in 911?



Pledge/mortgage  estate must pay for it first

o

1. Reduce pro rata non-preferred legacies and devises



Any other kind of encumbrance like easement or encumbrance  passes with the things

o

2. Reduce pro rata preferred legacies and devises

5. Legacy of credit or remission 

Whendo you use which? o

If the reason for reduction is impairment of legitimes, use Rule in 911.

o

If the reason for reduction is something else, use Rule 950.

o

Whatotherreasonscouldexist?

i.e. giving to the recipient the debt owed to me by another person  effective as to remaining debt owed upon the testator when he dies



•

If the testator sues after making the disposition  ipso facto the legacy is revoked. Mere filing revokes

•



A testator has no compulsory heirs, but he gave away too many legacies and devises, by sheer mathematical necessity. Rule 950 is followed.



Or maybe the testator already covered for the compulsory heirs’ legitimes through donations inter vivos, so the remaining parts are all free portion.

Whenis a legacyor devisewithouteffect? o

1. Transformation – 

•

•

Art 1025– The heir, legatee, or devisee must be living when the testator dies. There is NO exception, contrary to what this provision suggests. o

Representation is not an exception because the representative must at least be conceived already.

o

For juridical persons, it must exist juridically when the testator dies.

1027 – First 5 paragraphs are important because they enumerate instances where one is incapacitated to succeed in testamentary succession. It does not apply to other kinds of succession.

Converted the thing o

o

Just memorize this list:

2. Alienation 

o



Either onerous or gratuitous, and even if the thing reverts to the testator



Exceptions? •

1. Reversion was caused by annulment of alienation because there was vitiated consent

•

2. Reversion due to redemption in a pacto de retro sale

•

In fact, the basic rules are common to all kinds of succession (Alive + qualified to succeed at the time succession opens. There is no exception here.)

A. Will executed during last illness

•

B. Spiritual ministration extended during last illness

•

C. Will executed during or after the spiritual ministration

2. Relatives of priest/minister within 4th degree or his institution



3. Guardian, from ward before final accounts of guardianship approved

Capacityto succeed: o

•

 3. Total loss before the testator’s death

Rules common to heirs, legatees, and devisees

1. Priest who head confession of testator during last illness or minister of gospel extending spiritual aid in this period. Requisites:

• 

Except if guardian is A/D/sibling/spouse

4. Attesting witness to the execution of a will, spouse, parents, children, or anyone claiming under that witness, spouse, parent, or children

•



o

o

Put in the exception, where there are three other competent witnesses to the will, under here too

 o

5. Physician or health officer who took care of the testator during last illness

1028 – only applies to testamentary succession: extend to prohibited donations in 739

•

1032 disqualifications – these are general; these bar the DQ heir from compulsory, testamentary, or intestate succession

o

Substitutions •

857-870 – Substitutions. You cannot have substitution in compulsory and intestate succession.

•

Whatare the two kindsof substitutions? 1. Vulgar

o

2. Fideicomissary

o

The code seems to enumerate two more: 

1. Reciprocal



2. Compendious •

•

Yes. Just specify.

What are the requisites for fideicomissary? o

1. First heir takes the inheritance

o

2. Second heir takes the thing after tenure of the first heir

o

3. The second heir must be one degree from the first heir 

Whatdoes“first degree”mean? •

o



Enumerate all the three causes

Canyou restrict vulgarto 1 or 2 grounds? 

•

Predecease, incapacity, renouncement

Howdo you makeit? 

Take note especially for the priest and the doctor.

•

Instituting an heir in default of the one instituted

(Several heirs one substitute)

…but these actually are just variations. They go into mode.

Whatis substitutionvulgar?

•

•

It refers to relationship.

o

4. The first heir must have absolute obligation to preserve and transmit

o

5. Both heirs are alive and capacitated at the death of the testator

Whatis the tenureof the first heir? o

What is specified by the testator

o

If not specified, it is the lifetime of the testator

Doesthe first heir havea right to alienate? o

NO. This rule is unlike the reserve troncal.

o

Conditions, terms, modes •

•

•

These all burdens in succession, especially since the testator has free disposal of his property.

•

o

Suspensive

o

Resolutory

Whathappenswhile waitingfor the suspensiveconditionto happen? o

Whatare the typesof conditions?

•

Place the property under administration of executor/administrator

Whatis the differencebetweena termand condition? o

A term is certain, a condition is not.

Whatare the specialrules on suspensiveconditions? o

o

•

o

o

Suspensive term

Whataboutconditionnot to contractfirst marriage?

o

Resolutory term

o

ALWAYS considered not written

•

Whendoesan institutionbasedon a termvest? o

Whataboutsubsequentmarriages? 

o

Whatare the two typesof terms?

An impossible condition (873) – considered not imposed. The disposition is valid and becomes pure.



Generally void, unless imposed by the deceased spouse or the latter’s ascendants/descendants

BUT what is allowed is to impose a usufruct or some personal prestation as long as one remains unmarried or a widow is valid.

A disposition with a term vests upon the death of the testator, unlike a conditional disposition (esp. suspensive) which only vests upon the happening of the condition. Since a term is certain to happen, it follows the general rule in 777 that it vests upon death. 

So mustthe heir be alive whenthe termarrives?

A dispositionon conditionthat the heir/legatee/deviseemustalso in turn makea dispositionin favor of the testatoror anotherperson? 

The entire disposition is void. Take note of this. The purpose is to prevent the whole system from being corrupt.

•

Whendoesa suspensiveconditiontake effect? •

•

No. Just when the testator dies.

•

So he can transfer his vested right upon his own successors.

Whatdo youdo as youwait for a suspensivetermto arrive? o

•

If both conditions exist: 1) the heir is alive when the testator dies, 2) the heir is alive when the condition happens

Governed by 885. While you wait for the term to arrive, you give it to the legal heirs (intestate heirs).

For resolutoryterms?

o

o

After the testator’s death, you give it to the instituted heirs, and when the term arrives, they turn it over to the legal heirs.

3. In case of a mode (882) 

•

•

A condition suspends, but not obligates. A term obligates, but does not suspend. A term does not delay the efficacy of the disposition, but it places an obligation upon the instituted heir (even suspensive, since the instituted heirs have an obligation to turn the property over to the instituted heir when the term arrives). Whatis a mode? o

•

•

•

To whichkindsof successiondoesit apply? o

You have to do something alongside the disposition.

The beneficiary can ask for the performance of the obligation.

o

The legal heirs can ask for the forfeiture of the disposition.

Applies only to testamentary and intestate succession.

Requisites? o

Whatif the heir fails or refusesto performthe act required?

1. Two or more heirs, legatees, devisees, called to the same inheritance or portion thereof pro indiviso 

Whatdoes“proindiviso”here mean? •

Some commentators say they must have equal shares (like Tolentino), but this is wrong. There’s no requirement of equality, just as long as they have aliquot shares. This means even the shares can be unequal.

•

There is no accretion is the shares are earmarked.

Howmusta modebe stated? o

•

Accretion (1015-23)

•

o

As security for compliance with the testator’s wishes

It must be a clear command, not just a request.

Whenis a caucionmuciananeeded? o

1. In a potestative suspensive condition (879) o 

o

It is under the sole control of the heir (ex. I give X my house and lot, as long as he doesn’t use it as a drug den. In order to guarantee that the legal heirs, who will then be entitled to the property upon violation of the condition, then X has to put up a bond – the caucion muciana).

2. Resolutory term, before the term arrives 

The legal heirs have the right to enjoin disposition of the property, but they have to put up a caucion muciana

•

X giveshis BPI accountto A, Citibankaccountto B, PNBto C. C predeceases. Is thereaccretion? o

•

2. One or more must predecease the testator, become incapacitated, or renounce the inheritance.

No. The shares are earmarked.

X gives½ of his estateto A, 1/3 to B, 1/6 to C. C predeceases. Is thereaccretion? o

Yes, because they got aliquot shares. A and B receive C’s shares according to the proportion they received their shares.

•

In testamentarydisposition,whatwinsout, accretionor substitution? o

•

Representation, when proper

Revocation of wills (828-834) •

There is no such thing as an irrevocable will. It only becomes irrevocable when the testator dies.

•

Whatare the threewaysof revokinga will, whethertotal or partial? o

o

Either by the testator personally or in the case of attested wills, it can be done by his agent acting under his express direction and in his presence



Molo: There must be both a) corpus (actual destruction), and b) animus (intent)

Substitution

In intestatedisposition,whatwinsout, accretionor representation? o



1. By operation of law 

Legal separation (offending party is instituted as a beneficiary in a will)



Preterition



Where the testator disposes property that is given as legacy or devise in a will (the legacy/devise is revoked)

•

1. The will must comply with the requirements of wills



2. Testamentary capacity



3. Either an express revocatory clause or incompatibility in the dispositions



4. The will must be admitted to probate

o

If it is an attested will, it can be proved, if there are people available who can attest to the contents of the will

o

If it is a holographic will, too bad if no copies survive. There’s no way of probating it.

Republication and revival •

835 and 836 are inconsistent with each other.

•

Republication/revival is giving efficacy to a will which somehow lost its efficacy? o

•

2. Subsequent will/codicil 

Whatif the revocationwasunauthorized?

•

Ex. it has been revoked, and now you want to revive it.

If it is defectiveas to form? o

You have to reproduce it in the form of a valid will or codicil.

o

You cannot revive it by reference.

Whatif it is inoperativeby someotherreasonother thanform? o

You can merely revive it by reference.

Executors and administrators (1058-1060) • o

3. Physical destruction

Whatif the decedentdies with a will? Withno will?

o

It has to be probated, and if the will has appointed someone to take care of the estate, then he becomes the executor.

o

If there is none appointed or no will, then the court appoints an administrator.

o •

Even if the decision is wrong.

Whatcannotbe assailedafter finalityof probatedecree? o

1. Testamentary capacity

Probate

o

2. That he acted freely

•

o

3. Followed all the requirements of the will, as to witnesses, etc.

o

4. It is genuine and not forged

Twoaspectsof validityof a will? o

Formal (Extrinsic validity) 

o

including capacity of witnesses

•

For probateof holographicwills, whatmustone remember?

Substantive (intrinsic validity) o 

•

Ex. impairment of legitimes, preterition, capacity of heirs, legality or possibility of conditions

1. You have to present the will itself (Gan v. Yap) 

Except there is a photocopy that survives (Rodella v. Aranza)

Whatis probate? o o

Mandatory proceeding to determine only the formal validity of the will

o

There is no substitute for probate.

o

Guevarra v. Guevarra, Seangio v. Reyes, Heirs of Lasam: All lay down the rule that probate is mandatory.

•

Probate is determinative or conclusive of the validity and due execution of the will.

•

Howdoesit becomefinal? o

Just like any decision of court.

o

Once it becomes final, it becomes res judicata – it becomes unassailable as to matters of form of the will.

2. If the holographic will is contested as probate, three witnesses who can identify the will and attest to its validity must be presented. 



Is this mandatory? •

The leading case of Azaola says that it is only directory

•

Godoy: Says that it is mandatory, although it is criticized

Whenis it deemedcontested? •

If it is challenged as a forgery. If it is admitted as genuine but admitted on other grounds such as mistake, fraud, or duress, it is not a contest under 811 and you do not need three witnesses.

Conflicts rules

o

Jus familiae (ascendant/descendant)

•

o

Jus sanguinis (collaterals up to fifth degree)

•

Substantivevalidity? o

Time – law as of time of death

o

Jus xxx (husband and wife)

o

Place – law of citizenship of decedent

o

Jus imperii (decedent and State)

Formalvalidity?

•

Just familiaeandsanguinisrequiresbloodrelationship. Whatis the exception? o

o

There are always five choices:

o

1. Law of citizenship

o

2. Philippine law

o

Going down, there is no limit

o

3. Law of residence

o

Going up, there is no limit

o

4. Law of place of execution

o

Collateral line, the limit is up to the fifth degree

o

5. Law of domicile

•

•

Legally adopted children and legally adoptive parent

Whatare the limits?

Howdo you countdegrees?

INTESTATE SUCCESSION

o

For direct line, count degrees

In general

o

For collaterals, count up to the nearest ancestor

•

Whatis intestatesuccession? o

Takes place by operation of law in default of a valid will

•

Look at the instances in 960 where total or partial intestacy occur.

•

Whatare the principlesof intestacy? o

•

Exclusion and concurrence, just like compulsory succession

Whatis the rule of relationship? o

The intestate heir must be related to the decedent

•



2nd – brothers, sisters



3rd – nephews, nieces, uncles, aunts



And so on

Rule of preferenceof lines? o

Direct excludes collaterals

o

As a general rule, descending excludes ascending 

Except: legitimate ascendants not excluded by illegitimate descendants

o

Is thererepresentationin the direct line? 

Yes, only in the descending

o

Collateral – nearer excludes more remote

o

Is thererepresentationif the collateralline? 

Nephews and nieces exclude predeceased or unworthy brothers/sisters of decedent



•

Concurs with both direct and collateral (up to third degree)

Nearer exclude the more remote

o

Whatis the exception? 

•

•

o

•

Exceptions? 



o

If you observe the 2:1 ratio intestacy, remember that you still have the legitimes. You might end up impairing the legitime of the legitimate children, which cannot be impaired. The illegitimate children can suffer impairment if there are a lot of them, but never the legitimate children.

o

This problem doesn’t apply in any other instance apart from these two cases.

Whatis the successionalbar? o

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

o

Manuel v. Ferrer: Article 1006 [?] applies as an exception if both are … [something like if both are illegitimate. I spaced out]

1. Preference of lines •

ex. legitimate direct descendant of 1 degree excludes legitimate direct ascendant of 1 degree

2. In collateral relationships, full blood and half-blood distinction

•

This is the same problem as in compulsory succession so see the discussion above.

Combinations2 and 4 in the bookare dangerous,so take note that here (children and illegitimatechildren)– eachlegitimatechild gets doublewhat the illegitimate childrenwill get. Whatis the usual pitfall?

Representation (see above – direct descending and nephews/nieces only for collateral)

Relatives of equal degree inherit equally

3. Representation

Canthe adoptedsucceedto his biologicalparents?

Whatis rule of equalityof relativesof the samedegree? o

Nephews and nieces

•

Whatis the rule of proximityof degree? o

•

See the combinations in the book.

Whatis the natureof the spouse? o

Siblings

•

o •

•

Situationsto take note of:

o

In case of the concurrence of the SS and 1 LC, the SS will get ½, and the LC gets ½.

o

SS, brothers, sisters, nephews, nieces – SS gets ½, brothers sisters nephews nieces get ½.



½ to legitimate children, 1/8 to Ateneo, 3/8 to spouse



Note: the entire remaining free portion of 1/8 went to the SS.

Acceptance and repudiation of the inheritance (1041-57)  o

•

o

•

Acceptance and repudiation are always free acts. A person may always accept or reject, whether compulsory, testatamentary, intestate.

•

Exception: accion pauliana o

TESTACY: Difference in the rule of brothers and sisters – if they are instituted indiscriminately, they receive equal shares whether full or half blood.

•

o

INTESTACY: Take note of the 2:1 ratio [for full and half blood] and the successional bar.

Laxer rules in acceptance, and stricter rules in renouncement, because it is prejudicial 

Yes, there is a will but it doesn’t dispose of the entire free portion.

Givean exampleof the differencebetweentotal and partial intestacy. o

If there are creditors and the decedent does not have enough property to pay the creditors, the creditors can compel the heir to accept to the extent of the credit

Whatis the differencein form?

Is partial intestacypossible? o

•

Nephews and nieces concurring with aunts/uncles of the decedent – nephews and nieces exclude the aunts/uncles even if they are in the same degree.

Whatis the differencein rulesfor brothers/sistersin testateandintestate succession? o

•

According to the rules of division.

There is need for judicial approval for renouncement of incapacitated person. For acceptance, no need.

o

Acceptance – there can be express acceptance in writing, oral, or there can be tacit acceptance (by doing nothing).

o

Renouncement – you have to do it in writing or by judicial approval.

Full intestacy: Partition

o



Legitimes – ½ to LC, ¼ to SS



Thus, ½ to LC, ½ to SS (entire ¼ free portion went to the SS)

Partial intestacy:Ex. I gave1/8 of my estateto Ateneo. Notethat the legitimesare ½ to LC, ¼ to SS.

•

Whatis the effect upondeathof the decedent? o

The immediate effect of death is the vesting of successional rights. But at this point, nobody knows what part of the estate goes to whom.

o

The heirs co-own the mass of properties.

•

o

Youhaveto collate: o

 o

If he died with a will andthe free portioncannotaccommodateall the dispositions?

What results are his gross assets o

Reduce testamentary dispositions

o

First to be reduced are the non preferred testamentary dispositions

2. Deduct debts 

 o

•

1. Inventory

No. Collating means a purely mathematical computation.

This is where the Santibanez and Hemady doctrines come in. The estate, after all pays money debts, prior to the heirs receiving their shares.

•

What results: available assets

After reducingthemto zero, whatif the legitimesare still impaired? o

Reduce the donations to strangers or donations to compulsory heirs considered strangers

o

Howdo you reduce?

3. Add the value of donations inter vivos 

Net hereditary estate results.



Whatif the recipientsof the donationsare the compulsory heirs?



• •



Whatif the recipientsof the donationsare strangers? •



The excess is taken out of the free portion

Whatif the free portioncan accommodateall those donations? •

•

You impute it against the free portion.

Whatif the donationto the compulsoryheir exceedshis legitime? •



You impute against their legitimes what they have received as donations inter vivos.

You take it all out from there

Doescollationmeanyou haveto physicallyobtainthe assets?

NOT pro rata but in reverse order. The latest donation gets reduced first.

Afterwards, the heirs can agree on a partition or go to settlement proceedings. Partition here is the physical division of the estate.

good – the creditor can pursue the property of the debtor to exact fulfillment of the obligation OBLIGATIONSANDCONTRACTS o Trends in Obligations and Contracts: •

1. Obligations have been progressively spiritualized o

•

There is very little requirement as to form. Upon meeting of the minds, in general, there is a K.

2. The principle of autonomy of will, which is still the general rule in K law, has been restricted.



1. The Family Home



2. What you receive from support



Etc.

4. Weakening of the principle that liability results from responsibility

o

There are prohibited obligations from being entered into

o

o

In general, under the law, you are only liable if you are responsible. Ex. if you are guilty of driving recklessly.

Art. 1306 – Contracting parties may establish clauses and terms as they may deem convenient

o

Ex. employer can be responsible for employee’s wages if not paid



Provided they are not contrary to law, morals, public order, good customs, or public policy



There are five categories of restrictions. They restrict freedom but promote the greater good.



Ex. labor contract with consideration less than the minimum wage.



•

•

In the Rules of Court, there is a list of properties exempt from attachment, for instance:

Ex. Those that violate environmental considerations, social justice, gender issues, etc.

3. Mitigation of the principle that the debtor must answer with all his property o

o

•

5. Unity in modern legislation o

This is especially important in global commerce

o

Ex. Bills of Lading, Trust Receipts, Intellectual Property, etc.

Essential requisites of obligations •

Whatare the requisitesof obligations? o

Four generally accepted requisites:

o

1. Active subject

Before: you enter into a K and the creditor can pursue all your properties to exact fulfillment of the obligation Now: In the interest of social justice, there are many things that the creditor cannot levy upon, although the principle is still

o



A.K.A. Creditor (to give) or obligee (to do)



Has right to demand that the obligation be performed

2. Passive subject



A.K.A. Debtor or obligor



Has to perform the obligation (reciprocal obligations) •

•

o

3. Object

o

4. Vinculum juris

Note: In a sale of a thing, both parties are debtors and creditors of each other, with correlative obligations (as to the thing; and as to the money) •

They must be determined or determinable.

Whatare the typesof determined/determinablesubjects? o

o

It’s the prestation. It consists of conduct or an activity to be performed by the debtor or obligor.

o

It’s not the physical thing to be delivered in an obligation to give. That is merely the object of the prestation.

o

Ex. Y has to deliver a car to X on Feb 15, 2011. The object of the obligation of sale is the act of delivering to X the ownership the car (tradition). The car is the object of the prestation.

o

This distinction is, not, however always observed even by the NCC.

o

Whatare the requisitesfor the prestation?

1. Obligations where subjects are completely and absolutely determined at the birth of the obligation 

o

2. One of the parties is determined, but one is determinable with a previously-established criterion 

o

Most common type

Ex. Negotiable instrument: “I promise to pay X or order the amount of P5000, on November 15, 2011.” One of the parties, i.e., me, is determined. The other is determinable, because X can negotiate it. The instrument lays down the criterion.



The subject/s may change at the thing passes from one person to another.

1. Licit •



3. Subject/s is/are determined in accordance with their relation to a thing. (Real contracts) 

Ex. X borrowed 3M from Y, and placed his house and lot as security. There is a K of loan and a K of mortgage, which is registered. X sold his house and lot to Z, who registered the property in her name. The mortgage in favor of Y is still annotated. X doesn’t pay by the due date. Y sought to foreclose the mortgage, and Z cannot deny the mortgage, because Z is the mortgagor now.

Whatis the objectof the obligation?

For boththe activeandpassivesubject, whatis required? o

•



2. Possible •



Cannot enter into contract of sale for shabu, because the object of the prestation is illicit.

Cannot deliver Mount Apo

3. Determinate or determinable

•



Cannot enter into a K with no defined prestation

 •

Whatis the sixth requisite?

4. With pecuniary value o

•

Whatis the vinculumjuris? o

•

The form. But it does not refer to a specific form, like putting it in writing. It refers to the outward or external manifestation of the obligation.

The compulsive element; the obligatory element in an obligation. It makes an obligation an obligation.

Sources of obligations

o

This is why an obligation dependent solely on one’s will is void.

•

o

Ex. X tells Y, “I will sell my car to you when I feel like it.” Here, there is no obligatory force.

Art 1157– Obligations arise from: o

1. Law

o

2. Contracts

o

3. Quasi-contracts

o

4. Crimes

o

5. Quasi-delicts

Yu v. Asuncion: Enumerated requisites of an obligation. o

1. Vinculum juris, “the efficient cause of the obligation”

o

2. The object (prestation/conduct to be observed)

o

3. Subject persons, the active and passive subject 

•

Causing an injury to the other.

Combined #s 1 and 2 into one.

•

Arts. 1158-62 regulate these five sources

•

Is this list exclusive?

Whatis the fifth element,accordingto Castan? o o

The causa. It is the “why” of the contract.

o

Ex. Why is Y bound to deliver the car to X? Because X will deliver P400000 to Y. Why is X bound to give P400000 to X? Because Y will deliver the car to X.

o

Whatis the causafor a gratuitouscontract? 

o

Liberality.

Whatis the causafor a quasi-delict?

Sagrada Orden v. NACOCO: The Japanese during the war seized the Sagrada Orden’s property during the war. Upon liberation, the US seized enemy property, which included Sagrada’s property. The US entered into a custodianship agreement with NACOCO. Sagrada Orden wanted to collect rentals from NACOCO. Issue: is there an obligation to pay rentals to Sagrada? HELD: No obligation to pay rentals. The court, to arrive at this answer, the court looked at the five sources of obligations – there was no contract, quasi-delict, no provision of law that requires payment of rental, crime, or quasi-contract. The implication the court forwarded is that this is a closed list.

•

o •



But is it, really? Or shouldit, really?

2. And according to good faith (ius gentium – bona fide).

Many commentators believe it is not exclusive. •

[ABSENTONESESSION]

•

Got into a car accidentwith a bus. Whodo you sue? Whatare your options?

Whatare the other obligations? o

Public offer is a sixth source of obligation, for instance (auslobung in the German code – or the unaccepted offer). A person who by public notice advertises an award in exchange for a particular result is bound to grant this award. 



Ex. Proctor and Gamble announces on TV: “For 30 wrappers of Tide, you get a glass imported from Switzerland. Offer good until Feb 28, 2011 only!” X saw this advertisement, and on Feb 27, 2011, presents 30 wrappers to the P&G office. Issue: is there an obligation here? Held: yes. There is a public offer here. Ex. X left his important papers inside a cab. X advertised that whoever returns his papers will get a P20000 reward. – There is a public offer here.

•

Some commentators say there are only two sources: law and contract. Some say: laws and acts of persons (whether voluntary or involuntary).

•

Whatis the natureof a contractas a sourceof obligation?

•

o

1. Bus driver

o

2. Bus company

o

3. Sue both – because they’re joint tortfeasors, and thus solidarily liable

Do you haveto provenegligencewhenyou sue underquasi-delict? o

•

Yes, you have to prove negligence of the bus driver. It is not presumed.

Do you also haveto provethe negligenceof the bus company? o

Yes, in the selection and supervision of the bus driver. (Culpa in eligiendo, culpa in vigilando)

o

This is a rebuttable/disputable presumption. 

o

What the contracting parties establish has the force of law between them, and must be complied with in GF. They are free to enter into any contract, provided the stipulations do not violate Art. 1306. In general, there is no specific form needed.

o

Howmustcompliancebe done? 

1. It must be complied with according to its terms (ius civile – pacta sunt servanda)

•

As opposed to conclusive and quasi-conclusive presumptions

In a situationwheredamageor injuryis causedto a party, and thereis a contract betweenhimandthe personwhocausedthe damage,there is no questionhe can sue undercontract. But can he also sue underquasi-delict? o

There is an old line of SC decisions in this country which says that you cannot sue under quasi-delict if there is a contract. There is some basis for this, because Art. 2176 says that the act or omission must occur “when there is no pre-existing contractual relation between the parties.”

•

•

o

There is, however, the theory of concentric circles (the smaller circle of contract is always within the bigger circle of quasidelict). So if you sue under quasi-delict, you are disregarding the contract between the parties. This is valid.

o

You can sue under quasi-delict if it is the tort breaches the contract. If an act that constitutes breach of contract would in itself constitute the source of a quasi-delictual liability had there been no contract, then there is breach of contract through tort.

o

So you can choose to sue under quasi-delict or contract.

Theoryof vicariousliability: o

If you sue under quasi-delict and you choose to sue the company and not the employee, you are really suing under Art. 2180.

o

This is actually a wrong term because vicarious means you are answering for the liability of someone else.

o

But the theory under 2180 is that the company/employer itself is negligent as well.