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SUCCESSION (BALANE) CHAMP 2004

Notes - 1 -

Introductory Lectures

Our Civil Code is divided into 4 books. Our law on
succession is part of property law as a mode of
acquiring ownership. It is an independent mode of
acquiring ownership.

History: The Civil Code follows the Gaian Order. It
basically has 3 classifications.
1) the law on persons
2) the law on things
3) the law on obligations.


Succession is derived from 2 Latin words.
Sub - meaning under
Cedere - to transfer, cede, transmit, pass, surrender

Succession [sub-cedere] [succedere] [successus]
[successio] is "to pass under.

Passing Under.
Under Roman Law, a person occupies a space (like
under a house), this is his legal personality. When he
dies, the law did not leave the space vacant.
Instead, a successor will occupy the space. A
successor, passes under that space, o fill that space
(successio). In effect, the space or personality is
always occupied.

Every person, during his lifetime stands inside a civil
personality out of which several relationships arise.
(ex. citizenship, filiation, being a lawyer, contract
between buyer and seller these are all
relationships).

When he dies, the civil personality is extinguished.
Some relationships die, some survive. Now, the law
provides for succession.

SUCCESSION IS A SET OF RULES THAT DETERMINES
A) TO WHOM
B) AT WHAT TIME
C) IN WHAT MANNER, AND
D) IN WHAT PROPORTIONS
THE RELATIONSHIPS THAT SURVIVE ARE, OR
SHOULD GO. (INTUITU PERSONAE)

The law that governs them is succession. That is all
on succession. Everything else are footnotes. But as
lawyers, you have to know the footnotes.


3 ASPECTS OF SUCCESSION IN ROMAN LAW

1. Succession fulfills longing for immortality. It
creates something that survives the person. It
satisfies yourself that something lives forever.
Some leave paintings or poems like Ovid,
Cicero, or Monet, but we are not like them.

2. Religious (pater familias) or priestly functions.
Pater familias means head of the family. In
Roman law, he is usually the one who manages
and exercises authority. He is seen as a bridge
between god and family. Hence, it is a position
that must be occupied every time. When the
pater familias dies, it was necessary to have
laws to determine who would succeed to his
priestly functions.

3. Universal succession. Now, succession is
nothing more but a mode of acquiring
ownership.

We derive succession from Roman Law, French Law
and Spanish Law.


DEFINITIONS:

Manresa
A subrogation or replacement by one person of
another
Taking position of one formerly occupied by
another.
In a juridical sense: succession is the
substitution of one person for another in a
determinable legal relationship.

Castan and Balane
Substitution by one person in the transmissible
rights of another


ELEMENTS OF SUCCESSION (MANRESA)

a) cambio de sujeto - change of subject or
persons ownership is transferred from
decedent to heir
b) identidad de objecto - identity of object or
same thing, same rights. the same
property is involved.


KINDS OF SUCCESSION

Moment of transmission
Mortis Causa Inter Vivos
- takes place upon death - takes place during the
lifetime of the parties
(now called donation,
inter vivos)
*in the Philippines, succession is strictly mortis
causa!

Extent of rights invovled
Universal Particular
- covers the entire
estate, or the fractional
part thereof
- succession to specific
items or property
Devise Legacy
Specific
real
property
Specific
personal
property






champ.reyno 2004
- 2
Cause and Importance (Rank)
1. Compulsory - that effected by operation
of law to the forced heirs
even if not in the will
2. Testamentary - by the provisions of a will
3. Intestate or Legal - in default of a will,
subordinate to testamentary
4. Mixed (not really a kind) but it
simply means a combination
of the 3 above
5. Contractual - donation propter nuptias by
one to another of future
property which takes effect
after death. (governed by the
law on contracts)
- this is now eliminated by
the FC, and donations
propter nuptias are governed
by testamentary succession


Parties to Succession

1. The one who dies - decedent (not dissident) /
transferor / causante / de cuius / auctor
auctor testator if with will, decedent if
without will

2. The one who succeeds - successor / transferee/
causa habiente
by universal title - heir
by particular title - devisee, or legatee


PRINCIPLES OF SUCCESSION

1. No succession takes place when a person is
alive. Succession has to be upon death only.
During the lifetime, the heirs merely have an
expectancy to the properties.

2. The interest of the family may override the
provisions of a will. (ex. legitimes). A will cannot
impair the legitimes.

3. The estate devolves upon the family, unless the
decedent expressly provides for otherwise in a
will.

4. The family cannot be entirely deprived of the
estate. (ex. legitimes).

5. Within a family, the heirs of equal degree or
proximity inherit in equal shares. (as a general
rule).

6. The State has a share in the inheritance. (ex.
Intestacy - state has a share)

7. The heirs are not liable to the debts of the
estate beyond their shares in the inheritance.
The estate should be liable for the debts left by
the decedent. (debts are paid before heirs get
shares).



BASIS OF THE LAW ON SUCCESSION

Some say it is the law on property because it is a
mode of acquiring ownership. Some say it is the law
on persons. Because of the family ties and legitimes.
So hows that?

Castan says the law on succession is both part of
property law and family law.


MAJOR CHANGES IN THE NEW CIVIL CODE (FROM
THE SPANISH CODE)

1. Allowance of holographic wills. This was allowed
during the Spanish times, but abrogated during
the American Regime. Now we have restored it.

2. Improvement in the succession position of the
surviving spouse. Before, the surviving spouse
had only a usufructuary right. She has no share
in ownership in case and was only a concurring
heir. Now she is given full ownership and is a
compulsory heir.

3. The abolition of mejora or betterment. (the right
of a parent to give a child more than the other).
Since Filipinos never understood this concept, it
was deleted form the NCC.

4. Increase in the free portion because of the
abolition of the mejora.

5. Abolition of the reserves (reservation) and the
reversions (return). However, the NCC restored
the reserva troncal.

6. Grant of succession rights to spurious children.
(those of parents who are disqualified from
marrying each other or incapacitated).
Previously, only legitimate children have
successional rights.

7. Greater facility in probate of wills. We now allow
ante mortem probate of wills, during the lifetime
of the testator. (Testator himself files for
probate).

8. Application of Art 739 (prohibited donations) to
the law on succession. The following are void
donations
a. those made between persons who
are guilty of adultery or
concubinage at the time of the
dontation.
b. Those made between persons
found guilty of the same criminal
offense, in consideration thereof.
c. Those made to a public officer, or
his wife, descendants or
ascendants, by reason of his office.

9. Limitation of the fidei commissary substitution to
only one degree. Previously it was two degrees.

SUCCESSION (BALANE) CHAMP 2004
Notes - 3 -
10. Intestate succession is narrowed from the sixth
degree to fifth degree. (Balane: this is still too
far!)

11. Abolition of the pupilar and ejemplar
substitution.

12. Allowance of lifetime probate.


Note: our law on succession is mostly Spanish law.
From a total of 332 articles, very few are from
American origin. Here are some areas of succession
derived from American laws:

Rules on interpretation - Art 788 - 792
Rules on formal requirements of will - Art 804-
809
Rules governing witnesses to wills - Art 820 -
824
Rules on republication and revival of wills - Arts
835-836
Rules on revocation - Art 829 -831
Rules on allowance and disallowance of wills -
Art 838-839
Rules on testamentary capacity - Art 797-802





ART 774.

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

1. a definition by Scaevola
2. succession is one of seven modes of acquiring
ownership under Article 712.
3. Relate this to Article 776.

What is the definition of inheritance?
Go to Art 776.
Inheritance includes all the property,
rights and obligations of a person which
are not extinguished by his death
(transmissible rights)


What are transmitted?
Only the transmissible rights (which includes
property) and obligations are passed by
succession.




How do we determine those that are transmissible?
Criterion
If the right or obligation is strictly personal, it
is NOT transmissible, otherwise transmissible.
TRANSMISSBLE NOT TRANSMISSIBLE
Patrimonial rights Intuitu personae


Are monetary obligations purely personal such that
they are not transmissible?
NO. They are patrimonial BUT they are NOT
passed to the heirs.
They are not intuitu personae.
Money debts, according to the rules of court
(ROC), are not transmitted to the heirs, nor
paid by them. It is the estate that pays them.
Only after the debts are paid that the residue
of the estate are distributed to the heirs.


RECAP:
The General Rule is that properties, rights and
obligations are transmitted to the heirs.
Exception: monetary debts.
This means that there are transmissible
obligations (such as obligation of a lessor to a
lessee) that are non-monetary and which are
transmissible to the heirs.


Estate of Hemady vs. Luzon Surety
In a sense, money debts are transmitted to
and paid for by the heirs. Whatever is payment is
made from the estate is ultimately a payment by the
heirs since the amount of the paid claim in fact
diminishes or reduces the shares that the heirs
would have been entitled to receive.

BALANE: In this case, it is not really a money debt
but only a contingent claim (because of the contract
of guarantee). Since a guarantee obligation is
patrimonial and not intuitu personae, it was passed
on to the heirs. In any case, a contingent claim is a
transmissible obligation.


Alvarez vs. IAC
The heirs cannot escape the legal
consequences of their fathers transaction (Sale).
The fact that the petitioners did NOT inherit the
property involved is of no moment since by legal
fiction, the monetary equivalent thereof devolved
into the mass of their fathers hereditary estate. The
estate is always liable in their totality for the
payment of the debts of the estate. But note, that
the petitioners are liable only to the extent of the
value of their inheritance.


ART 775.

Decedent = the general term applied to the
person whose property is transmitted through
succession, whether or not he left a will.

- 4
Testator = If he left a will.


ART 776.

Inheritance includes all the property, rights
and obligations of a person which are not
extinguished by his death.


ART 777.

The right to the succession are transmitted
from the moment of the death of the decedent.

Los derechos a la succession de una persona se
transmitted desde el momento de su muerte.


When does the successional right transmit or vest?
vests ONLY upon death.
The right to succession is NOT transmitted, it
is vested. To say that it vests upon death
implies that before the decedents death the
right was merely inchoate or contingent.
The vesting of the right occurs immediately
upon the decedents death, without a
moments interruption.
It is at the precise moment of death, that the
H,D, L is legally deemed to have acquired
ownership.
NOT at the time of declaration of heirs, NOT at
partition, NOT at distribution.


What is transmitted at the moment of death?
Its the inheritance. Not the rights.
Relate to Art 781


What are the consequences of this principle?
1. The law in force at the time of the decedents
death determines who the heirs should be.
[USON VS. DEL ROSARIO]
2. Ownership passes to the heir at the very
moment of death, who therefore, from that
moment acquires the right to dispose of his
share either onerously or gratuitously.
[DE BORJA]
3. The heirs have the right to be substituted for the
deceased as party in an action that survives.
[BONILLA VS. BARCENA]



Uson vs. Del Rosario
The decedents illegitimate children cannot
claim successional rights granted to illegitimate
children in the New Civil Code because the decedent
died during the effectivity of the old code.
The provision in Art 2253 providing for
retroactive effect since they were declared for the
first time in the NCC will not apply because that is so
only when the new rights do not prejudice or impair
any vested or acquired right of the same origin.
Since the rights of the legitimate children already
vested upon decedents death, the new right
recognized under the NCC in favor of illegitimate
children of the deceased cannot be asserted now, to
the impairment of the vested right of the legitimate
children.


De Borja vs. De Borja
There was no attempt to settle or distribute
the estate among the heirs before the probate of the
will. The contract was merely a conveyance of any
and all of her individual share and interest in the
estate of the decedent. As a hereditary share in the
decedents estate is transmitted or vested
immediately from the moment of death, there is no
legal bar to the successor of disposing of his
hereditary share immediately after such death, even
if the actual extent of such share is not yet
determined until after the subsequent liquidation of
the estate.
The effect of such alienation is deemed
limited to what is ultimately adjudicated to the
vendor heir. The aleatory character of the contract
does not affect the validity of the transaction.


Lee vs. RTC
An heir may sell only his interest in the
estate, or an ideal, undivided or aliquot part thereof.
He cannot yet sell specific property to the prejudice
of the other heirs.
When the estate of the deceased person is
already subject of a testate or intestate proceeding,
the administrator cannot enter into any transaction
involving it without prior approval of the probate
court.


Bonilla vs. Barcena
In an action to quiet title, while it is true
that a person who is dead cannot sue in court, yet he
can be substituted by his heirs in pursuing the case
up to its completion. When he filed the case,
decedent was still alive, hence the court had
acquired jurisdiction over his person. If thereafter he
died, the ROC prescribes a procedure whereby a
party who died during the pendency of the
proceeding can be substituted.
From the moment of death, the heirs
become the absolute owners of his property, subject
to the rights and obligations of the decedent, and
they cannot be deprived of their rights except by
those provided for by law. The moment of death is
the determining factor when the heirs acquire a
definite right to the inheritance, whether such right
be pure or contingent.
The right of the heirs to the property vests
in them EVEN before judicial declaration of their
being heirs. Hence, when Barcena died, her claim or
right over the land in litigation was not extinguished
by her death but transmitted to her heirs upon her
death. The heirs acquired interests in the litigated
property.



SUCCESSION (BALANE) CHAMP 2004
Notes - 5 -


ART 778.
ART 779.
ART 780.

Succession may be
1. testamentary
2. intestate or legal
3. mixed.

TESTAMENTARY INTESTATE /
LEGAL
MIXED
779 Lost! 780
that which
results from
the
designation of
heir (or
legatee or
devisee) HDL
= successor

- made in a
will, executed
in the form
prescribed by
law
Takes place
by operation
of law in
default of a
valid will.
That effected
partly by will
and partly by
operation of
law

Combination of
any two or all
of the other 3
kinds.

There should be a Fourth category to accommodate
the system of legitimes.

It is not under intestate succession because
intestate succession operates only in default of
a valid will. A legitime operates whether or not
there is a will and will prevail over a will.

COMPULSORY SUCCESSION
(4
TH
KIND)
Succession to legitimes
Prevails over all other
kinds



ART 781.

Should have been deleted since the definition
of inheritance was already provided in 776.
Inheritance includes ONLY those things
enumerated in Art 776.
Whatever accrues to the heir after the
decedents death (when succession opens),
belong to the heir by virtue of accession or
ownership, not by virtue of succession.
Heir owns the accruals not by succession.
To say that accruals are inherited is to negate
the principle in Art 777 that the transmission
takes place upon death.


ART 782.

Heir = a person called to the succession either
by the provision of a will or by operation of law.

Devisees / Legatees = persons to whom gifts of
real and personal property (respectively) are
given by virtue of a will.

Distinction between heir and devisee/legatee
important in preterition.
Preterition effects:
The institution of an
heir is annulled
The institution of
legatees and devisees
remain effective to
the extent that
legitimes are not
impaired.

Recall Castan:
HEIR DEVISEE / LEGATEE
- one who succeeds to
the whole or aliquot part
of the inheritance
- one who succeeds to
definite, specific and
individual properties
- by universal succession - by particular
succession





TESTAMENTARY SUCCESSION

The code is not logical. We should have started with
compulsory succession since it prevails over all the
other modes of succession.

Testamentary succession = see Art 779.


ART 783.

What is a will?
1. A will is an act whereby a person is
permitted,
2. Within the formalities prescribed by law,
3. To control to a certain degree the
disposition of his estate,
4. To take effect upon his death.


Note: the will disposes only the free portion.

The will as an act is too broad a definition. It
should have been limited to only an instrument
or a document because to say act may include
nuncupative or oral wills, which are not
recognized in our Code.
To define it as an act would have been
accurate under the Spanish Code because they
allowed oral wills.
[Exception: oral wills are allowed under Muslim
Personal Laws = testamentum nuncupativum]

Elements:
1. permitted - will making is purely statutory; a
law may later on be passed prohibiting the
making of wills
2. formalities - there are requirements as to the
form in cases of attested and holographic wills
- 6
3. control - the testators power to dispose is
limited by the system of legitimes (which should
go to the compulsory heirs)
4. after death - testamentary succession, similar to
all the 3 other kinds, is mortis causa.


Vitug vs. CA
Survivorship agreement in a bank account.
The survivorship agreement is a conveyance but it is
not a conveyance mortis causa. (It is not a will.)
A will is a personal, solemn, revocable, and
free act by which a capacitated person disposes of
his property and rights and declares or complies with
duties, to take effect after his death.
Neither is the survivorship agreement a
donation inter vivos, because it was to take effect
upon death of one party. It is also not a donation
between spouses, because it involved no conveyance
from one spouse to another.
The survivorship agreement is in reality a
contract with a term, the term being death.

BALANE: The survivorship agreement circumvents
the law on legitimes. It may deprive the compulsory
heirs of legitimes.


CHARACTERISTICS OF A WILL
1. PURELY PERSONAL - non-delegability of the
disposing power
2. FREE AND
INTELLIGENT
- testators consent
should not be vitiated
3. SOLEMN AND FORMAL - subject to formalities
under the law; depends
on whether attested or
holographic
4. REVOCABLE AND
AMBULATORY

5. MORTIS CAUSA


6. INDIVIDUAL - joint wills are
prohibited.
7. EXECUTED WITH
ANIMUS TESTANDI
- (see Rizals Mi Ultimo
Adios not a will)
8. EXECUTED WITH
TESTAMENTARY
CAPACITY

9. UNILATERAL


10. DISPOSITIVE OF
PROPERTY
- purpose of will making
11. STATUTORY




ART 784.
ART 785.


Making of will = strictly personal act.
It cannot be
left (in whole or in part) to the discretion
of a 3
rd
person, or
accomplished through the
instrumentality of an agent or attorney.

What does purely personal mean?
It means that the will-making is non-
delegable.
It must be done by the testator himself.

What cannot be delegated?
The essence of a will.
i.e. the exercise of diposing power.

What is this essence or exercise of disposing power,
that is non-delegable?
Go to 785.
785:
1. The designation of heirs, devisees
or legatees (HDL)
2. The duration or efficacy of (such
designation)
3. The determination of the portions
which they are to take (when
referred to by name)

cannot be left to the discretion of a
third person.


ART 786.

General Rule: non-delegability of will-making.
Exception: 786. The testator may entrust to a
third person:
1. The DISTRIBUTION of specific property
or sums of money
that he may leave in general
or specified classes or causes,
and
2. The DESIGNATION of the persons,
institutions or establishments
to which such property or
sums of money are to be given
or applied.

NON-DELEGABLE DELEGABLE
Must be by testator
himself
May be made by a third
person.
Property or
amount of money
to be given
Manner of
distribution
(proportional to
the total amount)
Class or cause to
be benefited
Designation of
persons within
such previously
mentioned class or
cause (recipients)



ART 787.


Testator may not make a testamentary
disposition in a manner that:
Another person has to determine whether
or not it is to be operative.

SUCCESSION (BALANE) CHAMP 2004
Notes - 7 -
The article prohibits the delegation to a 3
rd
person
the power to decide whether a disposition should
take effect or not. This is because in effect, the 3
rd

person becomes the testator.

This is entirely different from the acceptance or
renunciation by the heir as beneficiary. The heir has
the freedom to accept or renounce the testamentary
benefit.


ART 788-794.
RULES OF INTERPRETATION


Art 788
Testacy is preferred to intestacy, since testacy
is the express will of the decedent, while
intestacy is merely implied
Ut res magis valeat quam pereat. That the
thing may rather be effective than be without
effect. construction in favor of validity and
not nullity.

Art 789
Ambiguity = capable of more than 1 meaning
Two kinds of ambiguity
LATENT PATENT
Latere = to be hidden Patere = to be open,
obvious, evident
Ambiguity that is not
obvious on the face of
the will
Ambiguity that is
obvious on the fac of
the will
IN EITHER CASE, the ambiguity of a will is NOT a
ground to avoid it. It must be cleared up and
resolved, not stricken down. Testacy is preferred to
intestacy. We must give effect to the testamentary
disposition.
How to deal (with ambiguities):
We have to ascertain the intention of the
testator.
Any admissible and relevant evidence may
be used to clear up the meaning and
discover the intention of the testator,
EXCEPT oral declarations of the testator.
You can use extrinsic evidence or intrinsic
evidence.

Art 790
General meaning

Art 791
Because testacy gives the express will of the
testator, we must apply integral
interpretation.

Art 792
Severability or separability principle

Art 793
Article is problematic because it makes the
will speak as of the time it is made, and not
at the time of the decedents death (which
should be the case).
Obviously the effects of a will operate only
at the time of death, because you dont
make a will to take effect NOW!

Art 794
GR: In legacy or devise, the testator gives
exactly the interest he has in the thing.
EX: He can give a lesser interest (794) or a
greater interest (929).


ART 795.

The validity of a will as to its form
Depends upon the observance of the law
in force at the time it is made.

Aspects of Validity of Will
EXTRINSIC /
FORMAL VALIDITY
INTRINSIC /
SUBSTANTIVE VALIDITY
Refers to the
requirement of form
Refers to the substance
of the provisions
Governing Law
As to Time
a. For Filipinos - at the
time of execution of will
b. For Foreigners - same


As to Place
a. For Filipinos - law of
citizenship, domicile,
residence, execution
place, or Philippines
b. For Foreigners - same
Governing Law
As to Time
a. For Filipinos - time of
death
b. For Foreigners -
personal law

As to Place
a. For Filipinos -
Philippine law


b. For Foreigners -
national law



ART 796-801
TESTAMENTARY CAPACITY (Testamenti Factio)

Testamentary capacity
ACTIVE PASSIVE
Testamentifacion activa
or testamentary capacity
Inheriting by will
Refers to the
requirements for will
making
Refers to the
requirments for
inheriting by a will

Who has testamentary capacity?
Only a natural person.
ART 796: All persons who are not
expressly prohibited by law may make a
will.


Disqualifications
1. Those under 18 (minors)
ART 797: Persons of either sex under 18
years of age cannot make a will.

2. Those of unsound mind
ART 798: In order to make a will, it is
essential that the testator be of sound mind
at the time of its execution.
- 8

What does unsound mind mean?
The code does not say.
BUT, we can use the definition of sound mind
in Art 799.
Note: the law is interested in the legal
consequences of the testators mental capacity
or incapacity, not in the medical aspects of the
disease.

What is of sound mind?
ART 799: To be of sound mind:
it is NOT necessary that:
a. the testator be in full
possession of all his reasoning
faculties
b. the testator's mind be wholly
unbroken, unimpaired, or
unshattered by disease, injury
or other cause.

It is SUFFICIENT that the testator was
able, at the time of making the will, to
know:
a. the nature of the estate to be
disposed of
b. the proper objects of his
bounty, and
c. the character of the
testamentary act


Nature of Estate
testator should have a fairly accurate
knowledge of what he owns
The richer you are, the more liberal you
interpret the requirement of law

Objects of Bounty
Testator should know under ordinary
circumstances, who his relatives in the most
proximate degrees, are.
To give the testator a real option on whom to
give.

Character of Testamentary Act
Testator should know the legal nature of a will.
That he is executing a document that:
a. disposes of his property gratuitously, and
b. which would take affect upon his death.

RECAP
as long as the testator, at the time of making
the will, was capable of perceiving the 3 tests
above, he has testamentary capacity,
whatever else he has medically.
A testator could be medically or mentally
incapable but still testatmentarily capable, or
vice versa.


ART 800.



Is there a presumption of sanity (soundness of
mind)?
Yes. The law presumes sanity. Hence, you
need not prove that you are sane.
ART 800: The law presumes that every
person is of sound mind, in the absence of
proof to the contrary.
But this is only rebuttable. It may still be
overcome by other evidence.


Who proves insanity?
ART 800: The burden of proof that the
testator was not of sound mind, at the
time of making his dispositions, is:
on the person who opposes the probate
of the will.


When is there NO presumption of sanity When is
there a presumption of insanity?
1. ART 800: But if the testator, one month or
less, before making his will,
was publicly known to be insane, the
person who maintains the validity of the
will must prove that the testator made it
during a lucid interval.

2. [TORRES VS. LOPEZ] when the testator,
a. while being placed under
guardianship for insanity , (under
Rule 93 or 101) executes the will,
and
b. before said order has been lifted.

As long there is a court order commitment for
guardianship for insanity there is a
presumption of insanity. When the order is
rescinded, there is no more presumption.
Reason: when the question of insanity is put in
issue in guardianship proceedings, the most
that can be said is that it raises a presumption
of incapacity to make a will. [TORRES VS.
LOPEZ]


When do you determine sanity or insanity?
At the time of making the will
Regardless of any supervening cause


ART 801.

Supervening incapacity does not invalidate
an effective will.

Nor is the will of an incapable validated by
supervening of capacity.


ART 802.

A married woman may make a will
Without the consent of her husband, and
Without the authority of the court.

SUCCESSION (BALANE) CHAMP 2004
Notes - 9 -
ART 803.

A married woman may dispose by will
All her separate property, and
Her share of the CPG or ACP.



ART 804.

ATTESTED WILLS HOLOGRAPHIC WILLS
Articles 805, 806, 807,
808
Articles 810, 811, 812,
813, 814

What are the formal requirements for ATTESTED and
HOLOGRAPHIC wills? (COMMON REQUISITES)
1. Every will must be in writing, and
2. Executed in a language or dialect known
to the testator.

Note: The will itself need not state that the language
is known to the testator. Compliance with the
language requirement may be shown by extrinsic
evidence. [LOPEZ VS. LIBORO]

The testator also need not know the language of the
attesting clause, since the attestation clause is the
affair of witnesses only.

Requirement 1: In writing
Anywhere written, by a typewriter, in pad
paper, even in a wall.
Oral or nuncupative wills are not allowed,
except for Muslims.

Requirement 2: Language or dialect known
Language = anything that may be written.
Ilocano is a language. It has grammar, it has
literature. It need not be a national language.
Dialect = does not have a written form, no
literature.
Presumption of compliance = that the testator
knew the language in which the will was
written.


Suroza vs. Honrado
Administrative action against a judge who
admitted to probate a will where it was written in
English, but admits in the latter paragraphs that it
was translated in Filipino for the benefit of the
testator, and admits that the testator was illiterate.
That could only mean that the will was
written in a language not known to the illiterate
testator and is therefore void because of the
mandatory provision of Art 804.


Abangan vs. Abangan
Will written in Cebuano dialect and executed
in Cebu by the testator.
In the absence of proof to the contrary,
there is a presumption that she knew this dialect in
which the will was written. For the presumption to
apply, it must appear that:
1. the will was executed in a language
generally spoken in the place of execution.
And,
2. the testator must be a native or resident of
such locality.


ART 805
REQUIREMENTS FOR AN ATTESTED WILL

Every will, other than a holographic will,
a) must be subscribed at the end thereof, by
a. the testator himself, or
b. by the testator's name written by some
other person
in his presence, and
by his express direction

2. and attested and subscribed by 3 or more
credible witnesses
a. in the presence of the testator, and
b. (in the presence) of one another.

The testator, OR
The person requested by him to write his name,
AND
The instrumental witnesses, shall:
also sign as aforesaid,
each and every page thereof,
except the last,
on the left margin,
and all the pages shall be numbered
correlatively in letters,
placed on the upper part of each page.

The attestation shall state:
1. the number of pages used upon which the
will is written, and
2. the fact that:
the testator signed the will and every
page thereof,
or caused some other person to write
his name
under his express direction,
in the presence of the
instrumental witnesses, and
3. that the latter (instrumental witnesses)
witnessed and signed the will and all the
pages thereof
in the presence of the testator,
and of one another.

If the attestation clause is in a language not
known to the witnesses, it shall be interpreted
to them.


ART 806.

Every will must be acknowledged before a
notary public by 1) the testator and, 2) the
witnesses.

The notary public shall not be required*
to retain a copy of the will, or
- 10
to file another with the office of the clerk of
court.

*to protect secrecy of the will and encourage will-
making.


Note: in effect, BOTH the testator and the witnesses,
need not know the language of the attestation
clause.


Must an attested will be dated?
Nope. No need.


Subscribed by the testator or his agent, (at the end
thereof)
In his presence, and
By his express direction
In the presence of the witnesses


Subscribing is not the same as signing.
To subscribe = to write under
To sign = to simply place a distinguishing
mark
Signing is broader than subscribing.

The law should not be limited to subscribing. We
include signing.
This accommodates signing by thumbmark.
A thumbmark is not a subscription but is valid
signing.
The testators thumbprint is always valid and
sufficient signature. [PAYAD VS. TOLENTINO]
[MATIAS VS. SALUD]
It validity of thumbmarks is not limited to only
cases of illness or infirmity. [DE GALA VS.
GONZALES]


Payad vs. Tolentino
The testator was assisted by his attorney, in
placing his thumbmark on each and every page of
the will, and that said attorney merely wrote the
testators name to indicate the place where the
testator placed said mark. In other words, the
attorney did not sign for the testator. This is valid
because the testator signed by placing his
thumbmark.
A statute requiring a will to be signed is
satisfied if the signature is made by the testators
mark. Hence, it is not necessary that the attestation
clause should state that the testator requested the
attorney to sign for his name, inasmuch as the
testator himself already signed the will, in
accordance with law. Admitted to probate.


Matias vs. Salud
The legal requisite that the will should be
signed by the testator is satisfied by the thumbprint
or other mark affixed by him. If such mark is affixed
by the decedent, it is unnecessary to state in the
attestation clause that another person wrote the
testators name at his request. The absence of which
is not a fatal defect.


Is a cross considered a signature like thumbmark?
No. [GARCIA vs. LACUESTA] It is unreliable.

Garcia vs. Lacuesta
It is not pretended here that the cross
appearing on the will is the usual signature of
Mercado. We are not prepared to like the mere sign
of a cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.
BALANE: A cross is easy to falsify! Unless of course,
your usual signature is a cross.


What must the agent write?
Agent need to write ONLY THE TESTATORs
NAME. (in his handwriting dapat!)
That is all that is required for validity.
He need not write his own name, or both their
names.


Barut vs. Cabacungan
It is immaterial as to who writes the name
of the testator, provided that the the testators name
is written at the testators request and in the
testators presence, and in the presence of all the
witness to the execution of the will.
It is unimportant whether the person who
writes the name of the testator signs his own or not.
It may be wise and practical that the one who signs
the testators name also sign his own, but that is not
essential to the validity of the will. The law requires
only three witnesses, not four. The main thing to be
established in the execution of the will is the
signature of the testator.


Can the agent of the testaor be also one of the
witnesses?
If there are more than 3 witnesses - of
course!
If there are exactly 3 - unsure!


Where must the testator sign in the will?
At the end of the will.

Where is the end of the will?
If the will contains only dispositive portions
then simply signed at the end.
If the will contains both dispositive and non-
dispositive portions then either sign at the
1. physical end, - where the writing stops,
or
2. logical end - where the last disposition
ends
either valid.



champ.reyno 2004
SUCCESSION (BALANE) CHAMP 2004
Notes - 11 -
What is the effect of signing NOT at the end?
It invalidates the ENTIRE attested will.
Because it violates the rule on 805.
Signing must be at the end.


What is the meaning of "Testator must sign in the
presence of witness?
Actual seeing by the witnesses is not required,
only the ability to see each other (the testator
and the witnesses) by merely casting their
eyes in the proper direction is needed.
[NERA VS. RIMANDO]

Nera vs. Rimando
The true test of the presence of the testator
and the witnesses in the execution of the will is not
whether they actually saw each other sign, but
whether they might have seen each other sign, had
they chosen to do so, considering their mental and
physical condition, and the position with relation to
each other at the moment of signing.
The position of the parties in relation to
each other at the moment of signing must be such
that they may see each other sign if they choose to
do so.
It is sufficient that a witness was actually
and physically present and in such position that he
could see everything that took place by merely
casting his eyes in the proper direction and
without any physical obstruction to prevent his
doing so. It does not depend upon proof that that
their eyes were actually cast upon the document at
the moment of subscription by each of them.
Admitted to probate.


What must the witnesses do?
1. attest - the act of witnessing, and
2. subscribe - the act of signing their names
*both must be done.


May the witness sign by thumbmark also, like the
testator?
Debatable. Although many contend that it is
not allowed since witnesses must be able to
read and write. (820)


Again, where must the testator or his agent sign?
At each and every page thereof, on the left
margin,
Except the last page because it already
contains the testators signature (see above)


What is mandatory and what is merely directory in
signing?
MANDATORY DIRECTORY
Signing on every page
In the presence of
witnesses
Place of signing
(margins), it can be
anywhere. *In the
1950s typewriters had
only left margins.


Icasiano vs. Icasiano
The failure of the witness to sign page 3 of
the original was due to the fact that he may have
lifted two pages instead of one when he signed the
same, but he admitted that page 3 was signed in his
presence.
We hold that the inadvertent failure of one
witness to affix his signature to one of the pages,
due to the simultaneous lifting of 2 pages in the
course of signing, is not per se sufficient to justify
denial of probate. The impossibility of substitution of
this page is assured not only of the fact that the
testator and two other witnesses did sign the
questioned page, but also by its bearing the
coincident imprint of the seal of the notary.
The law should not be strictly and literally
interpreted where the purpose of the law is to
guarantee the identity of the testament and its
pages is sufficiently attained. No intentional or
deliberate deviation existed. Otherwise, the
witnesses may sabotage the will by muddling or
bungling it or the attestation clause.
It was pure oversight and satisfies the
requirements in order to guard against fraud and bad
faith, without undue or unnecessary curtailment of
the testamentary privilege.

BALANE: This ruling should not be interpreted that
witnesses may dispense with singing each and every
page of the will. Icasiano ruling is not recommended.


How about the witnesses, where must they sign?
Witnesses must sign every page except the
last,
In the presence of the testator and of one
another.


Is there an order for signing?
It is immaterial where the signing is done in a
single transaction.
It is material when the signing is done in
several transactions. In which case, the
testator must affix his signature ahead of the
witnesses.
Note: if the acknowledgement is done by the
testator and the witnesses separately, all of
them must retain their respective capacities
until the last one has acknowledged!


How about pagination?
Page must be numbered correlatively in
letters, in the upper part of each page.
MANDATORY DIRECTORY
Pagination by means of
the conventional system
(roman numerals,
Arabic, greek, letters,
words, etc.)
Pagination in letters
Pagination in upper part


Must the testator sign the attestation clause?
Nope. Is the affair of the witnesses.
- 12
Where must the signatures of the witnesses in the
attestation clause be? Bottom or Left margin?
Must be at the bottom [CAGRO VS. CAGRO]


Cagro vs. Cagro
The attestation clause is not signed by the
attesting witnesses where the signatures of the 3
witnesses do not appear at the bottom of the
attestation clause, even if the page is signed by the
witnesses on the left hand margin.
An unsigned attestation clause cannot be
considered as an act of the witnesses, since the
omission of their signatures at the bottom negatives
their participation.
The signing at the left hand margin is not
substantial compliance because if the attestation
clause is not signed at the bottom, it would be easy
to add such clause to a will on a subsequent occasion
even in the absence of the testator or any or all of
the witnesses.

Bautista Angelo, dissent:
There is substantial compliance. The
objection is too technical to be entertained. The
purpose of the law which is to avoid the substitution
of the pages has already been accomplished, since
the fear of substitution has been obviated by the
uncontradicted testimony of the witnesses.

Balane, concurring:
It is safer to sign at the bottom.


Note:
If there is only one page for the will, and
another page for the attestation, there is no
need for marginal signatures. Since on the first
page, the testator signs at the bottom, and the
witnesses may also sign below. At the second
page, the attestation clause is signed at the
bottom by the witnesses.


What is the last requirement for attested wills?
Acknowledgement by the notary public
Notarization = it becomes a public document,
and prima facie true.
Note: at this time, all the parties must still
have capacity.

Must the notary public acknowledge in the presence
of the testator and the witnesses?
No. [JAVELLANA VS. LEDESMA]


Javellana vs. Ledesma
Whether or not the notary signed the
certification or acknowledgement in the presence of
the testator and the witnesses does not affect the
validity of the will (codicil). The NCC does not require
that the signing of the testator, witnesses and the
notary be accomplished all in one single act.
The NCC requires that the testator and the
witnesses sign in the presence of each other. All that
is thereafter required is that the will must be
acknowledged before a notary public.
The subsequent singing and sealing by the
notary is not part of the testamentary act. Hence,
their separate execution out of the presence of the
testator and the witnesses cannot be said to violate
the rule that the testament should be completed
without interruption.
OBITER: Art 806 does not contain words
requiring that the testator and the witnesses should
acknowledge the testament on the same day or
occasion that it was executed.


May the notary public be also counted as a witness?
Definitely NOT. [CRUZ VS. VILLASOR]

Cruz vs. Villasor
The notary public before whom the will was
acknowledged cannot be considered as the 3
rd

instrumental witness since he cannot acknowledge
before himself his having signed the will. To
acknowledge means to avow, in front or before. If
the 3
rd
witness were a notary public himself, he
would have to avow, assent, or admit his having
signed the will in front of himself! He cannot do this
because he cannot split his personality into two so
that one will appearing before the other acknowledge
his participation in the will. For he would be
interested in sustaining the validity of his own act.
US cases are not applicable since there, a
notary is merely an instrumental witness, not an
acknowledging witness. Probate denied.

RECAP:
May a notary public be an attesting witness?
Yes.
If a notary public is also the witness, does it
invalidate the will?
No. If there are 3 more.
So it simply means that, a notary public who
is also a witness is simply not counted as a
witness.


ART 807,
ART 808.
SPECIAL REQUIREMENTS FOR HANDICAPPED
TESTATORS

If testator is
DEAF OR DEAF-MUTE BLIND
If able to
read
If unable to
read
He must
personally
read the
will.
He shall
designate
two persons
to read it
and
communicate
to him, in
some
practicable
manner, the
contents
thereof.
The will shall be
read to him
twice.

Once - by one of
the subscribing
witnesses, and

Again - by the
notary public
before whom
the will is
acknowledged.
SUCCESSION (BALANE) CHAMP 2004
Notes - 13 -


Garcia vs. Vasquez
The testimony of the ophthalmologist who
has first had knowledge of the actual condition of her
eyesight was that her vision remained mainly for
viewing distant objects and not for reading print.
Thus conclusion is inescapable that she was
incapable of reading and could not have read the
provisions of the will supposedly signed by her. The
instrumental witnesses stated that she merely read
the instrument "silently. She therefore could not
see at normal reading distance.
The rationale behind the requirement for
reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is
illiterate) is to make the provisions thereof known to
him, so that he may be able to object if they are not
in accordance with his wishes.
The aim of the law is to insure that the
dispositions in the will are properly communicated to
and understood by the handicapped testator, thus
making them truly reflective of his desire. Hence, not
only must the will be read to him once, but must be
twice by two different persons (the witness, and the
notary)

Balane: These are protective measures because it is
easy to fool a blind person.

Note:
It is not required that the attestation clause
expressly state the Art 808 was complied
with. Proponent has burden of proof.
BUT, Art 808 and 807 (by evident analogy),
are still mandatory. Failure to comply with
either results in the nullity or denial of
probate.


Alvarado vs. Gaviola
Art 808 was substantially complied with
when the documents were read aloud to the testator
by the lawyer, once only, with each of the three
instrumental witnesses and the notary public merely
following the reading with their respective copies of
the instrument.
There was substantial compliance since its
purpose of making known to the testator the
contents of the will was served. It was not the first
time that the testator affirmed the truth and
authenticity of the contents of the will. He had earlier
already acknowledged the will in accordance with his
express wishes when the draft was sent to him. We
can safely conclude that the testator was reasonably
assured that what was read to him were the terms
actually appearing on the documents.
The spirit of the law was served, though the
letter was not. It was not the object of the law to
restrain or curtail the exercise of the right to make a
will.


Notably, Alvarado was not totally blind at the time
the will was executed. He was capable of counting
fingers at 3 feet, hence merely poor eyesight.
Clear from the foregoing is that Art 808
applies not only to blind testators, but also for those
who are incapable of reading their wills. The testator
comes within the meaning of "blind as it is used in
808.


ART 809.
RULE OF SUBSTANTIAL COMPLIANCE

In the absence of:
Bad faith,
Forgery
Fraud
Undue and improper pressure and
influence,

Defects and Imperfections, in the:
a) from of attestation, or
b) in the language used therein,

shall not render the will invalid If it is
proved that:
the will was in fact executed and
attested in substantial compliance
with all the requirements of 805.


JBL Reyes: a liberalization running riot!
Balane: an attempt to temper or liberalize the
strictness of the formal requirements of attested
wills!

This article does not provide sufficient guidelines
to limit the discretion of the judge in deciding
compliance. The Judge is clueless as to how
liberal he can be.

Remedy by Justice JBL Reyes:
If the defects or imperfections can be supplied
by an examination of the will itself, and it is
proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of 805 will valid. [CANEDA
vs. CA]
Ex. If the attestation clause fails to state the
fact that the testator signed each and every
page thereof be liberal. You can easily
verify these facts upon visual examination of
the will.
Ex. If the attestation clause fails to state that
the witnesses signed in each others presence
be careful. This might be a fatal flaw.


Caneda vs. CA
Art 809 must be limited to disregarding only
those defects that can be supplied by an
examination of the will itself, such as:
whether all the pages are numbered
whether the signatures appear in each and
every page, and
whether the subscribing witness were really
three, or
the will was itself notarized.

- 14
All these are facts that the will itself can reveal, and
the defects or even omissions concerning them in
the attestation clause can safely be disregarded.

But:
the total number of pages, and
whether all persons required to sign did so in
the presence of each other (even if three
persons signed, it is not sure if they signed in
the presence of one another!)
must substantially appear in the attestation
clause, being the only check against perjury.

Omissions which can be supplied by mere
examination of will itself, without need of resorting
to extrinsic evidence is not fatal.

Omissions which cannot be supplied except by
evidence aliunde would result in the invalidation of
the attestation clause, and ultimately the will itself.


ART 810.
REQUIREMENTS FOR A HOLOGRAPHIC WILL

A person may execute a holographic will which:
a. must be entirely written,
b. dated, and
c. signed by the hand of the testator
himself.

It is subject to
d. no other form, and
e. May be made in or out of the
Philippines, and
f. Need not be witnessed.


Holographic wills are the soul of simplicity.
ADVANTAGES DISADVANTAGES
Secrecy Danger of forgery,
Inexpensiveness Greater difficulty of
determining
testamentary capacity
Brevity Increased risk of duress


Must the entire holographic will be handwritten?
What is the effect of non-compliance?
YES. If only part is handwritten and the other
parts are not, then the entire will is void.


How must you date the holographic will?
Any form.
It may be December 25, 2004. 25 December
2004, 12/25/04, 25/XII/2004. Christmas Day,
2004. Bastille Day, 2005. Feast of St. Ignatius,
2003. The 50
th
anniversary of World War II,
etc.
As long as there is a generally known feast, or
historic event that can be verified and
checked.


Roxas vs. De Jesus
Will merely had the date, Feb./61. Since the
present NCC did not expressly provide for "ao,
mes y dia and merely required that the will be
dated, this is valid. Liberal construction of the
holographic will should prevail.
The complete date is required merely to
provide against such contingencies as that of two
competing wills executed on the same day, or of
the testator becoming insane on the day on which
a will was executed. In this case, there is no such
contingency.
There appearing no fraud, bad faith, or
undue influence, and the authenticity of the will is
already established, the date, "Feb./61 is valid
compliance.

Balane, dissent: The date must be complete! El
ao, mes, y dia! The only saving grace in the case
was that no fraud or bad faith existed. But the
general rule should be that it must be a complete
date, that is, include the day, month and year of its
execution.


Where must the date be placed?
Oh anywhere. The beginning, middle or end
that will do.
[LABRADOR VS. CA] the date was in the
contents of the will


Labrador vs. CA
The law does not specify a particular
location where the date should be placed in the will.
The only requirement is that the date be in the will
itself and executed in the hand of the testator.

Where must the testator sign the will?
At the logical end, as implied from 812.

How must the testator sign the will?
By the hand of the testator.
Can it be by thumbmark?
The article does not seem to permit this, kasi
nga hand!


ART 811.

In the probate of a (uncontested) holographic
will, it shall be necessary that:
At least ONE witness, who knows the
handwriting and signature of the testator,
explicitly declare that the will and the
signature are in the handwriting of the
testator.

If the will is contested:
At least THREE of such witnesses shall be
required.
a. In the absence of any competent witness
referred to in the preceding paragraph,
AND
b. If the Court deems it necessary
expert testimony may be resorted to.
SUCCESSION (BALANE) CHAMP 2004
Notes - 15 -

Notes:
Art 811 is a rule of evidence.
It merely states that to determine the validity
of the holographic will, it requires the
presentation of the will itself.
This article applies only to post mortem
probates, since in ante mortem probate, the
testator himself can sufficiently identify the
document himself.


What is a contested holographic will?
That which a ground for opposition is based on
the allegation that the will is not written by the
testator himself.
That which the genuineness of the signature is
in issue.
It does NOT refer to grounds of fraud, or
vitiation of consent.

UNCONTESTED
HOLOGRAPHIC WILL
CONTESTED
HOLOGRAPHIC WILL
Only one (1) witness
necessary to declare
handwriting of testator.
Three (3) witnesses are
required.

Two views:
Mandatory 3 - [CODOY]
Directory - [AZAOLA]

Balane: The credibility of
witnesses does not
depend on the numbers,
but on the intrinsic
quality of their
testimonies.


Azaola vs. Singson
Since the authenticity of the will was not
contested, he was not required to produce more than
one witness. BUT, even if the genuineness of the will
was contested, our NCC cannot be interpreted as to
require the compulsory presentation of 3 witnesses
to identify the handwriting of the testator.
Since no witnesses may have been present
at the execution of the will, (there being none
required by law), it becomes obvious that the
existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the
proponent.
There may be no available witness
acquainted with the testators hand, or even if
available, is unwilling to testify. Hence, compliance
with the Art 811 may become an impossibility.
Anyway, expert testimony may be resorted
to if the court deems it necessary.


Codoy vs. Calugay
The language used in 811 is mandatory.
The word "shall connotes mandatory order.




Comparison of Codoy and Azaola by Balane:
Conventional wisdom tells us Codoy overruled
Azaola.
But looking it at again, there is no such
overruling because all the witnesses in Codoy
were useless! The reason for denying probate
in Codoy was NOT really because there were
less than 3 witnesses, but because of the poor
quality of the testimony of the remaining
witnesses! (yung 2 na natira!) .
Hence, the Azaola case is still preserved, and
the rule requiring 3 witnesses is not really
mandatory.


Must the will itself be produced for probate?
Although Art 811 does not expressly says so,
the case of [GAN VS. YAP] adds the additional
requirement. [SCAEVOLA]
In the probate of a holographic will, the
document itself must be produced.
If the holographic will is lost, then the will
cannot be probated anymore.
Except: If there is copy of the holographic will
left. [RODELAS VS. ARANZA]

Gan vs. Yap
Authenticity and due execution is the
dominant requirement to be fulfilled when such will
is submitted to the courts for allowance. In the
matter of holographic wills since they need no
witnesses, it is reasonable to suppose that the law
regards the document itself as material proof of
authenticity and as its own safeguard since it could
be demonstrated that it was or was not in the hands
of the testator himself.
The witnesses so presented do not need to
have seen the execution of the holographic will. They
may be mistaken in their opinion of the handwriting,
or they may deliberately lie in affirming it as the
testators hand. The court itself may, in view of such
contradictory testimony may use its own visual
sense, and decide in the face of the document.
Obviously, when the will itself is not
submitted, these means of opposition and of
assessing the evidence are not available. Then the
only guarantee of authenticity (the testators
handwriting), has disappeared.


ATTESTED WILL HOLOGRAPHIC WILL
May be proved by
testimonial evidence
when lost or destroyed
(secondary evidence)
The only guarantee of
authenticity is the
handwriting itself
The testimony of the
subscribing witnesses
shows the authenticity.
Loss of holographic will
entails the loss of the
only medium of proof
The loss of original
the subscribing
witnesses are available
to authenticate.
Here, there is a
possibility that only one
man could engineer the
whole fraud.
It is quite hard to
convince 3 witnesses and
the notary to deliberately
lie.
(Oppositors have no way
to expose the errors
because the document
itself is not at hand.
- 16


Rodelas vs. Aranza
A photostatic copy or xerox copy of the
holographic will may be allowed probate because
comparison can be made with the standard writings
of the testator. As recognized in the Gan ruling,
footnote 8, a lost holographic will may still be proved
by a photographic or photostatic copy.
Even a mimeographed or carbon copy, or
other similar means, if any, of determining the
authenticity of the handwriting of the deceased may
be exhibited and tested before the probate court.
Hence, the xerox copy of a lost or destroyed
holographic will may be admitted because then the
authenticity of the handwriting of the deceased can
be determined by the probate court.

Balane, Dissent: Xerox copies are not accurate
because there the "penlifts would no longer be
identifiable. (pen-strokes).


ART 812.

In holographic wills,
The dispositions of the testator
Written below his signature

must be dated and signed by him
In order to make them valid as
testamentary dispositions.


ART 813.

When a number of dispositions appear in a
holographic will
Are signed without being dated, and
The last disposition has a signature and
date,

such date validates the dispositions
preceding it, whatever be the time of prior
dispositions.


What are the requirements for each additional
dispositions (in holographic wills)?
a. signature
b. date


What if there are many additional dispositions (in a
holographic will), how may the signature and date be
placed?
1) signature and date, OR
2) each additional disposition signed and
undated but the last disposition must be
signed and dated.
3) If in case of several additional dispositions,
before the last one are dated but not
signed, only the last will be valid if the last
is signed and dated.


ART 814.

In case of any:
a. insertion
b. cancellation in the holographic will
c. erasure, or
d. alteration

the testator must authenticate the same by
his full signature.

What does full signature mean? How does the
testator countersign?
By his usual and customary signature
Not necessarily by the testators full name

What if the testator does not authenticate or
countersign the errors?
The change is simply considered not made.
The will is NOT entirely invalidated or
invalidated as a whole.

So the erroneous portions are invalidated?
Generally yes.
Exception: When the portion involved is an
essential part of the will (such as a date
since it is required of holographic wills), then
the error is also voided. [KALAW VS. RELOVA]

Kalaw vs. Relova
Ordinarily, when a number of erasures,
corrections, and interlineations made by the testator
in a holographic will have not been noted under his
signature, the will is not thereby invalidated as a
whole, but at most only as respects the particular
words erased, corrected or interlined.
However in this case, the holographic will
had only one (1) substantial provisions, which was
altered by substituting the original heir with another,
and such alteration did not carry the requisite
authentication by the full signature of the testator.
The effect must be that the entire will is voided or
revoked for the simple reason that nothing remains
in the will after that which could remain valid.


ART 815.
FILIPINO ABROAD

When a Filipino is in a foreign country,
he is authorized to make a will in any of
the forms established by the law of the
country in which he may be.
Such will may be probated in the
Philippines.


ART 816.
ALIEN ABROAD

The will of an alien who is abroad,
Produces effect in the Philippines,
If made with the formalities prescribed by
a. the law of the place in which he
resides, or
SUCCESSION (BALANE) CHAMP 2004
Notes - 17 -
b. according to the formalities
observed in his country, or
c. in conformity with those which
This Code prescribes.


ART 817.
ALIEN IN THE PHILIPPINES

A will made in the Philippines by a citizen or
subject of another country,
which is executed in accordance with the
law of the country in which he is a citizen
or subject, AND
which might be proved and allowed by
the law of his country
shall have the same effect as if executed
according to the laws of the Philippines.


Summary for Filipino or Alien What Will Govern
the Formal Validity of his Will, in order that it may be
probated in the Philippines?

1. the law of his citizenship
2. the law of the place of execution
3. the law of his domicile
4. the law of his residence
5. the law of the Philippines


ART 818.
JOINT WILLS

Two or more persons
cannot make a will jointly, or
in the same instrument,

Either:
for their reciprocal benefit, or
for the benefit of a third person.


What is a joint will?
a) It is ONE DOCUMENT, which constitutes the
will of two or more individuals
b) Such document functions as the will or two or
more persons
c) A joint will has nothing to do with "joint
testamentary dispositions it simply means
one document only!!
d) Joint wills are void.

Are joint wills void?
YES. They are void.

Why are joint wills void?
1. it limits the modes of revocation (ex. the
revocation by physical destruction would not be
possible because one testator may not revoke
his will (by destruction) without also revoking
the will of the other testator.
2. diminution of testamentary secrecy
3. danger of undue influence
4. danger of one testator killing the other
in the case of husband and wife, if the
will is made jointly, the spouse who is
more aggressive, stronger in will or
character is liable to dictate the terms
of the will for his or her benefit
also, in case of reciprocal wills (where
the whole property of one spouse goes
to the surviving spouse, there may be
the temptation to kill or dispose of the
other. [DACANAY VS. FLORENDO]

Are reciprocal wills valid?
Valid.
One spouse, for example, may give to the
other spouse as a successor.
BUT the will must be written in two separate
documents.


ART 819.

Wills, prohibited by the preceding paragraph
(joint wills)
Executed by Filipinos in a foreign country
shall not be valid in the Philippines
Even though authorized by the laws of the
country where they may have been
executed.


Summarize the rule on joint wills.
BY WHOM STATUS
Executed by Filipinos in
the Philippines
VOID
Executed by Filipinos
abroad
VOID (as an exception
to Art 815)
Executed by aliens
abroad
Art 816
Executed by aliens in
the Philippines
Controverted. Either
Void because of public
policy or valid according
to Art 817
Executed by a Filipino
and an alien
Filipino - always void
Alien - either Art 816,
or void because of
public policy, or Art 817.



WITNESSES TO (ATTESTED) WILLS

ART 820.
ART 821.
QUALIFICATION / DISQUALIFICATION OF
WITNESSES


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

- 18
The following are disqualified from being
witnesses to a will:
1. any person not domiciled in the
Philippines.
2. Those who have been convicted of:
i. falsification of a document,
ii. perjury, or
iii. false testimony

These provisions apply only to attested wills.

What are the six qualifications of witnesses in
attested wills?
1. sound mind
because attestation is an act of the
senses
2. at least 18 years old
3. not blind, deaf, dumb
dumb = mute! (not someone
stupid)
4. able to read and write
5. domiciled in Phils.
Citizenship is not a factor
Domicile = because of the great
probability of being called by the
court to be a witness
6. must not have been convicted of
falsification of document, perjury, or false
testimony.
Conviction has to be by final
judgment
These are crimes affecting
credibility / trustworthiness of a
person (so its still ok if youre
convicted of murder, rape you
can still be honest!)


Gonzales vs. Court of Appeals
Petitioner contends that the term credible is
not synonymous with the term competent and that
the term credible should be interpreted as in the
Naturalization Law.
There is no mandatory requirement that the
witness testify to his good standing in the
community. It is enough that the qualifications under
Article 820 are complied with. We reject the
contention that it must first be established in the
record the good standing of the witnesses in the
community, his reputation for trustworthiness and
reliability, his honesty and uprightness, because such
attributes are presumed of the witness unless the
contrary is proved otherwise by opposing party.
In fine, the rule is that the instrumental
witness in order to be competent must be shown to
have the qualifications under 820 and none of the
disqualifications under 821. For their testimony to be
credible, it only needs to be worthy of belief and
entitled to credence, it is not mandatory that the
evidence be first established on record that the
witnesses have a good standing in the community or
that they are honest and upright. For a person is
presumed to be such unless the contrary is
established.


ART 822.

If the witnesses attesting the execution of a
will are
Competent at the time of attesting
Their becoming subsequently incompetent shall
not prevent the allowance of the wil.


When should the witness be qualified?
At the time of attesting.
Juridical capacity of the witnesses are
determined at the time of the act, (the
execution of the will)
This is the only temporal criterion in the
determination of the competence of the
witness


ART 823.

If a person attests to the execution of a will,
To whom, or
To whose spouse, parent or child,
a device or legacy is given by such will,

such devise or legacy shall, so far as concerns
such person, spouse, parent or child of such
person, or

anyone claiming under such person, or
spouse, or parent or child,

shall be VOID,
Unless there are 3 other competent witnesses
to such will.

However such person so attesting shall be
admitted as a witness as if such devise or
legacy had not been made or given.


This is a misplaced article since it is concerned
not with a qualification of a witness to be a
witness but his capacity to succeed. (refer to Art
1027)

When is a witness disqualified to succeed to legacy
or devise?
When there are only 3 witnesses.


Is the will void?
No. No. No. Not entirely void.
The competence of the person as a witness is
not affected. The will is perfectly valid but the
witness (or relatives) cannot inherit.
They are counted as part of the 3 witnesses and
valid as to the other dispositions.


Does this provision apply only to devisees and
legatees?
No. The disqualification to succeed (not to
witness) extends as well to the heirs.
SUCCESSION (BALANE) CHAMP 2004
Notes - 19 -
The intent of the law is to cover all
testamentary institutions
The disqualification applies to testamentary
dispositions made in favor of the witnesses or
the specified relatives.
Hence, if the party is also entitled to a legitime
or intestate share, he will be able to succeed,
and that portion is not affected by the partys
witnessing the will.


ART 824.

A mere charge on the estate of the testator for
the payment of debts due at the time of the
testator's death does not prevent his creditors
from being competent witnesses to his will.

May creditors be witnesses?
Absolutely yes.
This is because the creditors do not inherit, the
payment of their claims is not a testamentary
disposition.



ART 825.
ART 826.
CODICILS AND INCORPORATION BY
REFERENCE


What is a codicil?
Art 825: A codicil is
a) a supplement or addition to a will
b) made after the execution of a will
c) annexed to be taken as a part thereof
d) by which any disposition made in the
original is Explained, Added to, or
Altered.


Are codicils valid?
Yes, provided Art 826:
In order that a codicil may be effective, it
shall be executed as in the case of a will.


How are codicils and subsequent wills different?
CODICILS SUBSEQUENT WILLS
Merely explains, adds to,
or alters a disposition in
a prior will
Makes separate and
independent and distinct
dispositions
*the distinction is academic because a codicil follows
the form of a will anyway.

Must the codicil conform to the form of the will to
which it refers?
No.
An attested will may have a holographic
codicil;
A holographic will may have an attested codicil


ART 827.

If a will, executed as required by this Code,
incorporates into itself by reference
Any document or paper
Such document or paper shall not be
considered as part of the will unless the
following requisites are present:


So can a will make reference to documents or
papers? How will they become valid part of the will?
Yes.
The following requisites must concur: Art 827:
1. The document or paper referred to in
the will must be in existence at the
time of the execution of the will
(it must ante-date the will)

2. The will must clearly describe and
identify the same, stating among
other things the number of pages
thereof.

3. It must be identified (during probate) by
clear and satisfactory proof as the
document or paper referred to
therein, and

4. It must be signed by the testator and
the witnesses on each and every
page, except in case of voluminous
books of account or inventories.


What is one very important requirement for
the attached documents to be valid?
5. The documents, inventories, books of
accounts, documents of titles and
other papers of similar nature should
under no circumstances, make
testamentary dispositions.
The incorporated document or paper
must not make testamentary
dispositions only a will can do so.

Can holographic wills incorporate documents by
reference?
It seems not.
Since the article requires the signatures of the
testator AND the witnesses on EVERY page of
the incorporated document, it seems that only
attested wills can incorporate documents by
reference, since only attested wills are
witnessed.

ART 828.
REVOCATION OF WILLS AND TESTAMENTARY
DISPOSITIONS

A will may be revoked by the testator at any
time before his death. Any waiver or restriction
of this right is void.

May a will be revoked by the testator?
Yes. At his pleasure during his lifetime.
There is no such thing as an irrevocable will.
(related to Art 834)
- 20
The right to revoke cannot be waived by the
testator.

Why is revocation allowed?
Because according to Article 777,
successional rights vest only upon death.


ART 829,

A revocation done outside the Philippines
By a person who does not have his
domicile in this country
is valid
when it is done:
1. according to the law of the
place where the will was made,
OR
2. according to the law of the
place in which the testator had
his domicile at the time time.

If the revocation takes place in this country
(it is valid) when it is in accordance with
the provisions of this Code.


Summarize the rules on revocation:
MADE IN THE
PHILIPPINES
MADE OUTSIDE THE PHILIPPINES
Follow
Philippine law
Domiciled in
RP
Not Domiciled
in RP
Follow RP
law
Follow
place of
revocation
Follow
place of
execution
Follow law
of place of
execution
Follow law
of place
where
testator
domiciled
at time of
revocation


How may wills be revoked? What are the modes of
revoking a will under Philippine law?
ART 830: No will shall be revoked except
in the following causes:
1. By implication of law
(by operation of law)

2. by some will, codicil, or other
writing executed as provided in
case of wills
(by subsequent will or codicil)

3. by burning, tearing, canceling,
or obliterating the will.
(by physical destruction)


What is revocation by operation of law?
a. preterition
b. legal separation
c. unworthiness to succeed
d. transformation, alienation, loss of object
bequeathed (legacy or devise)
e. judicial demand of credit given as a legacy


What is revocation by subsequent will? Requisites.
1. the subsequent will must comply with the
formal requirements of a will
2. the testator must possess testamentary
capacity
3. the subsequent will must either contain
express revocatory clause, or
implied (or be incompatible with the
prior will) *see Art 831.
4. that such subsequent will be also probated
[MOLO VS. MOLO]
5. * see Art 832.


What is revocation by physical destruction?
a) burning
b) tearing
c) canceling
d) obliterating
*this covers the entire gamut of destruction (ie,
nuclear bomb, flushing in the toilet)

How must physical destruction be done?
ART 830: with the intention of revoking it
a. the testator himself,
b. or by some other person, in
his presence and by his
express direction.

How do you show the testators intention to
revoke by physical destruction?
Corpus the physical destruction itself;
there must be evidence of physical
destruction

Animus a) capacity and intent to revoke
b) the testator must have completed
everything he intended to do - a
completed and finished intention
such as throwing it in the trash
can (nothing left for him to do)
* the corpus and animus must concur to produce
a valid revocation by physical destruction


What is the effect of unauthorized physical
destruction?
ART 830: If burned, torn, cancelled, or
obliterated by some other person,
without the express direction of the
testator
the will may still be established, and
the estate distributed in accordance
therewith, provided.







SUCCESSION (BALANE) CHAMP 2004
Notes - 21 -
What are the provisos?
ART 830: If its
a. contents,
b. due execution, and
c. the fact of its unauthorized
destruction, cancellation or
obliteration
are established according to the Rules of
Court.


So the physically destroyed will may still be
probated?
Yes. But Art 830 refers only to an attested
will.

LOST OR
UNAUTHORIZED
DESTRUCTION
ATTESTED WILL
LOST OR
UNAUTHORIZED
DESTRUCTION
HOLOGRAPHIC WILL
May still be established
by secondary evidence
according to the Rules of
Court
GR: May no longer be
probated
[GAN VS. YAP]

Except: Unless a copy
survives [RODELAS VS.
ARANZA]


What is another important requisite for revocation
for all kinds?
The testator must have capacity to revoke.
This is the same as the testamentary
capacity.


Estate of Maloto vs. CA
It is clear that the physical destruction of a
will, like burning in this case, does not per se
constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the
physical destruction be done by the testator himself.
It may be performed by another person but under
the express direction and in the presence of the
testator.
In this case, the animus revocandi, or
intention to revoke is only one of the necessary
elements for the effective revocation of wills. The
intention to revoke must be accompanied by the
overt physical act of burning, tearing, obliterating, or
canceling the will.
It was not sufficiently established that the
papers burned by the maid was the a will of the
deceased. Even so, the burning was not proven to be
done under the express direction of the testator and
not in her presence.


Is there a presumption of revocation?
Yes. In the case of [GAGO VS. MAMUYAC]

Gago vs. Mamuyac
The law does not require any evidence of
the revocation or cancellation to be preserved. It
therefore becomes difficult at times to prove the
revocation and cancellation of wills. The fact that
such cancellation or revocation has taken place must
be inferred from evidence showing that after due
search, the original will cannot be found.
Where a will which cannot be found is
shown to have been in the possession of the
testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same
was cancelled or destroyed. The same presumption
arises where it is shown that the testator had ready
access to the will and it cannot be found after his
death.
Note that the force of the presumption of
cancellation or revocation is not conclusive, it may
be overcome by proof that the will was NOT
destroyed or revoked by the testator with the
requisite intention.


ART 831.
ART 832.
REVOCATION BY SUBSEQUENT WILLS

Subsequent will which do not revoke the
previous ones in an express manner
annul only such dispositions in the prior
wills as a inconsistent with or contrary to
those contained in the later wills.

Again, how may revocation be done by subsequent
will?
It must contain either an express revocatory
clause, or an implied one through
incompatibility.
The execution of a subsequent will does not
ipso facto revoke a prior one!

ART 832: A Revocation made in a subsequent
will shall take effect, even if the new will
should become inoperative by reason of the
incapacity of the heirs, devisees, or legatees
designated therein, or by their renunciation.

So what is the effect of revocation by subsequent
will?
The first will remains revoked.
Revocation is an absolute provision.
It is independent of the acceptance or
capacity of the new heirs.
The efficacy of the revocatory clause does not
depend on the testamentary dispositions of
the revoking willl, unless the testator so
provides.

GR: The first is forever revoked.
Except: When the testator provides in the
subsequent will that the revocation of the prior one
is dependent on the capacity or acceptance of the
H,D,L instituted in the subsequent will first will is
not necessarily revoked.

This exception is called "dependent relative
revocation or "conditional revocation.


- 22
What Is this Dependent Relative Revocation? [MOLO
VS. MOLO]
The failure of the new testamentary
disposition, upon whose validity the
revocation depends, is equivalent to the non-
fulfillment of a suspensive condition, and
hence, prevents the revocation of the original
will.
The revocation of the first will is considered
conditional and dependent upon the efficacy
of the new disposition. If for any reason the
new will intended to be made as a substitute
becomes inoperative, the revocation fails, and
the original will remains in full force.

What is essential for the applicability of DRR?
It applies only if the testator intended his act
of revocation to be conditioned on the making
of a new will or on its validity or efficacy.


Is DRR applicable in cases of revocation by physical
destruction?
In [MOLO], the Court held in obiter, that the
physical destruction of the will did revoke it
(meaning first will subsists), on the inference
drawn by the Court that the testator meant
the revocation to depend on the validity of a
new one.


Diaz vs. De Leon
The testator, shortly after the execution of
the first will in question, asked that the same be
returned to him. The instrument was returned to the
testator who ordered his servant to tear the
document.
The intention of revoking the will is manifest
from the fact that the testator was anxious to
withdraw or change the provisions he had made in
his first will. The original will herein presented for
probate has been destroyed with animus revocandi.


Balane: In order to revoke the first will, the second
or subsequent will must be valid and probated. A
revoking will must be probated.


ART 833.

A revocation of a will based on a false cause or
illegal cause is null and void.

Are wills revocable?
Yes. Wills are revocable ad nutum, at the
pleasure of the testator.

Must the testator have reason for revoking?
General rule: No. He need not have a reason
or cause for revoking.

What is the exception? Are all causes valid reasons
for revocation? NO.
When the there is a false or illegal cause
the revocation is not given effect / the
revocation is null and void the first will
subsists.

What are the requisites for the nullification of the
revocation?
a) the cause must be concrete, factual, and not
purely subjective
[this means that to have a valid revocation,
the cause must be totally subjective (blind and
irrational prejudice ok!)
b) the cause must be false
c) the testator must not know of its falsity
d) it must appear from the will that the testator is
revoking because of the false cause.
e) The illegal cause must be stated in the will as
the cause of the revocation.


How about revocation by physical destruction?
If the revoked will is holographic, and the
revocation is invalid, and hence preserving
the first will), probate of the first will will still
not be possible [GAN VS. YAP], unless a copy
survives [RODELAS VS. ARANZA].


ART 834.

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

The part of the will wherein the testator
acknowledges an illegitimate child is non-
revocable. Recognition is an irrevocable act.
Even if the will is revoked, such recognition
remains effective.


ART 835.
ART 836.
REPUBLICATION AND REVIVAL OF WILLS


ART 835: The testator cannot republish,
without reproducing in a subsequent
will,
the dispositions contained in a
previous one
which is void as to its form.

ART 836: The execution of a codicil referring to
a previous will
has the effect of republishing the will
as modified by the codicil


What is republishing?
To give efficacy to a will previously voided.

What is void as to form?
Those that do not comply with [804-808],
[810-814], [818-819]



SUCCESSION (BALANE) CHAMP 2004
Notes - 23 -
What must the testator do to republish a will void as
to its form?
Just execute a new will, and reproduce or
copy out the dispositions of the original will.
Mere reference to that (void) will will not do.

How about void as to other causes or defects?
Other causes for voiding a will (other than for
form:
1. void for non-formal defect
2. void for being previously revoked

So what must the testator do to republish a will void
for non-formal defect, or previously revoked will?
The testator should execute a new will or
codicil, referring to the previous will.
There is no need to reproduce or copy out the
provisions of the prior void will.

ART 835 ART 836
Void as to Form Void as to:
1. non-formal defect
2. previously revoked
How to Republish
execute new will
copy out the
provisions from
original void will
How to Republish
execute new will
or codicil
simply make
references to the
original void will
Reference to original
insufficient
Reference to original
sufficient


ART 837.

If after making a will
testator makes a second will expressly
revoking the first,
the revocation of the second
does not revive the first will.
(Such first will) can be revived only by another
will or codicil.

Will 1 Will 2 Will 3

The revocation of Will 2 will not revive Will 1.

What is the reason for non-revival of Will1?
Theory of Instant Revocation.
The revocatory effect of Will 2 is immediate.
But such theory is inconsistent with the
principle that wills take effect only upon
death.
Balane: This is a funny provision!

Whats funny about it?
Because in order for the revocation of Will 1
to be effective, the second will must be
probated. But Will 2 has already been
revoked by Will 3.
It suggests that revoked wills (Will 2) are still
submitted for probate.



champ.reyno 2004
Does this provision apply to all kinds of revocation of
Will 2?
No. This provision applies only if the
revocation of Will 1 by Will 2 is express
(express revocation).
If the Will 1 is revoked by Will 2 only
impliedly the revocation of the Will 2 by
Will 3 revives Will 1, unless Will 3 itself is
inconsistent or incompatible with Will 1.


WILL 1 REVOKED BY
WILL 2 - EXPRESSLY
WILL 1 REVOKED BY
WILL 2 - IMPLIEDLY
Art 837 will apply. Art 837 will not apply.
Effect:
The Will 3 revoking Will
2 will NOT revive Will 1.
Effect:
GR: The Will 3 revoking
Will 2 revives Will 1.

Except: Will 3 itself is
inconsistent with Will 1.

Another Except: When
Will 2 is holographic and
it is revoked by physical
destruction, probate is
no longer possible,
unless a copy survives.



ART 838.
ALLOWANCE AND DISALLOWANCE OF WILLS

No will shall pass either real or personal
property unless:
It is proved and allowed in accordance
with the Rules of Court.

The testator himself may, during his lifetime
Petition the court having jurisdiction for
the allowance of his will.
In such case, the pertinent provisions of the
Rules of Court for the allowance of wills afer
the testator's death shall govern.

The Supreme Court shall formulate
Such additional Rules of Court as may be
necessary for the allowance of wills on
petition of the testator. (ante mortem
probate)

Subject to the right of appeal,
The allowance of will, either
a) during the lifetime of the testator, or
b) after his death,
shall be conclusive as to its due
execution.


What is probate?
It is a judicial proceed where the will is
"tested for its compliance with the formal
validity of wills.
It is the first part of 2 stages in a settlement
proceeding.

- 24
1. probate of will - extrinsic validity
2. settlement proper - intrinsic validity
The probate of wills is mandatory. [GUEVARA
VS. GUEVARA]


What are the kinds of probate?
1) post-mortem - after the testators death
2) ante-mortem - during the testators lifetime
Advantages of ante-mortem probate:
easier for the court to determine the
mental condition of the testator (since he
is still alive)
fraud, intimidation, and undue influence
are minimized.
Lessens the number of contests upon wills


Guevera vs. Guevera
If the decedent left a will and no debts and
the HDL desire to make an extrajudicial partition of
the estate, they must first present the will to the
court for probate. They may not disregard the
provisions of the will unless they are contrary to law.
The suppression of wills is contrary to law
and public policy, because unless the will is probated
and notice thereof is given to the whole world, the
right of a person to dispose of his property by will
may be rendered nugatory. Absentee devisees and
legatees could be cheated of their inheritance thru
the collusion of some of the heirs who might agree to
the partition of the estate among themselves to the
exclusion of others.
The probate of a will is a proceeding in rem,
and cannot be dispensed with and substituted by any
other proceeding, judicial or extrajudicial, without
offending public policy.
No intestacy. Probate of will mandatory.


What is a decree of probate?
A declaration of the court that the will in
question conforms to requirements for formal
validity.

What is the effect of a decree of probate?
It is conclusive of its due execution.
It is res judicata. [DE LA CERNA VS. POTOT]


De La Cerna vs. Potot
The final decree of probate has conclusive
effect as to his last will and testament, despite the
fact that even then the Civil Code already decreed
the invalidity of joint wills.
The lower court committed error in allowing
the joint will but having given a final judgment on
the probate, the same is binding upon the whole
world. It does not affect the conclusiveness of its
final decision, however erroneous.
The courts have spoken with finality when
the will was probated.


Is there an exception to this rule of finality of
probate decree?
Yes. In case of ante-mortem probates, since
the testator is still alive, the testator may still
revoke the will, even if such will had already
been probated and even if such was
considered already res judicata.
Also, see [GALLANOSA VS. ARCANGEL]


Anyway, so what is the scope of the final decree of
probate? What are the matters rendered final,
conclusive and res judicata?
Only the due execution of the will
Only the extrinsic or formal validity
[GALLANOSA VS. ARCANGEL]
Or you can also refer to Art 839.


Gallanosa vs. Arcangel (relate to Art 839)
The decree of probate is conclusive as to
the due execution or formal validity of the will.
That means that:
1. Testator: of sound and disposing mind
at the time when he executed the will
and

2. Testator: not acting under duress,
menace, fraud, or undue influence.

3. Will: signed by him in the presence of
the required number of witnesses

4. Will: is genuine and not a forgery.

These facts cannot be questioned again in a
subsequent proceeding. After the finality of the
allowance of will, the issue as to the voluntariness of
its execution cannot be raised anymore. It was
rendered in a proceeding in rem and binding upon
the whole world.

*always refer to Formality Requirements
Attested
Reqmts
Holographic
Reqmts
Misc. Reqmts
(joint wills)
Art 804-808 Art 804,
Art 810-814
Art 818-819

General Rule for probate of wills.
A decree of probate therefore, does not
concern itself with the question of intrinsic
validity.
The probate court should not pass upon such
issue in the first stage. There is a proper time
for that the settlement proper stage.

Exception:
If it appears on the face of the will that it is
intrinsically void, the probate of the will might
be an idle ceremony!
The substantive validity may be passed upon
on the first stage if patent on the face of the
will that the same is void.
Practical considerations demand that the
intrinsic validity of the will be passed upon
even before probate. [NEPOMUCENO VS. CA]


SUCCESSION (BALANE) CHAMP 2004
Notes - 25 -
Nepomuceno vs. CA
The will itself expressly admits indubitably
on its fact the meretricious relationship between the
testator and the petitioner. Hence, the admission of
the testator of the illicit relationship between him
and the petitioner puts in issue the legality of the
devise.

GR: In probate proceedings, the courts area of
inquiry is limited to the examination and resolution
of the extrinsic validity of the Will.
Except: In view of certain unusual provisions in the
will, which are of dubious legality, the court may
pass upon the wills intrinsic validity even before its
formal validity has been established.


ART 839.
GROUNDS FOR DISALLOWANCE OF WILLS.
(AKA. SCOPE OF FORMAL VALIDITY).

The will shall be disallowed in any of the
following causes:
1. The formalities required by law
have not been complied with.

2. The testator was
insane, or
otherwise mentally incapable of
making a will,
at the time of its execution

3. The will was executed through
Force
Under duress
Influence of fear
Threats

4. The will was procured by
Undue and improper
Pressure and influence
on the part of the beneficiary or some
other person

5. The signature of the testator was
procured by fraud.

6. The testator
Acted by mistake, or
Did not intend that the instrument he
signed should be his will at the time
of affixing his signature thereto.


Are the grounds for disallowance of wills exclusive?
Yes.


What is the effect if these grounds are present?
It sets aside as void the will.
A will is either valid or void only. There is no
such thing as voidable will. (Even if consent is
vitiated, still void).


champ.reyno 2004
ART 840.
INSTITUTION OF HEIRS, DEVISEES, LEGATEES

Institution of heir, (devisee, or legatee), is an act,
By virtue of which a testator designates
in his will
The person or persons who are to
succeed him
In his property and transmissible rights
and obligations.


ART 841.

A will shall be valid even though:
a. it does not contain an institution of an
heir, or
b. such institution does not comprise the
estate, or
c. even though the person so instituted
should not accept the inheritance or
should be incapacitated to succeed.

In such cases,
the testamentary dispositions made in
accordance with law shall be complied
with, and
the remainder of the estate shall pass to
the legal heirs.


ART 842.

One who has NO
compulsory heirs
One who has
compulsory heirs
may dispose by
will
all his estate or
any part of it
in favor of any
person having
capacity to
succeed
may dispose of his
estate
provided, he does
not contravene
the provisions of
this Code with
regard to the
legitime of said
heirs.
In short, MAY
DISPOSE OF THE
ENTIRE
HEREDITARY
ESTATE
In short, MAY
DISPOSE ONLY THE
DISPOSABLE
PORTION
(HEREDITARY
ESTATE LESS
LEGITIMES)
Note: In either case,
If he still disposes only less than what he is entitled
to, the remainder passes by intestacy or intestate
succession.
But Legitimes still pass by strict operation of law.


ART 843.
ART 844.
MANNER OF DESIGNATE THE HEIR, DEVISEE OR
LEGATEE




- 26
How must the testator designate the HDL ?
ART 843: The testator shall designate the
heir by his name and surname.
When there are two persons having the
same names, he shall indicate some
circumstances by which the instituted
heir may be known.


What is the sense of this article?
The HDL must be identified in the will with
sufficient clarity to leave no doubt as to the
testators intention.
The basic rule in testamentary succession is
respect for and compliance with the testators
wishes.


Must the full name and surname of the HDL
completely identified? What is the effect of
incomplete name?
No. the designation of the name and surname
is merely directory.
ART 843: Even though the testator may
have omitted the name of the heir,
should he designate him in such manner
that there can be no doubt as to who has
been instituted, the institution shall be
valid.
The underlying principle is that the identity of
the designated successor (HDL) be sufficiently
identified.
Ex. "my Kuya Germs, "Dean Bernas of
Ateneo, "my youngest daughter


What if the designation is still ambiguous?
The ambiguity should be resolved using Art
789.


What if after Art 789, the designation remains
ambiguous?
If it is not possible to resolve the ambiguity,
the testators intent becomes indeterminable,
and therefore intestacy results for that
portion.
In short, neither of them will be an heir, and
intestacy will result.


ART 845.

Every disposition in favor of an unknown
person
Shall be void.

Unless by some event or circumstances,
his identity becomes certain.

However, a disposition in favor of a definite
class or group of persons
shall be valid.




UNKNOWN PERSON DEFINITE CLASS OR
GROUP OF PERSONS
- a successor whose
identity cannot
reasonably be
determined because the
designation in the will is
so clear or so ambiguous
as to be incapable of
resolution
-
Ex. "I designate of my
estate to novel writer.
Ex. I designate of my
estate to all the
members of the
graduating class of 2010.
VOID. VALID.

What does "unknown mean?
It means someone whose identity cannot be
reasonably established.
It does NOT mean a stranger you can still
make dispositions in favor of persons with
whom you are not acquainted with, provided
his identity is clear.
Ex. I designate of my estate to whoever
will top the 2010 bar exams.


ART 846.

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


What is the effect of collective designation of heirs?
The heirs inherit in equal parts.
The general presumption in cases of collective
designation is equality.
If the testator intends an unequal
apportionment, he should so specify.

Note:
This article applies only in testamentary
succession among heirs, devisees and
legatees
Of course, one who is both a compulsory and
testamentary heir will receive more than
someone who is just a testamentary heir,
because of the legitime.


ART 847.

When the testator institutes some heirs
individually and others collectively,
"as when he says, I designate as my
heirs A and B, and the children of C"

those collectively designated shall be
considered as individually instituted,

unless it clearly appears that the intention of
the testator was otherwise.


SUCCESSION (BALANE) CHAMP 2004
Notes - 27 -
Explain the Principle of Equality and Individuality of
Designation.
GR: Following the rule of equality in 846,
there is also a presumption that heirs
collectively referred to are designated per
capita along with those separately
designated.
Except: If the testator intended a block
designation, he should so specify.


Ex. I institute A and B as my heirs, and all the
members of Class 3A.
The total will not be 3 because you will have
to count all the members of class 3A.


ART 848.

If the testator should institute his brothers and
sisters
And he has some of full blood and others
of half blood,

The inheritance shall be distributed equally
unless a different intention appears.


Note
This article also follows the rule of equality in
846.
If the testator intends an unequal
apportionment, he should so specify.

Is this article absolute?
NO. This article applies only to testamentary
succession, NOT to intestate or legal
succession.
In intestacy, there is a proportion of 2:1
between full and half blood brothers and
sisters.

TESTAMENTARY
SUCCESSION
INTESTATE OR LEGAL
SUCCESSION
- equality of shares of
full and half blood
brothers and sisters
- proportion of 2:1
between full and half
blood brothers and
sisters (Art 1006)

Does 848 apply to illegitimate brothers and sisters?
Apparently yes. There is no distinction made.


ART 849.

When the testator calls to the succession a
person and his children,

they are all deemed to have been instituted
simultaneously and not successively.

This also illustrates the principle of equality
and individuality (per capita).



ART 850.

The statement of a false cause
For the institution of an heir
shall be considered as not written,

Unless it appears from the will that the testator
would not have made such designation if he
had known the falsity of such cause.


What is the effect of a false cause for the
testamentary institution?
GR: The falsity of the stated clause does not
affect the validity or efficacy of the institution.
The false cause is considered as not written.
(meaning the institution remains valid)
Reason: Testamentary dispositions are acts of
liberality.

What is the exception? When may a false cause
annul the testamentary institution?
If certain factors are present [AUSTRIA VS.
REYES]


Austria vs. Reyes
Before the institution of heirs may be
annulled, the following requisites must concur:
1) the cause for the institution of heirs must be
stated in the will
2) the cause must be shown to be false
3) it must appear from the face of the will that
the testator would not have made such
institution had he known of the false cause.

Note:
This article refers only to false cause.
It does not restrict the annulment of certain
testamentary dispositions by reason of public
policy, because in such case the reason for
annulling is illegality and not falsity.



ART 851.

A. If the testator has instituted only one heir,
AND
B. The institution is limited to an aliquot part
of the inheritance

Legal succession takes place with respect to
the remainder of the estate.

The same rule applies if,

A. The testator has instituted several heirs
B. Each being limited to an aliquot part, AND
C. All parts do not cover the whole inheritance






- 28
Summary
Testator instituted only 1
heir
Testator instituted more
than 1 heir
Institution limited to
aliquot part
Each institution limited
to aliquot part
Sum of parts is less than
entire inheritance
What happens to the remainder of the estate?
Legal succession takes place with respect to
the remainder of the disposable portion, and
not the remainder of the estate (erroneous
851).


ART 852.
ART 853.

1. If it was the intention of the testator that
the instituted heirs should become the sole
heirs of the whole estate or the whole free
portion, as the case may be, AND
2. Each of them has been instituted to an
aliquot part of the inheritance, AND
3. Their aliquot parts together do no cover the
whole inheritance or the whole free
portion,

Each part shall be increased proportionally.


1. If each of the instituted heirs has been
given an aliquot part of the inheritance,
AND
2. The parts together exceed the whole
inheritance, or the whole free portion, as
the case may be,

Each part shall be reduced proportionally.


ARTICLE 852 ARTICLE 853
Common Elements:
a. there are more than one instituted heir
b. the testator intended them to get the whole
estate or whole disposable portion
c. the testator has designated a definite or
aliquot portion for each heir.
The total of all the
portions is LESS than the
whole.
The total of all the
portions EXCEEDS the
whole.
Common Element:
In short, the testator obviously did not know
how to add fractions!
**note: the remainder of
portion cannot pass by
intestacy since the
testator clearly intended
to give the instituted
heirs the entire amount

Remedy:
Proportionate increase of
each share.
Remedy:
Proportional reduction of
each share.
*see book for examples.



ART 854.
PRETERITION

The preterition or omission of:
One
Some, or A) of the compulsory
All heirs in the direct line,

B) whether:
Living at the time of the execution of
the will, or
Born after the death of the testator,

shall annul the institution of heir;

But, the devises and legacies shall be valid in
so far as they are not officious.

If the omitted compulsory heirs should die
before the testator,
the institution shall be effectual,
Without prejudice to the right of
representation.l


What is preterition?
It is an omission.
[prae-ter] - beside, [ire] - to go = [to go
beside, to pass by]
Manresa: Preterition consists in the omission
of an heir in the will, either because he is
NOT NAMED ALTHOUGH NAMED
He is not
named in the
will.
He is neither:
a. instituted as an heir
b. expressly disinherited
c. assigned any part of
the estate
Thus: tacitly deprived of his right to legitime.

Castan: Preterition is the omission in the will
of any of the compulsory heirs without being
expressly disinherited.


What is the proper definition of preterition?
For there to be preterition, the compulsory
heir in question must have received
absolutely nothing from the testator either by
way of:
a) testamentary succession
b) legacy or devise
c) donation inter vivos
d) intestacy
Balane: It is not really an omission in the will.
The mention or non-mention is not
constitutive of preterition. Preterition must be
a total omission from the inheritance.


When is there preterition?
Only in case of testamentary succession!
You cannot have preterition in intestacy.



SUCCESSION (BALANE) CHAMP 2004
Notes - 29 -
How do you distinguish disinheritance from
preterition?
DISINHERITANCE PRETERITION
Express deprivation Tacit deprivation


When is there NO preterition?
1. If the heir instituted in the will receives a portion
less than his legitime. (Remedy: completion of
legitime)

2. If the heir is given a legacy or devise. (Remedy:
completion of legitime)

3. If the heir had earlier received a donation inter
vivos from the testator. (Donation inter vivos
are treated as an advance on legitimes.)

4. If not all of the estate is disposed of by the will,
and the heir is still not mentioned in the will, nor
earlier been a recipient of a donation inter vivos.
(The omitted heir would still receive something
by way of intestacy, from the vacant or
remaining portion, undisposed by the will).
(Remedy: completion of legitime).


Reyes vs. Baretto
The fact that Milagros was allotted in her
fathers will a share small than her legitime does not
invalidate the institution of Salud as heir, since there
was no preterition, or total omission for a forced
heir.
There is no pretertion where there is no
total omission, inasmuch as the heir received
something from the inheritance.
The heirs remedy is not for the annulment
of the other instituted heir (854), but for the
completion of legitime in 906-907.


Aznar vs. Duncan
Any compulsory heir to whom the testator
has left by any title less than the legitime belonging
to him (as in devise or legacy), may demand that the
same be fully satisfied.
In this case, the testator expressly denied
his relationship with Helen, but still left her a legacy
nevertheless, although less than the amount of her
legitime. The testator refused to acknowledge Helen
as his natural daughter and just gave her a share to
a legacy.
The heir could not ask that the institution of
heirs be annulled entirely when a he was left a
legacy worth less than the legitime, and even if said
legatee is not referred to as an heir or even a
relative. Should the value of the legacy or devise be
less than the recipients claimed legitime, her
remedy is only for the completion of legitime.


Who are these compulsory heirs referred to?
Who may be preterited?
Who may claim the annulment of institution of heirs?
Under the Art 854, one, some or all of the
compulsory heirs in the direct line.
This means, children or descendants, and
parents or ascendants.
Illegitimate descendants and ascendants are
also protected according to Manresa. (Since
there is no distinction as to legitimacy).
Adopted children are also included and may
claim preterition. [ACAIN VS. IAC]
The Art excludes the surviving spouse
although she is also a compulsory heir, she is
not in the direct line and therefore cannot
claim to be preterited.

Balane: This is a bad provision. It omits the
spouse from the protection or remedy under Art
854. The protection must be extended to all
compulsory heirs!


What happens in case the preterited compulsory
heirs pre-deceases the testator?
ART 854: If the omitted compulsory heir
should die before the testator, the
institution shall be effectual, without
prejudice to the right of representation.
The question of preterition becomes moot.
The institution of other heirs remains valid.
If the omitted compulsory heir had heirs of
his own, such heir may himself be entitled to
succeed by virtue of representation, unless
such heir is also himself completely
preterited. (See more on rules of
representation).


Acain vs. IAC
Preterition consists in the omission in the
testators will of the forced heirs either because
they are not mentioned therein, or although
mentioned, they are neither instituted as heirs nor
are expressly disinherited [NUGUID VS. NUGUID].
Even if a surviving spouse (widow) is a
compulsory heir, there is no preterition even if she
is omitted from the inheritance, for she is not in
the direct line.
However, an adopted daughter was totally
omitted and preterited in the will.
An adopted child is included in the
"compulsory heir in the direct line. If totally
omitted in the inheritance, is preterited.

Balane: [ACAIN]s logic is the soul of simplicity:
since an adopted child is given by law the same
rights as a legitimate child, vis--vis the adopter,
then the adopted child can invoke Art 854 in the
same manner that a legitimate child can.


What is the effect of preterition? What does the
remedy of preterition do?
Preterition annuls the institution of an heir
and throws open the entire inheritance to
intestate succession. The only provisions
that do not result in intestacy are the
legacies and devises made in the will, for
they should stand valid and respected,
- 30
except in so far as the legitimes are
concerned.
It results in the total abrogation of the will,
or the nullification of the institution of
heirs.
If there are no other testamentary
dispositions like legacies or devises, it
amounts to a declaration that nothing at all
was written.
The effect of annulling the institution of
heirs will be the opening of intestacy,
except that proper legacies and devises
must be respected.
[ACAIN VS. IAC] [NUGUID VS. NUGUID]

Does preterition result to intestacy?
NO. It does not automatically result in
intestacy because IF there are devises and
legacies, they are considered valid, insofar as
they do not impair the legitimes.


Nuguid vs. Nuguid**spa.
Here, a one-sentence will institutes the
petitioner (sister) as the sole heir, nothing more. No
specific legacies or bequests were provided. The
omission of the parents as forced heirs in the direct
line results in preterition. And the nullity of the
institution is complete.
Legacies and devises merit consideration
only when they are so expressly given as such in a
will, in so far as they are not inofficious.

The will here does not expressly disinherit
the parents, the forced heirs. It simply omitted their
names. Such is preterition rather than an ineffective
disinheritance.
We repeat, the preterition shall annul the
institution of heir. This annulment is in toto, unless
in the will there are additional testamentary
dispositions in the form of devises and legacies.

DISINHERITANCE PRETERITION
A testamentary provision
depriving any
compulsory heir of his
share in the legitime for
a cause authorized by
law.
Balane: total omission
from the inheritance,
without the heir being
expressly disinherited
The nullity is limited to
that portion of the estate
of which the disinherited
heir has been illegally
deprived.
A Complete nullity of the
institution of heir.
(except DL).
Always voluntary,
explicit on the part of the
testator.
Presumed to be
involuntary; based on
inadvertent omission by
the testator
He is still not bypassed
since the heir is simply
entitled to demand his
rightful share.
He is bypassed, and the
remedy is the annulment
of institution of heirs.
(entire will, except DL).


champ.reyno 2004

Recap:
Preterition abrogates the institution of heir but
respects the legacies and devises insofar as these do
not impair the legitimes.

Preterition annuls the institution of an heir and
annulment throws open to intestate succession the
entire inheritance including the free portion. The only
provisions that do no result in intestacy are the
legacies and devises made in the will for they should
stand valid and respected, except insofar as the
legitimes are concerned.
[ACAIN VS. IAC] [NUGUID VS. NUGUID]

The DL are subordinate to the legitimes. The DL
must not eat up the shares or legitimes of
compulsory heirs of estate.

2 Situations:

1. If the will contains only institutions of heirs and
there is preterition, total intestacy will result.

2. If there are legacies and devises and there is
preterition, the legacies and devises will stand,
to the extent of the free portion. The DL will
be reduced and not set aside if the legitimes are
impaired. The institution of heirs will be swept
away.


ART 855.

The share of a child or descendant, omitted in a
will

must first be taken from:
a) the part of the estate not disposed of by
the will, if any,
and if that is not sufficient,
b) so much as may be necessary must be
taken proportionally from the shares of the
other compulsory heirs.

Balane:
this article is redundant and completely
unnecessary. 854 is already complete in itself
to provide for the effects of preterition.

Tolentino:
this article is absurd if we follow it. Do not
follow it.

So when should this article apply?
This article should NOT apply to preterition.
It should apply in cases where the heir
receives something less than his legitime.

This is the Superfluity of the Article - it does not
apply to preterition but to completion of legitime.
There are other rules for completion under Art 906-
911.




SUCCESSION (BALANE) CHAMP 2004
Notes - 31 -
ARTICLE 854 ARTICLE 855
Preterition No Preterition, as when
the heir receives
something less than his
legitime

In short, Impairment of
Legitime
Remedy:
Annulment of Institution
Remedy:
Completion of Legitime


When does Art 855 operate?
In case of inofficious disposition by the
testator in the will.
When the testamentary heirs, devisees and
legatees get more than the free portion.


How does Art 855 operate? How do you fill up the
compulsory heirs impaired legitime?
1. First, from the portion of the estate still left
undisposed of by will.
2. Second, from the shares of the testamentary
heirs, legatees and devisees.


Who are entitled to full satisfaction of legitimes?
Not only the children and descendants (as
inaccurately expressed in the article) but the
protection must extend to all compulsory
heirs:
a) children and descendants
b) parents and ascendants
c) surviving spouse.

From whom are their shares to be taken for
completion?
The proportionate reduction should be borne
by the testamentary heirs, legatees and
devisees, (not the compulsory heirs as
inaccurately expressed in the article).
To make the compulsory heirs suffer for the
completion of legitimes is the case of "robbing
Peter to pay Paul.
It is the testamentary dispositions that must
be reduced if they impair or diminish the
legitimes of the compulsory heir.
In fact, the testamentary heirs are subject to
reduction even up to ZERO!!


ART 856.

A voluntary (or testamentary) heir who dies
before the testator
transmits nothing to his heirs.

a) A compulsory heir who dies before
the testator,
b) A person incapacitated to succeed,
and,
c) One who renounces the inheritance,
shall transmit no right to his own heirs,
except in cases provided for in this Code.


Note:
This is another inaccurate provision.
Both a voluntary and compulsory heir, who
dies before the testator transmit nothing to
his own heirs
This rule of non-transmission is absolute.

What about representation?
There may be representation by the heirs of
said decedent heir, but representation is still
not a transmission.
Representation in the person does not
transmit anything to the heirs. Rather,
representation is a form of subrogation or "to
take the place.

Outline of Rules:

In all cases, NOTHING IS TRANSMITTED TO HIS
OWN HEIRS
COMPULSORY
HEIR
VOLUNTARY
HEIR
LEGAL
HEIR
(compulsory
succession)
(testamentary
succession)
(intestate
succession)
1. Predecease:
Representation
1. Predecease:
No
Representation

1. Predecease:
Representation
2. Incapacity:
Representation
2. Incapacity:
No
Representation

2. Incapacity:
Representation
3. Renunciation:
No
Representation
3.Renunciation:
No
Representation

3.Renunciation:
No
Representation
4. Disinheritanc
e
Representation
4.Disinheritanc
e
N/A
4.Disinheritanc
e
N/A


midterms champ.reyno 2004






















- 32
SUBSTITUTION OF HEIRS (DEVISEES, AND
LEGATEES)


ART 857.

What is substitution?
ART 857: Substitution is the appointment
of an heir,
so that he may enter into the
inheritance in default of the heir
originally instituted.


Is this definition complete?
No. Because it covers only simple substitution
and excludes the fideicommisary.
The complete definition should be:
Substitution is the appointment of another
heir so that he may enter into the inheritance
in default of, or subsequent to, the heir
originally instituted.


When is there substitution?
Substitution operates only in testamentary
succession! (thus it covers not only heirs, but
also legatees and devisees).


What are the 2 kinds of substitution?
SIMPLE (VULGAR) FIDEICOMMISSARY
(FIDEICOMISARIA)
Basis:
The right to provide for
substitutions is based on
testamentary freedom.

In simple substitution,
the basis is the freedom
of the testator to make a
second choice or
replacement
Basis:
The right to provide for
substitution is based on
testamentary freedom,

In fideicommissary, the
basis is the testators
freedom to impose a
burden on the first heir!
What is it?
The testator simply
makes a second choice,
in case the first choice
does not inherit. (in
default of the first)
What is it?
The testator imposes
what is essentially a
restriction or burden on
the first heir, coupled
with a selection of a
subsequent recipient of
the property.


ART 858.

Substitution of heirs may be:
1. simple or common (vulgar)
2. brief or compendious (breviloca
compendiosa)
3. reciprocal (reciproca)
4. fideicommissary (fidecomisaria)


What are the two kinds of substitution?
Simple and fideicommissary.

What are the modes, or modalities (variations) for
each kind?
Brief or compendious and reciprocal.


ART 859.

The testator may designate one or more
persons
To substitute the heir or heirs instituted
in case such heir or heirs:
1. should die before him,
2. should not wish, or
3. should be incapacitated, to accept the
inheritance.

A simple substitution, without a statement of
the cases to which it refers,
shall comprise the 3 mentioned, unless the
testator has otherwise provided.


What are the causes for simple substitution (vulgar)?
When is a first (original) heir said to be in default?
1. predecease of the first heir
2. renunciation of the first heir
3. incapacity of the first heir


How does the testator provide for simple (vulgar)
substitution?
a. by specifying all the three causes above
b. by merely providing, "simple substitution
c. he may also limit the operation of simple
substitution by not specifying all the 3
causes (just one or two) it becomes a
restricted simple substitution.


May the testator provide for substitution on other
grounds?
Yes. But strictly speaking, this will not be
called "substitution.
It would be called a conditional testamentary
disposition (see next chapter)
Nevertheless it would still be a valid
institution.


How many substitutions can be made by the
testator?
Only one substitution is allowed. The person
substituting cannot be substituted again.


ART 860.

Two or more persons may be substituted for
one (original heir) brief

Or, one person for two or more (original) heirs.
compendious




SUCCESSION (BALANE) CHAMP 2004
Notes - 33 -
BRIEF COMPENDIOUS
Two or more
substitutes for
one original
heir.
One substitute for two or more
original heirs.
Default of only
one original
heir*
Default of ALL
original heirs
Substitution
will NOT take
place! the
share left
vacant will
accrue to the
surviving co-
heir(s)
Substitution
will take place!
*But, as an exception: the
testator may provide for
substitution even if only one of
the original heirs is in default.


ART 861.

If heirs instituted in unequal shares should be
reciprocally substituted,
the substitute shall acquire the shares of the
heir who dies, renounces, or is incapacitated,

Unless, it clear appears that the intention of
the testator was otherwise.

If there are more than one substitute,
they shall have the same share in the
substitution as the institution.


What is reciprocal substitution?
It is when the heirs are made substitutes of
one another!
As earlier said, it is merely a modality or
variation of the vulgar or fidecomisaria.
See book for examples.



ART 862.

The substitute shall be subject to the same
charges and conditions imposed upon the
instituted heir,

Unless:
a. the testator has expressly provided the
contrary, or
b. the charges or conditions are
personally applicable only to the heir
instituted.

In short, the substitute merely takes the place of the
original heir.





ART 863.

A fideicommissary substitution, by virtue of
which,
the fiduciary or first heir instituted is
entrusted with the obligation
to preserve, AND
to transmit
to a second heir, the whole or part of the
inheritance,
shall be valid and shall take effect,

Provided,
a. such substitution does not go beyond
one degree from the heir originally
instituted, and
b. that the fiduciary or first heir AND the
second heir are living at the time of the
death of the testator.


Again, fideicommissary is the second kind of
substitution.

What are the elements of fideicommissary?
1. the first heir - who takes the property upon the
testators death
the fiduciary enters upon the inheritance
when the testator dies

2. the second heir - who takes the property after
or subsequently from the fiduciary
but the fideicommissary heir already has a
vested right at the time of the testator
death, and his right is merely subject to a
period.
This is true even if the fideicommissary does
not receive the property yet. Both heirs
enter into the inheritance one after the
other, each in his own turn or sequence.
Thus, he has a vested expectancy.
Even if he dies before the end of the
fiduciarys term, the right passes to the
heirs because he already has vested right
in it. (he need not be alive by then).

3. the second heir - must be one degree from the
first heir
only one transmission is allowed, i.e., from
the fiduciary to the fideicommissary heir.
One degree = second heir must be a parent
or child of the first heir [PALACIOS VS.
RAMIREZ]

4. the dual obligation imposed upon the fiduciary
to preserve the property, and to transmit it after
the lapse of the period, to the fideicommissary
heir.
This requisite is the essence of
fideicommissary. This is because the first
heir is merely fiduciary, and that of a
usufruct, having the right to use and
enjoy property, but without the right to
dispose of the same.
[PCIB vs. ESCOLIN]

- 34

5. Both heirs must be living AND qualified
(capacitated) to succeed at the time of the
testators death.
The only temporal criterion is the time of
the testators death.
Note: the testator need not survive the first
heir; if the second heir dies before the
first heir, the second heirs heirs merely
take his place. (866).


Palacios vs. Ramirez
The substitutes Jankowski and Ramirez
were not related to Wanda, the heir originally
instituted.

Tolentino says that "one degree from the
first heir is, adopting the view of Manresa and
Sanchez Roman, construed as generation. The code
thus clearly indicates that the second heir must be
related to and be one generation from the first heir.
It follows that the fideicommissary can only be either
a child or parent of the first heir. These are the only
relatives who are one generation or degree from the
fiduciary.

Balane: This is an unsatisfactory decision! Justice
Abad Santos, my teacher in property law, merely
quoted Tolentino, without explaining why.

Scaevola and Traviesas: Degree should mean a
designation, or transmission, or transfer.


PCIB vs. Escolin
The substitution provided for by the Will is
not a fideicommissary substitution, because there is
clearly no obligation on the part of the husband, as
the first designated heir, to preserve the properties
for the substitute heirs. In fact, the husband had
absolute freedom to dispose of the properties.
The designation that should the husband
die, then the brothers and sisters of the testator
would receive whatever residue or properties are left
is not a fideicommissary substitution.

But, this does not render inoperative nor
invalid the dispositions in favor of the "substitute
heirs. The brothers and sisters are not substitutes of
the husband because under the will, they are not to
inherit what the husband cannot, would not, or may
not inherit. What they inherit is that which he the
husband would not dispose of.

This makes them heirs instituted
simultaneously with the husband (first heir), subject
only to certain conditions. It becomes a conditional
simultaneous substitution, partially resolutory as to
the husband, and suspensive as to the brothers and
sisters.

Here, the institution is deemed to be a
simultaneous institution, not a
fideicommissary.
It is still a valid institution.

What is the tenure or duration of the fiduciary (first
heir)?
First, the period indicated by the testator.
Second, if the testator did not indicate a
period, then the fiduciarys lifetime.


ART 864.

A fideicommissary substitution can never
burden the legitime.

The legitime passes by operation of law. The
testator has no power over it.


ART 865.

Every fideicommissary substitution must be
expressly made in order that it may be valid.

The fiduciary shall be obliged:
To deliver the inheritance to the second
heir
Without other deductions than:
a) those which arise from
legitimate expenses,
b) credits, and
c) improvements,
save in the case where the testator has
provided otherwise.


How do you make/ impose a fideicommissary
substitution?
There are 2 ways:
a. by express imposition - using the term
"fideicommissary
b. by imposing upon the first heir the absolute
obligation to preserve and to transmit to the
second heir.


How should the first heir transmit the property to the
second heir?
The fiduciary should deliver the property intact
and undiminished to the fideicommissary upon
the arrival of the period.
Generally, there should be no deductions.
Exceptions: those 3 mentioned above.


How about damage to or deterioration of property?
Fiduciary liable if and only if such was caused
by the fiduciary fault or negligence










SUCCESSION (BALANE) CHAMP 2004
Notes - 35 -
ART 866.

The second heir shall acquire the right to the
succession
from the time of the testator's death,

Even though he should die before the fiduciary.

The right of the second heir shall pass to his
heirs.


Should the second heir survive the testator?
YES. Otherwise there would be no substitution

Should the second heir survive the first heir?
No. As long as he survives the testator, (sure
na siya!) In case he dies, the second heirs
own heirs simply take his place.
The second heirs right vests upon the
testators death, only that his institution is one
subject to a suspensive term



ART 867.

The following shall NOT take effect:
1. Fiduciary substitutions
Which are not made in an express
manner:
either by giving them this name,
or
imposing upon the fiduciary the
absolute obligation to deliver the
property to the second heir.

If there is no dual obligation, then there is no
fideicommissary substitution.
But, the lack of this element does NOT, by that
fact alone, nullify the institution.
It only means that it is not a fideicommissary
substitution. It could be something else as in
PCIB vs. Escolin.


2. Provisions which contain perpetual
prohibition to alienate
Even a temporary one, beyond the limit
fixed in 863.

FIDEICOMMISSARY NON-FIDEICOMMISSARY
-limit is the first
heirs lifetime
-limit is 20 years.


3. Those which impose upon the heir
the charge of paying to various persons
successively (a certain income or pension),
beyond the limit prescribed in 863.

There can only be two beneficiaries of the
pension, one after the other, and the second
must be one degree from the first.
There is no prohibition on simultaneous
beneficiaries
4. Those which leave to a person
The whole or part of the hereditary
property,
In order that he may apply or invest
the same,
According to the secret instructions
communicated to him by the testator.

Here, the entire provision itself becomes void.
The obvious purpose of such surreptitious
disposition is to circumvent some prohibition
or disqualification.



ART. 868

The nullity of the fideicommissary substitution
does not prejudice the validity of the
institution of heirs first designated.

The fideicommissary clause shall simply be
considered as not written.


When is there a nullity of fideicommissary
substitution?
When it fails to comply with the 5 requisites in
Art 863.

What is the effect of such nullity?
The fideicommissary substitution becomes void
and ineffective.
The institution of the first heir simply becomes
pure and unqualified. It will not be annulled.



ART 869.

A provision whereby the testator leaves to a
person,
The whole or part of the inheritance,
AND
To another
The usufruct
shall be valid.

If he gives the usufruct to various persons,
Not simultaneously, but successively,
the provisions of 863 shall apply.


Are successive usufructuaries valid?
Yes. Provided, there can only be two (2)
usufructuaries, one after the other. Provided
further, the requisites in Art 863 must be
present.



ART 870.

The dispositions declaring all or part of the
estate inalienable for more than 20 years
shall be void.
- 36

FIDEICOMMISSARY /
SUBSTITUTIONS
NON-FIDEICOMMISSARY
/ INSTITUTION OF
HEIRS IN GENERAL
-limit is the first
heirs lifetime
-limit is 20 years.




CONDITIONAL TESTAMENTARY DISPOSTIONS
& TESTAMENTARY DISPOSITIONS WITH A
TERM


ART 871.

The institution of an heir may be made: (CMT)
a. Conditionally, (conditional) or
b. For a certain purpose or cause. (modal)
c. (dispositions with a term)


Can you recall the difference between conditions and
terms in oblicon?
TERM CONDITION
- uncertainity when it
will happen (but it will
happen)
- uncertainity if at all it
will happen
Similarity: demandability of obligations both
refer to future events.
Difference: certainity


Why are these 3 kinds of testamentary dispositions
allowed?
The right of the testator to impose conditions,
terms and modes springs from testamentary
freedom.



ART 872.

The testator cannot impose any charge,
condition, or substitution whatsoever upon the
legitimes prescribed in this Code.

Should he do so, the same shall be considered
as not imposed.


Legitimes must be pure, free, and
unencumbered.










champ.reyno 2004

DISPOSITIONS WITH A CONDITION
ART 873.

1. Impossible conditions, and
2. Those which are contrary to law or good
customs

shall be considered as not imposed, AND
shall in no manner, prejudice the heir, even
if the testator should provide otherwise.


What is the effect of an impossible or illegal
condition?
It is simply considered as not written.
The testamentary disposition itself is not
annulled and simply becomes pure.

Then what?
Then the property immediately goes to the
intended heirs.

Why is this rule different in oblicon?
OBLICON RULE SUCCESSION RULE
- annuls the obligation
itself
- condition simply
considered as not
written, but the
institution itself is still
valid.
In onerous obligations,
the condition imposed
becomes an integral part
of the causa of the
obligation. The
elimination of the
condition results in
failure of cause. No
cause = No obligation.
Testamentary
dispositions are in the
nature of gratuitous
obligations, based on the
testators liberality. This
liberality is the basis of
the grant.



ART 874.

An absolute condition
Not to contract a first or subsequent marriage
shall be considered as not written,

Unless: such condition has been imposed on
the widow or widower,
by the deceased spouse, or
by the latter's ascendants or descendants.

Nevertheless,
The right of usufruct, or
An allowance, or
Some personal prestation
may be devised, or bequeathed to any
person
for the time during which he or she should
remain unmarried or in widowhood.






SUCCESSION (BALANE) CHAMP 2004
Notes - 37 -
Can a condition prohibiting marriage be imposed?
Yes. But only for a subsequent marriage
imposed by the deceased spouse or by his
ascendants or descendants.

Prohibition on First
Marriage
VOID. Condition always
considered as not
imposed.
Reason: Art 873: It
contrary to law and good
customs.
Prohibition on
Subsequent Marriage
VALID - If imposed by:
a) the deceaseds
spouse, or
b) by his ascendants
or descendants

VOID - If imposed by
anyone else it is
considered as not
imposed.


How about the imposition of a condition to marry?
This is valid. The article refers only to
absolute prohibition.
The testator may still impose a condition to
marry either with reference to a particular
person or a class.
Ex. You should not marry a foreigner.
Ex. Do not marry Miss X.
Ex. Do not marry a lawyer.
Ex. You must marry a doctor.
These are Valid conditions because they are
only relative prohibitions.

How about a priest? Can you require him to marry?
Of course not.

Can the testator make a condition terminating a
testamentary benefaction should the heir contract a
marriage, even a first one? Ex. Granting a pension
while youre single only.
Yes.


ART 875.

Any disposition, made upon the condition that:
The heir shall make some provision in
HIS will in favor of the testator, or any
other person
shall be void.


What is a scriptura captatoria?
It is a legacy-hunting disposition.
It is void.

Why is it void?
a. because the captatoria converts
testamentary grants into contractual
transactions. (It makes it onerous).
b. It deprives the heir of testamentary
freedom.
c. It gives the testator the power to dispose
mortis causa not only of his property but
also of his heirs.


What is declared void?
The testamentary disposition itself, not just
the condition.
Therefore, it is deemed not imposed at all.



ART 876.

Any purely potestative condition imposed upon
an heir
must be fulfilled by him as soon as he learns
of the testator's death.
(Unless,) This rule shall not apply when:
The condition, already complied
with,
Cannot be fulfilled again.



ART 877.

IF the condition is casual or mixed,
it shall be sufficient if it happen, or be
fulfilled,
At any time, Before or After, the death of
the testator,
Unless, he has provided otherwise.

Should it have existed, OR
Should it have been fulfilled at the time the will
was executed,

AND the testator was unaware thereof,
it shall be deemed as complied with.

If he had knowledge thereof,
the condition shall be considered fulfilled
only when:
It is of such nature that it can no longer
exist, OR
Be complied with again.


ART 883, par. 2

If the person interested in the condition
should prevent its fulfillment
without the fault of the heir,
The condition shall be deemed to have
been complied with.


ART 879,

If the potestative condition imposed upon the
heir is:
a. negative, OR
b. consists in not doing or not giving
something,

- 38
he shall comply by:
1) giving a security that he will not do or
give that which has been prohibited by
the testator, AND
2) that in case of contravention, he will
return whatever he may have received,
together with its fruits and interests.

Kinds of Conditions
Potestative
Condition
Casual
Condition
Mixed Condition
One that
depends solely
on the will of
the HDL
Either:
Posit
ive
Nega
tive
One that
depends solely
on the will of a
3
rd
person or by
chance
One that
depends partly
on the will of
the HDL, and
partly on the
will of a 3
rd

person or by
chance.
See Below for more.



Potestative Conditions
Positive Potestative
(876)
Negative Potestative
(879)
GR: must be fulfilled as
soon as the heir learns of
the testators death
The HDL must decide
whether to fulfill it or
not.

Exceptions:
1) if the condition was
already complied
with at the time the
heir learns of the
testators death.
2) If the condition is of
such nature that it
cannot be fulfilled
again.

Note: A constructive
compliance is sufficient
condition deemed
fulfilled. (Art 883, p.2)
Heir must give a security
(caucion muciana) to
guarantee the return of
the value of the
property, fruits, and
interest, in case of
contravention.

Ex. prohibition to marry
under Art 874.


















Casual & Mixed Conditions
GR: may be fulfilled at any time (before or after the
testators death),
Unless the testator provides otherwise.

Exception:
If already fulfilled at the time of the execution of
the will
If testator NOT aware
of fact of fulfillment
If testator was aware of
fact of fulfillment
- deemed fulfilled If can
NOT be
fulfilled
again
If it can
be
fulfilled
again
Deemed
fulfilled
Must be
fulfilled
again.






What is the rule on constructive compliance?
Casual
Conditions
Mixed Conditions
Not
applicable
Dependent
partly on
chance
Dependent partly on will
of 3
rd
party
Not
applicable
If 3
rd

party not
interested
If 3
rd
party
interested
Not
applicable
Applicable



ART 880.

If the heir be instituted under a suspensive
conditions,
the estate shall be placed under
administration,
a. until the condition is fulfilled, OR
b. until it becomes certain that it cannot
be fulfilled, OR
c. until the arrival of the

The same shall be done,
d. if the heir does not give the security
required in the preceding article.


*Note: this article should not be applicable to
institutions with a term. Disregard any reference to
the term in this article.


What is to be done between the time of testators
death and the time of the fulfillment of the
suspensive condition?
The property must be placed under
administration.
The property shall be in the executors or
administrators custody until the heir furnishes a
caucion muciana.
SUCCESSION (BALANE) CHAMP 2004
Notes - 39 -

If condition happens If it becomes certain
that condition will NOT
happen
- the property will be
turned over to the
instituted heir
- the property will be
turned over to a
secondary heir (if
any), or the intestate
heirs.


Compare / Distinguish with institutions with a term:
INSTITUTION WITH A
(SUSPENSIVE)
CONDITION
INSTITUTION WITH A
(SUSPENSIVE) TERM
- property is placed
under administration in
the meantime (while
waiting), until the
condition happens or if it
becomes certain that the
condition will not happen
- property is given to the
legal heirs at once, even
before the arrival of the
term.



ART 881.

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


ART 884.

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



DISPOSITIONS WITH A TERM
ART 878.

A disposition with a suspensive term
does not prevent the instituted heir from
acquiring his rights, and transmitting them to
his heirs,

even before the arrival of the term.


When does the heirs right vest?
In dispositions with a term, the heirs right
vests upon the testators death


What happens if the heir dies before the arrival of
the suspensive term?
Its ok. He merely transmits his right to his
own heirs.
The heirs may thereafter demand the
property when the term arrives (because a
term is certain to happen).
This is the same rule in fideicommissary
substitutions (866).

Again distinguish this from suspensive conditions.
SUSPENSIVE
CONDITION
SUSPENSIVE TERM
- capacity to succeed is
determined:
a) at the time of death,
AND
b) at the time the
condition happens

* hence the heir must be
living and qualified to
succeed at both
instances
- capacity to succeed is
determined:
a) at the time of death
only.



ART 885.

The designation of the day or time,
when the effects of the institution of an
heir shall commence, or cease,
shall be valid.

In both cases, the legal heir, shall be
considered as called to the succession,
until the arrival of the period, or its
expiration.

But in the first case, he shall not enter into
possession of the property
until after having given sufficient security,
with the intervention of the instituted heir.


TERM
SUSPENSIVE (ex die)
(commence later)
RESOLUTORY (in diem)
(cease later)
Before the arrival of the
term,
property should be
delivered to INTESTATE
HEIRS (not to be placed
under adminstration!)

A caucion muciana is
required to be posted.
Before the arrival of the
term,
property should be
delivered to the
INSTITUTED HEIR.

No requirement for
caucion muciana.













- 40
DISPOSTIONS WITH MODES
ART 882.

The statement of:
1. The object of the institution, OR
2. The application of the property left by
the testator, OR
3. The charge imposed upon him (the heir)
shall NOT be considered as a condition,
Unless, it appears that such was his (testator)
intention.

That which has been left in this manner
may be claimed at once,
Provided that,
The instituted heir, or his heirs,
Give a security for compliance with the
wishes of the testator, and
For the return of anything he or they may
have received, (together with its fruits
and interests),
If he or they should disregard this
obligation.


What is a mode?
It is an obligation imposed upon the heir,
without suspending the effectivity of the
institution or the rights to the succession
[RABADILLA VS. CA]
Since it imposes an obligation upon the heir,
the heir may choose to renounce it if he does
not want to be burdened.


How can a mode be imposed?
It must be clearly imposed as an obligation in
order to be considered as one.
Mere preferences or wishes expressed by the
testator are not modes.
An obligation imposed upon the heir should
not be considered a condition unless it clearly
appears from the will itself that such was the
intention of the testator. In case of doubt, the
institution should be considered as modal and
not conditional. [RABADILLA VS. CA]

Why do we resolve in favor of a mode?
Because a mode is more conducive to the
efficacy of the will.


Is a caucion muciana required?
Yes. For modal institutions, a caucion
muciana is required.


What are the things imposed by the testator in a
modal institution? (indicators of a modal institution)
1) The object of the institution
2) The purpose or application of the property left
by the testator
3) The charge imposed by the testator upon the
heir. [RABADILLA VS. CA]


Distinguish a mode from a condition.
CONDITION MODE
The condition must
happen or be fulfilled
first before the heir
will be entitled to
succeed.
It suspends (the
effectivity) but does
not obligate.
Imposes a burden, but
the heir gets the
property right away
It obligates but does
not suspend.

Rabadilla vs. CA
Condition was imposed on the devisee that
he should give sugar to someone every year until
that person dies. Should the devisee die, his own
heirs still have the obligation to give the sugar
yearly.
Here the testator intended the property to
be inherited by the devisee. It was clear that the
testator imposed an obligation on said instituted heir
and his own heirs. However, it did NOT make the
institution of the devisee dependent on the
performance of said obligation. It was clear that
should the obligation (of giving sugar) be not
complied with, the property shall be turned over to
the testators near descendants. Thus the manner of
institution of the devisee is evidently modal in nature
because it imposes a charge upon the instituted heir
without however affecting the efficacy of such
institution.


ART 883, par 1.

When without the fault of the heir,
an institution referred to in the preceding
article cannot take effect in the exact
manner stated by the testator

it shall be complied with in a manner most
analogous to and in conformity with his wishes.


What is the rule on analogous performance/
constructive compliance?
If a modal institution cannot be literally
performed, it may be complied with in an
analogous manner, taking into account the
purpose of said institution.
Ex. duty of providing rice if it cannot be
literally complied with, provide camote
instead!


Summary of Terms, Conditions, Modes:

What are the 3 instances where a caucion muciana is
required?
1) Negative potestative conditions - 874
and 879
2) Suspensive terms - 885 par. 2
3) Modal institution - 882

Who requires the bond?
The intestate heirs.

SUCCESSION (BALANE) CHAMP 2004
Notes - 41 -
LEGITMES

Balane: You dont know succession if you dont know
legitimes!

Background:
There are 3 successional systems.
1. Absolute freedom - no legitimes (ex. US)
2. Absolute reservation - all legitimes
3. Partial reservation - (French, Spanish,
German)

Our successional system is the partial reservation
system, which reserves a portion of the net estate in
favor of certain heirs.

Legitime: Is that portion so reserved. See Art 886.
Free Portion: Is that portion left available for
testamentary dispositions after the legitimes have
been covered.



ART 886.
(Define Legitime)

Is that part of the testator's property
Which he cannot dispose of
Because the law has reserved it for
certain heirs,
who are therefore called, compulsory
heirs.


What is the nature of legitimes?
It is a quota, portion, fraction, pro-indiviso
share of the estate.
It is NOT specific property.
It is NOT a money value.
Legitimes are set aside by mandate of the
law. The testator is prohibited from disposing
by GRATUITOUS TITLE (either inter vivos or
mortis causa) because the testator is
compelled to set aside legitimes in favor of
certain heirs.

Are onerous dispositions prohibited?
No. Because in theory, nothing is lost from
the estate in an onerous transaction, since
there is merely an exchange of values.


SPOUSES JOAQUIN VS. CA
The right of the heirs are merely inchoate and vests
only upon their parents death. While still living, the
parents (from whom they are to inherit) are free to
dispose of their properties. In their overzealousness
to safeguard their future legitime, the heirs forget
that theoretically, the sale of the lots to their siblings
does not affect the value of their parents estate.
While the sale of the lots reduced the estate, the
cash of equivalent value replaced the lots taken from
the estate.



SPOUSES MANONGSONG VS. ESTIMO
The contract of sale does not deprive the compulsory
heirs of their legitimes. A valid sale for valuable
consideration does not diminish the estate of the
seller. When the disposition is for a valuable
consideration, there is no diminution of the estate
but merely a substitution of values, that is, the
property sold is replaced by the equivalent monetary
consideration.


Who are these certain heirs?
They are the compulsory heirs. Art 887.
The compulsion is not on the part of the heirs
but on the part of the testator.
The compulsory heirs may still choose to
accept or reject it.


ART 887.

The following are compulsory heirs:
Primary
Compulsory
They are
preferred
over and
exclude the
secondary.

1. The legitimate children and
descendants, with respect
to their legitimate parents
and ascendants.

1a. (also adopted children,
legitimated children)

They will all share equally
regardless of age, sex, or
marriage of origin.
As to legitimate descendants:
The nearer exclude the more
remote. Children exclude
grandchildren
Exception: rule on
representation when proper.

- 42
Secondary
Compulsory
They
receive
legitimes only
in default of
the primary.

2. In default of the foregoing,
legitimate parents and
ascendants, with respect to
their legitimate children and
descendants.

As to legitimate ascendants,
only in default of parents. The
nearer exclude the more
remote. (You can go up to
whatever degree).


2a. (also illegitimate parents)

The illegitimate ascending line
includes only parents, it does
not go beyond the parents.

Legitimate
Parents /
Ascendants
are
excluded only
by legitimate
children

Illegitimate
Parents (only)
are
excluded by
both
legitimate and
illegitimate
children


Concurring
Compulsory
They are
not excluded
by the
primary or
secondary
heirs, Neither
do they
exclude one
another.
They succeed
together with
the primary
and
secondary
heirs.
3. The widow or widower
(surviving spouse)

Refers to the spouse of the
decedent, not the spouse of the
predecease heir-child.
[ROSALES VS. ROSALES]
The marriage between the
decedent and the surviving
spouse must be either VALID,
or AT LEAST VOIDABLE (having
no final decree of annulment
yet, at the time of the
decedents death)
In case the spouse dies during
the pendency for declaration of
nullity under Art 36 or Art 40
FC, the case proceeds [CARINO
VS. CARINO]
In case of legal separation,
Mere estrangement is not
a ground for
disqualification of the
surviving spouse
During pendency of
petition for legal
separation, in case of
death of EITHER spouse,
the case is dismissed
still entitled to inherit
[LAPUZ VS. EUFEMIO]
After there has been
decree of separation,
the guilty spouse is
disqualified (from the
legitimes / compulsory
succession only)
the innocent spouse still
entitled.


4. & 5. Illegitimate children/
descendants.

Note: The FC has abolished the
distinction between natural and
spurious children. All
illegitimate children are given
equal legitimary portions. (But
death prior to August 3, 1988,
old distinctions apply, the
spurious gets 4/5 of the
natural.)
As to illegitimate descendants,
the rule is also the nearer
exclude the more remote,
except in cases of
representation, when proper.


Rosales vs. Rosales
Widow Irene insisted on getting a share of
the estate in her capacity as the surviving spouse of
the Carterio, the son of the deceased. She claims
that she is a compulsory heir of her mother-in-law,
together with her son, Macikequerox.
SUCCESSION (BALANE) CHAMP 2004
Notes - 43 -

Is the widow (surviving spouse) an intestate heir of
her mother-in-law?
No. The provision in Art 887 refers to the
estate of the deceased spouse, in which case the
surviving spouse (widow or widower) is a compulsory
heir. It does not apply to the estate of a parent in
law.

The surviving spouse is considered a 3
rd
person as
regards the estate of the parent-in-law. Since the
estate which is the subject mater of the intestate
proceedings in this case is that of the mother-in-law
of the widow, Irene cannot claim to be a compulsory
heir. She also cannot assert the right of
representation as she has no filiation by blood with
her mother-in-law.

How about the son, Macikequerox? Can he represent
his father in the inheritance of his grandmother?
Yes. Macikequerox is called to succession by
law because of his blood relationship. He does not
succeed his father Carterio (the person represented),
who predeceased his grandmother BUT in fact
succeeds from the grandmother, from whom his
father would have succeeded.


LAPUZ VS. EUFEMIO
An action for legal separation involves
nothing but the mere bed-and-board separation of
the spouses and is purely personal. Being personal in
character, it follows that the death of one party to
the action causes the death of the action itself (actio
personalis moritum cum persona). Hence, they
cannot survive the death of the plaintiff if the death
occurs prior to the decree.

In short, an action for legal separation is abated by
the death of the plaintiff. If death supervenes during
the pendency of the action, no decree can be
forthcoming.

Note that it does not matter who dies, it can be the
guilty spouse or the innocent spouse.


What is the foundation of the legitimary system in
the Civil Code?
The principles of exclusion and concurrence.


Different combinations: Art 888-903
1. legitimate children
alone

of the estate
divided equally

2. legitimate children estate, divided
equally
surviving spouse Share equal to
that of 1 child

3. one legitimate child estate
surviving spouse estate


4. legitimate children estate divided
equally
Illegitimate children Share equal to
of 1 legitimate
child, (each)

5. legitimate children estate divided
equally
Illegitimate children**
(subject to reduction)
Share equal to
of 1 legitimate
child, (each)
Surviving spouse*
(preferred)

Share equal to
that of 1
legitimate child

6. One legitimate child estate
Illegitimate children**
(subject to reduction)
Share equal to
of 1 legitimate
child, (each)
Surviving spouse*
(preferred)

estate

7. Legitimate parents alone

estate

8. Legitimate parents estate
Illegitimate children estate

9. Legitimate parents estate
Surviving spouse estate

10. Legitimate parents estate
Illegitimate children estate
Surviving spouse 1/8 estate

11. Surviving Spouse alone

estate
OR
1/3 estate if
articulo mortis
marriage

12. Surviving spouse 1/3 estate
Illegitimate children 1/3 estate

13. Surviving spouse estate
Illegitimate parents estate

14. Illegitimate children
alone
estate

15. Illegitimate parents
alone
estate


***note that a legitimate child includes an adopted
child.
***Balane: There is a premium on legitimacy and
blood relations.





- 44
BARITUA VS. CA
The parents of the deceased succeed only
when the latter dies without a legitimate descendant.
On the other hand, the surviving spouse concurs
with all classes of heirs, even if such spouse had
been estranged from the deceased. Mere
estrangement is not a legal ground for the
disqualification of a surviving spouse as an heir of
the deceased spouse.


Basic Legitime
every time theres a legitimate child/ren -
always from the estate.


Rule for Descendants Other than Children (Art 888).
The general rule is that the nearer exclude the
more remote. Ex. Grandchildren cannot inherit
if there are children.
UNLESS, ALL the children renounce, in which
case all the grandchildren become the nearest
in degree.
Similarly, great-grandchildren cannot inherit
unless ALL children and ALL grandchildren also
renounce.
The exception to the general rule is
representation when proper.
Representation occurs in the following
instances:
a. predecase
b. incapacity
c. disinheritance

Also there is no limit as to the number of
degrees in the descending line that may be
called to succeed, whether in their own right
or by representation.


Rule for the Ascending Line (Art 889)
they are only secondary compulsory heirs.
They succeed only in default of the legitimate
descending line.
1. The nearer exclude the more
remote - there is no representation
in the ascending line.
2. Division by line - the legitime is
divided equally between the
paternal side and the maternal side
3. Equal division within the line


Rule for Surviving Spouse With Children
Share equal to that of one legitimate child (in
case spouse concurs with legitimate children)
Even if all these children renounce, spouse
share will still be computed on the basis of the
childrens share had they accepted (not on the
basis of the number of grandchildren) you
still divide by the number of children so as not
to trifle with the legitime of the spouse by the
mere expedient of all the children agreeing to
renounce.


Rule for Surviving Spouse ALONE
Surviving Spouse as the Sole
Compulsory Heir
of estate
1. If marriage was in
articulo mortis
2. The testator died within 3
months from the time of
said marriage.
3. The parties did NOT
cohabit for more than 5
years
4. The spouse who now died
was the party who, at the
time of marriage, was at
the point of death.

1/3 of estate


Rule on Reduction of Legitimes (Shares)
a. legitimate children never reduced,
they are primary
and preferred
b. surviving spouse never reduced
c. illegitimate children subject to
reduction, pro rata,
without preference
(you get the
remaining portion,
divide it by the
number of
illegitimate children)



ART 902.

The rights of illegitimate children (set forth in
the preceding articles)
are transmitted upon their death
to their descendants, whether legitimate or
illegitimate.


What is the right of representation?
It is the right of the descendants to get the
legitime of their parents.
It is not really representation but more of
subrogation or successional subrogation.


To whom is the right of representation granted?
When Decedent Child
is Legitimate
When Decedent Child
is Illegitimate
- the right of
representation is
given only to the
legitimate
descendants
- the right of
representation is
granted to both
legitimate and
illegitimate
descendants






SUCCESSION (BALANE) CHAMP 2004
Notes - 45 -
ART 891.
RESERVA TRONCAL

The ascendant who inherits from his
descendant
Any property which the latter may have
acquired
By gratuitous title
From another ascendant, brother or
sister,

is obliged to reserve such property
As he may have acquired
By operation of law

for the benefit of relatives
Who are within the 3
rd
degree, AND
Who belong to the line from which said
property came.


Origin
Rista

Gratuitous Operation
title of law by intestacy
(donation or (legitimes or
succession) intestacy)

Prepositus

Rios




What is the reserva troncal?
It is simply a restriction or encumbrance upon
property


What is the purpose of reserva troncal?
It is a special rule designed to assure the return
of reservable property to the third degree
relatives belonging to the line from which the
property originally came, and to avoid its being
dissipated by the relatives of the inheriting
ascendant.
Concretely, it is to avoid the danger that
property existing for many years in the familys
patrimony might pass gratuitously to outsiders
through the accident of marriage and untimely
death.
In short, it is to bring back the property back to
the line of origin.
According to some, it operates as a form of
compensation for the lack of representation in
the ascending line.

2 Conditions for Reserva
1) death of the Rista
2) survival of the Rios




When is there a reserva troncal?
CHUA VS. CFI (Requisites)
1. The property was acquired by a person
(PREPOSITUS) from an ascendant, brother
or sister (ORIGIN)
by gratuituous title (First Transfer)
a. by donation
b. by any kind of succession

Note: no inquiry is to be made beyond
the Origin. It does not matter who the
owner of the property was before it was
acquired by the Origin.

2. That said person dies without legitimate
issue/ descendants.
Only a legitimate descendant will
prevent the legitimate ascendant from
inheriting by operation of law.

3. That the property is inherited by another
ascendant (RESERVISTA)
by operation of law (Second Transfer)
a. by legitimes
b. by intestacy

Note: It is this Second Transfer that
creates the reserva. [SOLIVIO VS. CA]

4. That there are relatives (RESERVATARIOS)
within the 3
rd
degree (from Prepositus)
belonging to the line from which said
property came.

Note: Here, there is a Third Transfer as
the Effect of the Reserva.

5. Note: All the relationships among the
parties must be all legitimate. The
provisions of Art 891 apply only to
legitimate relatives. [NIEVA VS. ALCALA]


SOLIVIO VS. CA
Bachelor had only 2 surviving relatives, one
was his maternal aunt, the other was his paternal
aunt. Bachelors mother earlier inherited from her
mother. When the mother died, Bachelor inherited.
When the Bachelor died, maternal aunt claims sole
ownership, paternal aunt claims inheritance as well.

No reserva troncal. Here, there was no second
transmission. The property of the Bachelor is not
reservable property because he was not an
ascendant but the descendant of his mother, from
whom he inherited the property. He need not reserve
it in favor of his maternal aunt. The reserva troncal
applies only to properties inherited by an ascendant
from a descendant who inherited it from another
ascendant, brother or sister. It does not apply to the
property inherited by a descendant from his
ascendant.

For there to be a reserva, the 2 transfers or
transmissions are required.

- 46
Who are the parties involved in the reserva tronacal?
1. ORIGIN
the transferor in the first transfer
the ascendant, brother or sister of the
Prepositus

Note: in case of brother or sister, there are 2 schools
of thought:
a. that the relationship must be half-blood
because if it is full-blood, it would not be
possible to identify the line of origin,
either paternal or maternal.
b. there is no need to distinguish between
full or half-blood bro/sis.


2. PREPOSITUS
the first transferee
the descendant, brother or sister of the
Origin
receives the property from the origin by
gratuitous title
while the property is with the Prepositus,
there is still no reserva.
He is the "arbiter of the reserva (Sanchez
Roman)

He still has all the rights of ownership and may
prevent the reserva from arising by:
1. substituting or alienating the property
2. bequeathing (through a will) or devising it to
either the potential reservista or to 3
rd

persons.
3. partitioning it and assigning it to parties other
than the potential reservista.



3. RESERVISTA
the other ascendant of the Prepositus of
whatever degree,
He is the one obliged to reserve
The reserva arises only at the time of the
Ristas receives the property from the P.
Upon the Rista death, the property passes
by strict operation of law according to the
rules of intestate succession to the proper
Rios.

What is the nature of the reservistas right?
[EDROSO VS. SABLAN]
a) The Rista right over the property is one of
ownership.

b) The ownership is subject to a resolutory
condition (i.e., the existence of Rios at the
time of the Rista death)
The right of the Rista terminates upon
the happening of the resolutory condition.

c) The right of ownership is alienable. (subject
to the same resolutory condition)

d) The Rista right of ownership is registrable.


EDROSO VS. SABLAN
The ascendant who inherits from a descendant
acquires the inheritance by virtue of a title perfectly
transferring absolute ownership. All the attributes of
the right of ownership belong to him. This absolute
ownership is not altered for as long as
a) there be NO relatives within the 3
rd
degree in
the line from which the property came, OR
b) said relatives die before the ascendant

In short, should there be
a) relatives within 3
rd
degree, AND
b) said relatives (Rios) survive the Rista,
at the time of the Ristas death,
then the limitation on absolute ownership will
arise.

The ascendant (Rista) acquires the property with a
condition subsequent: whether or not there exist at
the time of his death, relatives with the 3
rd
degree. If
such relatives (Rios) exist, they acquire ownership
of the property at the death of the ascendant
(Rista). If they (Rios) do not exist, then the
ascendant (Rista) may freely dispose thereof.

Hence, the Rista has legal title but subject to a
condition. He can do anything that a genuine owner
can do.


Does the Rista have the power to appoint, by will,
who among the reservatarios will get the reserva?
Why?
No. [GONZALES VS. CFI]
Because the reserved property does not form
part of her estate.


GONZALES VS. CFI
May the Rista convey by will to the Rios within
the 3
rd
degree and bypass the Rios within the 2
nd

degree? (favor the grandchildren over her own
children)?

No. Mrs. Legarda cannot convey in her will to her
grandchildren the reserved property which she had
inherited from her descendant daughter because the
reserved properties did not form part of her estate.
The Rista cannot make a disposition mortis causa of
the reserved properties as long as the Rios survive
the Rista.

Art 891 clearly indicates that the reserved properties
should be inherited by the nearest relatives within
the 3
rd
degree from the prepositus, which in this
case, are the children of Mrs. Legarda.

Since the reserved property does not form part of
the Rista lawful inheritance, nor legitime, the Rista
has the strict obligation to delivery it to the relatives.
The property should go to the nearest relatives
(Rios). The Rista cannot by means of her will, chose
the Rios to whom the property should be awarded.


SUCCESSION (BALANE) CHAMP 2004
Notes - 47 -
4. RESERVATARIOS
the relatives benefited
the reserva is in favor of a class, collectively
Two Requisites:
1. must be within the 3
rd
degree of
consanguinity from the Prepositus
[CABARDO VS. VILLANUEVA]
2. must belong to the line from which
the property came.

Note: Rios need NOT be alive when the reserva is
created. This is because the reserva is in favor of a
class.
As long as the Rio is alive at the time of the Ristas
death, even if born conceived and born after the
Prepositus death!


From whom do the Rios inherit?
The Rios receives the property as conditional
heirs of the descendant Prepositus. [CANO VS.
DIRECTOR]

CANO VS. DIRECTOR
The Rios is not the Rista successor. The Rios
receive the property as a conditional heir of the
descendant Prepositus since the property is merely
reverting to the line of origin from which it had
temporarily and accidentally strayed during the
Rista lifetime.
Since the Rios nearest to the Prepositus
becomes automatically and by operation of law the
owner of the reserved property upon the Rista
death, the Rios acquire the property without need
of estate proceedings.


What is the nature of the Reservatarios right?
[SIENES VS. ESPARCIA]
a) The Rios have a right of expectancy over
the property

b) The right is subject to a suspensive
condition (i.e., the expectancy will ripen into
ownership only if the Rios survive the
Rista).

c) The right is alienable. (subject to the same
suspensive condition)

d) The Rios right is registrable.


SIENES VS. ESPARCIA
The reserva constitutes a real right which the
Rios may alienate and dispose of, conditionally, the
condition being that the alienation shall transfer
ownership to the buyer if and only if the Rios survive
the Rista. Any sale made by the Rios prior to the
death of the Rista became effective because of the
occurrence of the suspensive condition (survival of
the Rios).


Is there a preference among reservatarios?
Yes. According to [PADURA VS. BALDOVINO],
the rules of intestate succession are followed,
the reservatarios nearer in degree to the
Prepositus will exclude those more remotely
related. (Hence, there is no equal sharing in the
class).


PADURA VS. BALDOVINO
Upon the death of the ascendant reservista, the
reservable property should pass, NOT to ALL the
reservatarios as a class, but only to those nearest in
degree to the descendant-prepositus, excluding the
reservatarios of a more remote degree.

Proximity of degree and right of representation are
the basic principles in ordinary intestate succession.
In other words, the reserva troncal merely
determines the group of relatives (Rios) to whom
the property should be returned, but within that
group, the individual right to the property shouldbe
decided by the applicable rules of ordinary intestate
succession since Art 891 does not specify otherwise.


Can there be representation among reservatarios?
Yes. [FLORENTINO VS. FLORENTINO]
Actually, there will only be ONE instance of
representation among reservatarios in case of
the Prepositus being survived by the bro/sis and
children of a predeceased or incapacitated
bro/sis.
The relatives within the 3
rd
degree will have
only an expectation to the property while the
ascendant (Rista) lives, an expectation that can
be transmitted to their own heirs, provided that
they are also within the 3
rd
degree.


FLORENTINO VS. FLORENTINO
Following the law in legitimate succession, when
there are relatives of the descendant within the 3
rd

degree, the right of the nearest relative (Rio), over
the property which the Rista should return to him,
excludes that of the one more remote.

The right of representation cannot be alleged when
the one claiming the same as a Reservatario is not
among the relatives within the 3
rd
degree belong to
the line from which the property came.

The right granted by Art 891 is in the highest
degree personal and for the exclusive benefit of the
designate persons who are the relatives within the
3
rd
degree. Therefore relatives of the 4
th
and
succeeding degrees can never be considered as
reservatarios.

In short, there is a right of representation on the
part of the Rios who are within the 3
rd
degree, as in
the case of nephew and nieces of the deceased
from who the reservable property came. These Rios
have the right to represent their ascendants
(fathers and mothers) who are the brothers of the
said deceased person and relatives within the 3
rd

degree.

- 48

GONZALES VS. CFI
The Rios do not inherit from the Rista but from
the descendant Prepositus, of whom the Rios are
the heirs mortis causa, subject to the condition that
they must survive the Rista.


What kind of property may be included in the reserva
troncal?
Any kind. Movable or immovable, fungible or
infungible, fruit-bearing or not, corporeal or
incorporeal.
Money? - yes, provided it is in a form of deposit.


May the property be substituted?
The very self-same property must undergo the 3
transfers in order for the reserva to arise.
If the prepositus substitutes the property (ex, by
selling, barter or exchange), then the
substituted property will not be reservable.
After all, the Prepositus has the power to decide
if a reserva will arise. The Prepositus has
plenary powers of ownership.
The reserva commences only when the property
is received by the Rista.



RESERVA MAXIMA & RESERVA MINIMA

Requisites:
1) If the Prepositus makes a will instituting the
Ascendant-Reservista to the whole or part of the
free portion; AND
2) There is mixture of properties - there is left in
the Prepositus estate, upon his death, property
reservable and property not reservable.


Ex. If the Prepositus institutes the Rista, who is also
a compulsory heir to of his (P) estate but his
estate has mixed properties. Note that P has no
legitimate issue but he has Rios such as bro/sis.

In that case, of Ps estate goes to the Rista as
legitime, the other also goes to Rista by virtue of
the will. In effect, the whole estate is given to the
Ascendant-Reservista.

However, note that Prepositus has mixed properties.
If he another property (not from the Origin but from
his own acquisition), the problem arises as to which
properties the reserva is created.


RESERVA MAXIMA RESERVA MINIMA
- the property from the
Origin (the whole of
which) is subject to the
Reserva. You have to fit
as much of the
reservable property into
the legitime.
- You take the proportion
from both kinds of
properties (both from
the Origin and from his
Own Acquisition).
- from the Origins
property and from
Own-Acquired property.
As much as of the
potentially reservable
property as possible
must be deemed
included in that part that
passes by operation of
law.
Every single property
(regardless of Origin or
Own-Acquired) will pass,
partly by operation of
law, and partly by the
will, in the same
proportion that the part
given by the will bears in
relation to the part not
given.
Note: there may be
other portions reservable
depending on how much
the Prepositus institutes
in favor of the
Ascendant-Reservista.
*read more.. The reserva minima is more accepted
in the Philippines.



OBLIGATIONS OF THE
RESERVISTA
RIGHTS OF THE
RESERVATARIOS
1. To inventory the property to enable the Rios
to know what to expect.
2. In case of immovables annotate its reservable
character in the Registry of Property within 90
days from acceptance by the Rista. [SUMAYA
VS. IAC]
3. In case of movables appraise its value.
4. To secure by means of mortgage:
a. indemnity for any deterioration or
damage to the property due to the fault
of the Rista.
b. Payment for the value of the reserved
movables which may have been
alienated by the Rista.


How is the Reserva Troncal extinguished?
1. death of the Rista
2. death of ALL the Rios
3. renunciation by ALL the Rios (but a future
Rios is not bound by such renunciation a
conditional extinguishment)
4. total and fortuitous loss of the reserved
property
5. confusion or merger of rights between Rista
and Rios (as in the case of a contract)
6. prescription or adverse possession.




Back to Legitimes tayo.

ART 904.

1. The testator cannot deprive his
compulsory heirs of their legitime,
except in cases expressly provided for
by law.

SUCCESSION (BALANE) CHAMP 2004
Notes - 49 -
2. Neither can he impose upon the same any:
a. burden,
b. encumbrance
c. condition, or
d. substitution
of any kind whatsoever.
(no CMT in legitimes!!)

What are the 2 prohibitions on the part of the
testator regarding legitimes?
1. Prohibition to deprive the compulsory heirs of
legitimes
The legitime is not within the testators
control, it passes to the compulsory heirs by
strict operation of law.
EXCEPTION:
in case of disinheritance: the law allows the
testator to deprive the compulsory heirs of
their legitimes.

2. Prohibition to impose burdens on legitime
EXCEPTIONS:
1) Art 1080 p. 2: a parent may desire to
keep an enterprise intact and so may
order that the legitime of other
children to whom the property will
not be assigned, be just paid in cash.
2) Art 1083, p.1: Testator may
expressly forbid partition, the period
of indivision however should not
exceed 20 years.
3) Art 159 FC: the family home should
continue despite death of spouses, as
long as there is a minor beneficiary.
The heirs cannot partition the same
without court order.
4) Art 891: The Reserva Troncal.



ART 905.

Every renunciation or compromise as regards a
future legitime
Between the person owing it, and
The compulsory heir

is void. AND
the latter (compulsory heirs) may claim
the same upon the death of the former.

But the compulsory heirs must bring to
collation whatever they may have received by
virtue of the renunciation or compromise.


What is the duty to collate?
Any property which the compulsory heir may
have gratuitously received from his predecessor
will be considered as an advance on his legitime
and must be duly credited.





What is the scope of this prohibition?
This article applies only to compromises or
renunciation between the predecessor and the
prospective compulsory heir.
Note: there is also a prohibition between a
prospective compulsory heir and another
prospective compulsory heir, or a prospective
compulsory heir and a stranger provision in
Oblicon.


ART 906.

Any compulsory heir to whom the testator left
by any (gratuitous) title
Less than the legitime belonging to him

may demand that the same be fully satisfied.


When will this provision apply?
The right of completion of legitime (actio ad
supplendam legitimam)
1. Article 855 - when the title by which the
testator transmitted property is intestate
succession. Art 855 is a true case of
completion of legitime (no preterition).
2. Art 909 and 910 - donation inter vivos to
compulsory heirs are imputable to their
legitimes.

in both cases, anything that the compulsory heir
receives by gratuitous title from the predecessor is
considered as an advance on the legitime and should
be deducted therefrom.

EXCEPTIONS: (When Not Counted as Legitime)
1. Art 1062 - When the donation inter vivos
was given with the express provision by the
testator that it should not be charged to the
legitime of the donee-compulsory heir.
2. Art 1063 - Testamentary dispositions even
to a compulsory heir. (unless testator
expressly provides that it should be counted
as legitime).



ART 907.

Testamentary dispositions that impair or
diminish the legitime of compulsory heirs
shall be reduced on petition of the same
insofar as they may be inofficious or
excessive.


Again, testamentary dispositions that exceed the
disposable portion may be subject to reduction
upon the instance of the compulsory heirs, to
the extent that the legitimes have been
impaired.




- 50
ART 908.

To determine the legitime:
1. the value of the property left at the
death of the testator shall be
considered

Inventory of all the existing assets
Appraisal or valuation shall be at the time of
the decedents death
You get the Gross Assets.

2. deducting all debts and charges which
shall not include those imposed in the
will.

Deducting unpaid debts and charges
Only those obligations with monetary value
which are not extinguished by death should
be paid.
The difference between the Gross Assets
and the Unpaid Obligations = Available
Assets.


3. To the net value of the hereditary
estate shall be added the value (at the
time he made them) of all the
donations by the testator that are
subject to collation.

Adding the value (only) of the donations
inter vivos
Valuation should be as of the time the
donations were respectively made. (since
donation transfers ownership upon
acceptance, any increase or decrease in
value is for the account of the donee).
The sum of the Available Assets and the
Collated Donations = Net Hereditary Estate.


VIZCONDE VS. CA
Collation is the act by virtue of which
descendants and other forced heirs bring into the
common mass, the property which they received
from the predecessor, so that the division may be
made according to law and the will of the testator.
Collation is required only of compulsory
heirs succeeding with other compulsory heirs. It also
involves only properties received by donation or
gratuitous title during the lifetime of the decedent.
The purpose is to attain equality among the
compulsory heirs.
Collation does not impose any lien on the
property. What is brought to collation is not the
property donated itself, but rather the value of such
property at the time it was donated. The rationale is
that donation is a real alienation which conveys
ownership upon acceptance.

Collation applies only to property given to
compulsory heirs of the decedent.



ART 909/ 910.

DONATIONS GIVEN TO
CHILDREN (also
COMPULSORY HEIRS)

(Also, donations
received by an
illegitimate child
during the lifetime of
his father or mother).

DONATIONS GIVEN TO
STRANGERS
shall be charged to
their legitime.
shall be charged to
that part of the estate
of which the testator
could have disposed
by his last will.
Legitimes can never be
impaired.
In so far as they may
be inofficious or may
exceed the disposable
portion, they shall be
reduced according to
the rule established
by this Code.
Applies to Whom:
Donation inter vivos to
all compulsory heirs (not
just children but also
ascendants) are imputed
to the legitime.

Note that spouses are
prohibiting from
donating to each other
during marriage.
Applies to Whom:
A stranger is anyone who
is not a compulsory heir.
(ex. bro/sis)

Donations to strangers
are imputed to the free
portion.

They may also be
reduced if they impair
legitimes.
EXCEPTION:
Art 1062: If the testator
provides otherwise, that
the donation will not be
counted or imputed as
legitime.
in which case, the
donation is imputed to
the free portion.
Note: Donations to
illegitimate children
are subject to
reduction should they
exceed the free
portion.


ART 911.

After the legitime has been determined in
according with the 3 preceding articles, the
reduction shall be made as follows:

1. Reduce pro-rata the Non-preferred DL and
testamentary dispositions.
2. Reduce pro-rata the preferred DL.
3. Reduce the donation inter vivos according to the
inverse order of their dates (the last donation
goes first, the first donation goes last).
4. Reduce the legitimes of the illegitimate children.

*Note: You reduce step by step to the extent
required to complete the legitimes. You stop
reducing as soon as the legitimes are sufficiently
covered.

SUCCESSION (BALANE) CHAMP 2004
Notes - 51 -

How are Devises and Legacies with usufructs, life
annuities and pensions reduced?
If the value of these grants exceeds the free
portion, it impairs the legitimes and should be
reduced.
The compulsory heir has 2 options:
a) Delivering to the devisee or legatee the free
portion
b) Complying with the testamentary provision


ART 912.

If the devise is:
1. subject to reduction AND
2. consists in real property which cannot
be conveniently divided

If the reduction is less
than of the value of
the thing
If the reduction is
or more of the value
of the thing
it shall go to the
devisee
it shall go to the
compulsory heir

In either case, the compulsory heir and the
devisee shall reimburse each other in cash for
what respectively belongs to them.
(reimburse the party who did not get his physical
portion of the thing).


ART 913.

If neither the compulsory heir nor the devisee
avail themselves of the right under Art 912,

How may the thing devised be disposed of?
1) any other heir or devisee may acquire the
thing and pay the parties their respective
shares in money.
2) If still no other heir or devisee should acquire
it, it shall be sold at a public auction and the
net proceeds should be divided accordingly.


ART 914.

The testator may devise and bequeath the free
portion as he may deem fit.



ART 915-918.
DISINHERITANCE

A compulsory heir, may,
in consequence of disinheritance,
be deprived of his legitime
for causes expressly stated by law.


What is the nature of disinheritance?
It is the sole exception to the prohibition that
the testator may not deprive compulsory heirs of
legitime.

When is there a disinheritance? Requisites.
1. It must be made in a will.
ART 916: Disinheritance can be effected
only through a will
Wherein the cause therefor shall be
specified.

The will must be valid as to its form.
The will must be admitted to probate.

2. It must be for causes specified by law.
The causes are enumerated in Art 919-
921.
See article 918 for effects.

3. The will must specify exactly which cause.
The law is very strict because it regards
disinheritance with disfavor as it results
in the deprivation of legitimes.
See article 918 for effects.

4. It must be unconditional.
Implied in the nature of disinheritance. It
must not contain any conditions.

5. It must be total.
Disinheritance covers the entire
inheritance, not just the legitimes.

6. The cause must be true.
See article 918 for effects.

7. If the truth of the cause is denied (by the
disinherited heir), it must be proved by the
proponent.
ART 917: (In case the disinherited heir
should deny it,) The burden of proving
the truth of the cause for disinheritance
shall rest upon the other heirs of the
testator.


What is the effect if all of these requisites are
present?
You get an valid disinheritance.
It is a total exclusion from the inheritance.
The disinherited heir forfeits:
a) his legitime (compulsory)
b) his intestate portion, if any (intestate)
c) any testatmentary disposition made in a
prior will (testamentary)


What is the effect if some of these requisites are
absent?
You get an ineffective disinheritance.
The heir "so-disinherited shall still get his
legitime. Art 918.







- 52

ART 918: A disinheritance:
a. without a specification of the cause
b. or for a cause the truth of which is not
proved, if contradicted,
c. or which is not one of those set forth
in this Code,

shall annul the institution of heirs, insofar as
it may prejudice the person disinherited,
BUT the DL and other testamentary
dispositions shall be valid to the extent as will
not impair the legitime.


champ.reyno 2004
SUCCESSION (BALANE) CHAMP 2004
Notes - 53 -

ART 919-921
GROUNDS FOR DISINHERITANCE

Disinherit Who?
919: CHILDREN/ DESCENDANTS 920: PARENTS/ ASCENDANTS 921: SPOUSE
1) when the C/D has been found
guilty of an attempt on the life of
the testator, his spouse,
ascendants, descendants
attempted, frustrated,
consummated
final conviction required

2) when the P/A has been convicted of
an attempt on the life of the testator,
his spouse, ascendants, descendants

- same-
1) When the S has been convicted of
an attempt on the life of the testator,
his descendants or ascendants


- same-
2) when the C/D has accused the
testator of a crime for which the
law prescribes imprisonment 6
years or more, if the accusation
has been found groundless

a) filing of complaint before fiscal
b) presenting incriminating
evidence against testator
c) suppressing exculpatory
evidence

-refers to imprisonment of more
than 6 years.
-testator must be acquitted
-accusation must be groundless
acquittal beyond reasonable doubt.
3) when the P/A has accused the
testator of a crime for which the law
prescribes imprisonment 6 years or
more, if the accusation has been found
to be false


- same-
2) when the S has accused the
testator of a crime for which the law
prescribes imprisonment 6 years or
more, if the accusation has been found
to be false


- same-
3) When the C/D has been convicted
of adultery or concubinage with
the spouse of the testator

-final conviction required
-there must have been a valid
marriage
4) when the P/A has been convicted of
adultery or concubinage with the
spouse of the testator.


- same-

4) When a C/D by fraud, violence,
intimidation, or undue influence,
causes the testator to make a will
or to change one already made
5) When the P/A by fraud, violence,
intimidation, or undue influence,
causes the testator to make a will or to
change one already made.
3) When the S by fraud, violence,
intimidation, or undue influence,
causes the testator to make a will or to
change one already made.
5) A refusal, without justifiable
cause, to support the P/A who
disinherits such C/D.

a) there must be a need for support
b) there must be a demand for
support
c) the demand must be unjustifiably
refused.
7) The refusal to support the C/D
without justifiable cause.


- same-
6) Unjustifiable refusal to support the
children, or the other spouse.


- same-
6) Maltreatment by the C/D of the
testator by word or by deed,

-must be either verbal or physical
assault
-must be serious in nature
-conviction not required, mere
commission sufficient






- 54

7) When a C/D leads a dishonorable or
disgraceful life

-habituality required
-not just isolated cases
-need not be sexual
indiscretion


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

-conviction is required.

1) when the parents have
a. abandoned their children,
- repeated or total refusal or
failure to care and support
b. induced their daughters to live a
corrupt or immoral life, or
-should also apply to sons,
-should also apply against
ascendants
c. attempted against their virtue
-conviction not required



6) the loss of parental authority for
causes specified in this Code.

-refers to culpable loss of PA, not
attainment of age of majority.
-requires a judicial decree

5) When the spouse has given grounds
for the loss of parental authority

-judicial decree NOT required
-just giving grounds sufficient

8) An attempt by one of the parents
against the life of the other parent,
unless there has been reconciliation
between them.

4) when the spouse has given cause
for legal separation.

-judicial decree NOT required



Notes:
these are exclusive grounds
children both legitimate and illegitimate






















SUCCESSION (BALANE) CHAMP 2004
Notes - 55 -


- 56

ART 922.

A Subsequent reconciliation between the
offender and the offended person
deprives the latter (the offended person)
the right to disinherit, AND
renders ineffectual any disinheritance that
may have been made.

How can the testator forgive the offense?
Either by:
1) concrete and express pardon extended to the
offending heir.
2) unequivocal conduct towards the offending
heir which reveals the testators intent to
forgive the offense.


What is the effect of reconciliation?
If reconciliation is made before disinheritance
the right to disinherit (later) is extinguished.
If reconciliation is made after disinheritance
the disinheritance itself is set aside.
This means that the disinherited heir:
a) is restored to his legitime
b) is entitled to his proportionate
share in intestacy, if any.
c) Remains entitled to the
testamentary dispositions (HDL), if
he was given some.



ART 923.

The children and descendants of the
(descendant) disinherited
shall take his place
shall preserve the rights of compulsory heirs
with respect to the legitime.

But the disinherited parent
shall not have the usufruct or administration
of the property which constitutes the legitime.


What is the rule on right of representation in
disinheritance?
The right is granted only to descendants of the
disinherited descendants.
The right of representation takes place only in
the direct descending line, never in the
ascending line.
This is similar to Art 1035.


Note:
Representation occurs only in compulsory and
intestate succession, NEVER in testamentary
succession.







If the person disinherited
is a child or descendant
If the person disinherited
is the parent or
ascendant, or the spouse
his own heirs may
represent him
his own heirs cannot
represent
To what extent may they
represent?
Both to the legitime
and the intestate
portion that the
disinherited heir
would have
received.




INTESTATE SUCCESSION


Review:
What are the 3 kinds of succession according to
importance?
1. compulsory
2. testamentary
3. intestate


The intestate succession yields to the 2 other
kinds. It operates only in default of the legitimes
and testamentary succession.
But realistically, intestate succession occurs
most frequently because many people die
without a will.


How do we define intestate or legal succession
again?
Intestate or legal succession takes place by
operation of law in default of a valid will.
It Is the presumed or implied will of testator.


When does intestate succssion operate?
ART 960: Legal or intestate succession takes
place:
1) if a person dies
a) without a will, or
b) with a void will, or
c) one which has subsequently lost its
validity (efficacy)

2) When the will does NOT:
a) institute an heir to, or
b) dispose of
ALL the property of the testator.

In which case legal succession takes place
only with respect to the property of which
the testator has not disposed.


3)
a. If the suspensive condition attached to
the institution of heir does not happen
or is not fulfilled, or
SUCCESSION (BALANE) CHAMP 2004
Notes - 57 -


b. IF the heir
Dies before the testator, or
Repudiates the inheritance

there being no substitution, and
no right of accretion takes place


4) When the instituted heir is incapable of
succeeding except in cases provided in this
Code.


#1 refers to total intestacy
#2,3,4 may be total or partial intestacy


Still there are other causes of intestacy:
5) happening of resolutory condition
6) expiration of resolutory term
7) preterition



ART 961.

In default of testamentary heirs,
the law vests the inheritance
(in accordance with the rules hereinafter set
forth),

1. in the legitimate and illegitimate relatives
of the deceased,
2. in the surviving spouse, and
3. in the State.


ART 962.

In every inheritance, the relative nearest in
degree excludes the more distant ones,
saving the right of representation when it
properly takes place.

Relatives in the same degree shall inherit in
equal shares,
subject to the provisions of
Art 1006 - with respect to relatives of the
full or half blood, and
Art 987, p.2 - concerning division between
the paternal and maternal lines.


The rules of intestacy is similar to that of succession
to legitimes. They are both governed by the rules on
exclusion and concurrence.

What is the basis of intestate succession?
The presumed will of the decedent
The law puts itself in the heart and mind of the
decedent.
As Manresa explains it: Love first descends, then
ascends, then finally spreads sideways.
Thus the law first calls the descendants, then
the ascendants, then finally the collaterals.
But still observing the rule that the nearer
exclude the more remote.
Lastly, in default of anyone called to succession,
it is the presumed will that his property be given
to charitable and educational institutions.


What are the 4 Basic Rules of Intestacy?
1) Rule of Relationship
of course, the heirs must be related to the
decedent. This relationship must first be
ascertained.
There are 4 kinds of relationships:
a. jus familiae - ascendants and
descendants
b. jus sanguinis - collaterals
c. jus conjugis - marriage
d. jus imperii - State or sovereign

2) Rule of Preference of Lines
Note that there are 3 lines of relationship:
a. descending line
b. ascending line
c. collateral line
The descending excludes the ascending and
collateral,
The ascending excludes the collateral.

3) Rule of Proximity of Degree
The nearer exclude the more remote,
without prejudice to representation

4) Rule of Equality Among Relatives of the Same
Degree
Those of equal degree inherit in equal
shares.
Exceptions:
a) rule of preference of lines - the direct
line is preferred over the collateral,
even if they are of the same degree.
b) The distinction between legitimate and
illegitimate filiation (ratio is 2:1)
c) Rule of division by line in the ascending
line (Art 987)
d) The distinction between full-blood and
half-blood bro/sis, nephews/nieces (Art
1006 & 1008) [PADURA] (ratio is 2:1)
e) Right of representation ex. the
grandchildren may inherit depending on
their number.



ART 963-966
RELATIONSHIP

963: Proximity of relationship is determined by
the number of generations.

Each generation forms a degree.


964: A series of degrees forms a line
which may either be:
a) direct or,
b) collateral.
- 58


Direct Line Collateral Line
-is that constituted by the
series of degrees among
ascendants and descendants.
-is that constituted
by the series of
degrees among
persons who are not
ascendants and
descendants,
-but who come from
a common ancestor.
965: The direct line is
either: ascending or
descending

Descending Ascending
-unites the
head of the
family with
those who
descend
from him.
-binds a
person
with those
from whom
he
descends.

(in short, they are
persons who are not
ascended or
descended from
each other).
966: In the line, as many degrees are counted
as there are generations or persons, excluding
the progenitor.

966: In the direct line,
ascent is made to the
common ancestor.

Thus, the child is 1
degree removed from
the parent, 2 from the
grandfather, and 3
from the great-
grandparent.
In the collateral line,
ascent is made to the
common ancestor,
AND then descent is
made to the person
with whom the
computation is to be
made.

Thus, a person is 2
degrees removed from
his brother, 3 from his
uncle (who is the
brother of his father),
4 from his first cousin,
and so forth.
Limit: Ad infinitum Limit: 5 degrees


What is the importance of line?
There are preferences made in intestacy. See
distinction between direct and collateral,
ascending and descending.

What is the importance of distinguishing the direct
and collateral lines?
The direct line is preferred over the collateral.
Ex. lolo is preferred over kuya.
Also, in the direct line there is no limit to the
number of degrees. (you can go ad infinitum in
intestacy)
In the collateral line there is a limit, intestate
succession extends only to the 5
th
degree of
collateral relationship.

What is the importance of distinguishing the
descending direct and the ascending direct lines?
The descending is preferred over the ascending.
Ex. the anak is preferred over the lolo.

What is the importance of degree?
It determines proximity of relationship. Every
genereation is a degree.
Also, we recall the rule that: the nearer exclude
the more remote.


ART 967.

Full Blood
Relationship
Half-Blood
Relationship
-is that existing between
persons who have the
same father AND the
same mother
-is that existing between
persons who have the
same father, BUT not
the same mother, or
vice versa.

What is the importance of distinguishing between
full-blood and half-blood?
The distinction applies only to:
1) brothers and sisters, and (Art 1006)
2) nephews and nieces (Art 1008)
There is a ratio of 2:1 for full-blood and half-
blood. But this applies only in intestacy!!!


ART 968.

If there are several relatives of the same
degree,

And one or some of them are unwilling or
incapacitated to succeed,

his portion shall accrue to the others of the
same degree,
save the right of representation when it
should take place.


Is there accretion is intestacy?
Yes, among heirs of the same degree for the
following instances: (Art 1015)
1. predecease
2. incapacity
3. renunciation
However, if there is representation (only in the
descending line) in those 3 instances, then there
will be NO accretion.
Should there be accretion, the heirs involved
must be in the same kind of relationship to the
decedent. This is because of the preference of
lines in intestate succession. (ex. all brothers, all
grandchildren).


ART 969.

If the inheritance should be repudiated by
1. the nearest relative, should there be only
one, or
2. by all of the nearest relatives called by law
to succeed, should there be several,


SUCCESSION (BALANE) CHAMP 2004
Notes - 59 -

those of the following degree shall inherit in
their own right,
and cannot represent the person or persons
repudiating the inheritance.


What is the effect of renunciation by all in the same
degree?
The right of succession should first be passed on
the heirs in succeeding degrees (successive
order), before the next line can succeed.
This is because of the rule of preference of lines.

So how will the right be passed if an heir repudiates?
First, to the descending line if all of the
descendants of a certain degree renounce,
succession passes to the descendants of the
next degree, and so on, ad infinitum.
Second, to the ascending line if nobody is left
in the descending line, the heirs in the
ascending line acquire the right of succession,
again in the order of proximity.
Last, to the collateral line if all the ascendants
and descendants renounce, only then will the
collateral relatives have the right to succeed.



ART 970-977.
RIGHT OF REPRESENTATION

What is this right of representation?
970: Representation is
o a right created by fiction of law,
o by virtue of which the representative is
raised
o to the place and the degree of the
person represented, and
o acquires the rights which the latter
would have
o if he were living or could have
inherited.
Actually, representation should be termed
"subrogation since the representative does not
represent but actually takes the place of the
person. What he receives is not for the benefit
of the deceased but for himself! For his own
benefit! The inheritance is really for him, not for
the dead!
971: The representative is called to the
succession by law, and not by the person
represented. (deaceased or incapacitated
na nga eh!)
The representative does not succeed the
person represented, but the one whom the
person represented would have succeeded.


When does representation operate?
1. Predecease (981)
2. Incapacity or unworthiness (1035)
3. Disinheritance (923)
BUT NEVER IN RENUNCIATION.
Hence, a renouncer cannot be represented.
977: Heirs who repudiate their share
may not be represented.
But of course, a renouncer can represent the
person whose inheritance he has renounced.
976: A person may represent him whose
inheritance he has renounced.


What kinds of succession may there be
representation?
1. Compulsory succession as to the legitime
2. Intestate/ legal succession as to intestate
share.
BUT NEVER IN TESTAMENTARY SUCCESSION.


Which line does the representation obtain?
As to legitime As to intestacy
-only in the direct line,
never in the ascending
line.
972: The right of
representation takes
place in the direct
descending line, but
never in the
ascending.


-in the direct line (972)
972: The right of
representation takes
place in the direct
descending line, but
never in the
ascending.

-in the collateral line
but only in case of
nephews and nieces,
representing their
fathers or mothers, as
the brothers or sisters
of the deceased.
972: In the collateral
line, it takes place
only in favor of the
children of brothers
or sisters, whether
they be of the full or
half blood.

975: When the
children of one or
more
brothers/sisters of
the deceased
survive, they shall
inherit from the
latter by
representation, if
they survive with
their uncles or
aunts. But if they
survive alone, they
shall inherit in equal
portions.


Can illegitimate children represent?
If the person to be
represented is a
legitimate child
If the person to be
represented is an
illegitimate child
only his legitimate
children/descendants can
represent him
both legitimate and
illegitimate
children/descendants can
represent him.


- 60


Can adopted children represent? Can they be
represented?
No, no, no!
An adopted child can neither represent nor be
represented. [TEOTICO VS. DEL VAL]
[SAYSON VS. CA]


TEOTICO VS. DEL VAL
Under our law, the relationship established
by adoption is limited solely to the adopter and the
adopted, and does not extend to the relatives of the
adopting parents, or of the adopted child. Hence, no
relationship is created between the adopted and the
collaterals of the adopting parents. As a
consequence, the adopted is an heir of the adopter,
but not of the relatives of the adopter.

The adopted child cannot be considered as a relative
of the ascendants and collaterals of the adopting
parents, nor of the legitimate children which they
may have after the adoption. Neither are the
children of the adopted considered as descendants of
the adopter. The relationship created by adoption is
limited to the adopter and the adopted, and does not
extend to other members of the family of either.
Only that the adopted is prohibited to marry the
children of the adopter (not because they are
relatives, which they are not), but just to avoid
scandal.


How does representation operate?
974: Whenever there is succession by
representation, the division of the estate
shall be made per stirpes,
in such manner that the
representative(s) shall not inherit more
than what the person they represent
would inherit, if he were living or could
have inherited.

Per stirpes. The representative(s) receive
collectively only what the person represented
would have received had he not died or not
been incapacitated. Among the
representatives, they divide the portion
equally, in general.
Note: if the representatives are composed of
legitimate and illegitimate children they
just dont divide equally, you have to observe
the distinction.


Who are qualified to represent?
Note: capacity to succeed is not the same as
capacity to represent.
973: In order that representation may
take place, it is necessary that the
representative himself be capable of
succeeding the decedent.






(decedent)





(person represented)




(representative(s))



1. The representative must be qualified (art
1032) to succeed the decedent.

2. The representative need not be qualified to
succeed the person represented.
3. The person represented need not be
qualified to succeed the decedent kaya
nga he died, or was incapacitated, or
disinherited.


Distinguish representation by grandchildren and by
nephews/nieces.
BY GRANDCHILDREN BY NEPHEWS / NIECES
-If all the children are
disqualified the
grandchildren still inherit
by representation

982: The
grandchildren and
other descendants
shall inherit by right
of representation.
-If all the brothers and
sisters of the deceased
are disqualified the
nephews and nieces
inherit per capita.

975: When the
children of one or
more brothers/sisters
of the deceased
survive, they shall
inherit from the latter
by representation, if
they survive with their
uncles or aunts. But if
they survive alone,
they shall inherit in
equal portions.
But, even if only some, not all, of the children or the
brothers and sisters are disqualified, the rule is still
the same.

**Study problem on page 415.












a
b
c
SUCCESSION (BALANE) CHAMP 2004
Notes - 61 -

ORDER OF INTESTATE SUCCESSION

Compulsory Heirs in
Legitimes
Intestate Heirs
1. Legitimate C/D
2. Illegitimate C/D
3. Legitimate P/A
4. Illegitimate P (only)
5. Surviving Spouse
1. Legitimate C/D
2. Illegitimate C/D
3. Legitimate P/A
4. Illegitimate P (only)
5. Surviving Spouse
6. Bro/Sis,
Nephews/Nieces
7. Other Collaterals - up
to the 5
th
degree only
8. State

*1-5 exclude 6-8, except
5&6 (they will concur)
5&6 are given special
preference


Intestacy Rules on Exclusion and Preference

1. Legitimate Children/Descendants
Exclude: Parents,
Collaterals,
State
Concur With: Surviving Spouse,
Illegitimate Children
Are excluded by: No one.

2. Illegitimate Children/Descendants
Exclude: Illegitimate Parents,
Collaterals,
State
Concur With: Surviving Spouse,
Legitimate Children,
Legitimate Parents
Are excluded by: No one.

3. Legitimate Parents/Ascendants
Exclude: Collaterals,
State
Concur With: Surviving Spouse,
Illegitimate Children
Are excluded by: Legitimate Children

4. Illegitimate Parents (only)
Exclude: Collaterals,
State
Concur With: Surviving Spouse,
Are excluded by: Legitimate Children,
Illegitimate Children

5. Surviving Spouse
Exclude: Collaterals other than
bro/sis, nephews/nieces
State
Concur With: Legitimate Children,
Illegitimate Children,
Legitimate Parents,
Illegitimate Parents,
Bro/Sis; Nephews/Nieces
Are excluded by: No one.

6. Brother/Sister; Nephews/Nieces
Exclude: All other collaterals,
State
Concur With: Surviving Spouse,
Are excluded by: Legitimate Children,
Illegitimate Children,
Legitimate Parents,
Illegitimate Parents

7. Other Collaterals Up to the 5th
Exclude: Collaterals in remoter
degrees,
State
Concur With: Collaterals in the same
degree
Are excluded by: Legitimate Children,
Illegitimate Children,
Legitimate Parents,
Illegitimate Parents,
Surviving Spouse,
Bro/Sis; Nephews/Nieces

8. State
Exclude: No one.
Concur With: No one.
Are excluded by: Everyone above.



COMBINATIONS IN INTESTATE SUCCESSION -
TOTAL INTESTACY: (ART 960!)

Note: the rules on exclusion and preference will also
come into play in intestacy.

1.
Legitimate
Children
Alone
Legitime:

Intestate
portion:
the free
portion
divided,
equally

Total Take
Home:

The whole
estate,
divided
equally.
Free:
goes to all


2.
Legitimate
Children
Legitime:

Illegitimate
Children
Legitime:
each gets
share of
1
legitimate
child

Intestate
portion:
Apportion
residue to
both
legitimate
and
illegitimate
children
with the
ratio 2:1
Total Take
Home:

The whole
estate,
with each
illegitimate
child
getting
of share of
1
legitimate
child.

Free: any
residue
left.

- 62

3.
Legitimate
Children
Legitime:

Surviving
Spouse
Legitime:
gets share
of 1
legitimate
child
Intestate
Portion:
Give the
residue to
all of
them.

*spouse
counted as
1 child.

Total Take
Home:

The whole
estate,
divided
equally,
The
surviving
spouse
counted as
1
legitimate
child.
Free: any
residue
left.


3a.
One
Legitimate
Child
Legitime:

Intestate
Portion:
None.
Total Take
Home:

Surviving
Spouse
Legitime:

Intestate
Portion:
The free
.

Total Take
Home:

Free: 1/4 The whole
estate was
given to
them.

4.
Legitimate
Children
Legitime:

Surviving
Spouse
Legitime:
share of 1
legitimate
Illegitimate
Children
Legitime:
share of
1
legitimate,
each
Intestate
Portion:
Apportion
residue to
both
legitimate
and
illegitimate
children
with the
ratio 2:1

*the
surviving
spouse is
counted as
1
legitimate
child

Total Take
Home:

The whole
estate,
with each
illegitimate
child
getting
of share of
1
legitimate
child
And the
surviving
spouse
counted as
1
legitimate
child

Free:
Residue
Thus the
whole
estate
went to all
of them.






5.
Legitimate
Parents
Alone
Legitime:

Intestate
Portion:
Give all of
them the
free.
Total Take
Home:

Thus, the
whole
estate
went to
them.,
divided
equally
Free:

6.
Legitimate
Ascendants
Alone
Legitime:

Intestate
Portion:
Give all of
them the
free.
Total Take
Home:

Thus, the
whole
estate
went to
them,
divided
equally +
observe
rule of
division by
line
Free:

7.
Legitimate
Parents
Legitime:

Intestate
Portion:
None.
Total Take
Home:

Illegitimate
Children
Legitime:

Intestate
Portion:
The free
.
Total Take
Home:

Free:

8.
Legitimate
Parents
Legitime:

Intestate
Portion:
None.
Total Take
Home:

Surviving
Spouse
Legitime:

Intestate
Portion:
The free
.
Total Take
Home:

Free:


9.
Legitimate
Parents
Legitime:

Intestate
Portion:
None.
Total Take
Home:

Illegitimate
Children
Legitime:
, divided
equally
Intestate
Portion:
None.
Total Take
Home:
divided
equally
Surviving
Spouse
Legitime:
1/8
Intestate
Portion:
The free
1/8.
Total Take
Home:

Free: 1/8

SUCCESSION (BALANE) CHAMP 2004
Notes - 63 -

10.
Illegitimate
Children
Alone
Legitime:

Intestate
Portion:
The free
.
Total Take
Home:

The whole
estate,
divided
equally.
Free:

11.
Illegitimate
Children
Legitime:
1/3
Intestate
Portion:
Half of the
free 1/3 =
1/6
Total Take
Home:

Surviving
Spouse
Legitime:
1/3
Intestate
Portion:
Half of the
free 1/3 =
1/6
Total Take
Home:

Free: 1/3

12.
Surviving
Spouse
Alone
Legitime:
ordinary
Intestate
Portion:
The free
Total Take
Home:

The whole
estate.
Free:

13.
Surviving
Spouse
Legitime:

Intestate
Portion:
Half of the
free =

Total Take
Home:

Illegitimate
Parents
Legitime:

Intestate
Portion:
Half of the
free =

Total Take
Home:

Free:

14.
Surviving
Spouse
Legitime:

Intestate
Portion:
None.
Total
Take
Home:

Legitimate
Bro/Sis
Legitime:
None.
Intestate
Portion:
The free
Nephews/
Nieces
Legitime:
None.
Intestate
Portion:
Inherit by
representation
only.
Total
Take
Home:

Free:







15.
Surviving
Spouse
Legitime:

Intestate
Portion:
None.
Total
Take
Home:

Illegitimate
Bro/Sis
Legitime:
None.
Intestate
Portion:
The free
Nephews/
Nieces
Legitime:
None.
Intestate
Portion:
Inherit by
representation
only.
Total
Take
Home:

Free:

16.
Illegitimate
Parents
Alone
Legitime:

Intestate
Portion:
The free
Total Take
Home:

The whole
estate.
Free:

17.
Illegitimate
Parents
Legitime:
None.
Excluded.
Intestate
Portion:
None.
Total Take
Home:
None.
Children of
any kind
Legitime:

See Box # 1, 2, 10

18.
Legitimate
Bro/Sis
Alone
Legitime:
None.
Intestate
Portion:
The whole
free,

If all full
blood or all
half blood
divided
equally.

If mixed
blood
2:1 ratio
Total Take
Home:

The whole
estate.
Free:
whole
estate













Remember: The person who has the free portion
may suffer reduction of his intestate share in case of
partial intestacy.


- 64

19.
Legitimate
Bro/Sis &
Legitime:
None.
Intestate
Portion:
The whole
free,

If all full blood
or all half
blood
divided
equally.

If mixed blood
2:1 ratio
Nephews/
Nieces
Legitime:
None.
Intestate
Portion:
Inherit by
representation
only
Total
Take
Home:

The
whole
estate.
Free:
whole
estate


20.
Nephews/
Nieces
Legitime:
None.
Intestate
Portion:
The whole
free,

PROVIDED,
See box
#22
Total Take
Home:

The whole
estate.
Uncles/
Aunts
Legitime:
None.
Excluded
[BACAYO
VS.
BORROMEO]

Free:
whole
estate


21.
Illegitimate
Bro/Sis
Alone
Legitime:
None
Intestate
Portion:

The whole
free,

If all full
blood or all
half blood
divided
equally.

If mixed
blood
2:1 ratio
Total Take
Home:

The whole
estate.
Free:
Whole
estate








22.
Illegitimate
Bro/Sis
Legitime:
None
Intestate
Portion:
The whole free,

If all full blood
or all half blood
divided
equally.

If mixed blood
2:1 ratio
Total
Take
Home:

The
whole
estate.
Nephews/
Nieces
Legitime:
None
Intestate
Portion:
Inherit by
representation
only

Free:
Whole
estate


23.
Nephews/
Nieces
Alone
Legitime:
None.
Intestate
Portion:
The whole
free

If all full
blood or all
half blood
*per
capita

If mixed
blood
2:1 ratio



Total Take
Home:

The whole
estate.
Free:
Whole
estate


24.
Other
Collaterals
Legitime:
None.
Intestate
Portion:
The whole
free,

*Per
capita.

The nearer
exclude
the more
remote.

Total Take
Home:

The whole
estate.
Free:
Whole
estate







SUCCESSION (BALANE) CHAMP 2004
Notes - 65 -

25.
State Legitime:
None.
Intestate
Portion:
The whole
free
Total Take
Home:

The whole
estate.
Free:
Whole
estate





Direct Descending Line Art 978-983
Including Adopted Children Family COde


SAYSON VS. CA
In the case of adopted children, while it is
true that the adopted child shall be deemed to be a
legitimate child and have the same rights as the
latter, these rights do not include the right of
represenatation. The relationship created by the
adoption is between only the adopting parents and
the adopted child and does not extend to the blood
relatives of either party.

Rules of Succession of an Adopted Child
1. The adopted child inherits from his adopter
in exactly the same way and exactly the
same extent as a legitimate child.
2. The adopted child remains an heir of his
biological parents and other blood relatives
(as if there was no adoption). This applies
to both compulsory and intestate
succession.
*see book for combinations, page 455.



Direct Ascending Line Art 985-987


Illegitimate Children Art 988-994

Art 992 is very important because it is the
successional barrier between the legitimate and
illegitimate relatives of the decedent.

ART 992:
An illegitimate child
has no right to inherit ab intestato
From the legitimate children and
relatives of his father or mother
Nor such children or relatives inherit in the
same manner
From the illegitimate child.

Note:
An illegitimate cannot inherit from legitimate.
Legitimates cannot also inherit from the
illegitimate.
But an illegitimate can inherit from another
illegitimate.


CORPUS VS. ADMINISTRATOR
Since Teodoro Yangco was an acknowledged
natural child or was illegitimate and since Juanita
Corpus was the legitimate child of Jose Corpus,
himself a legitimate child, we hold that the appellant
Tomas Corpus has no cause of action for recovery of
the supposed hereditary share of his mother, Juanita
Corpus, as legal heir, in Yangcos estate. Juanita
Corpus was not a legal heir of Yangco because there
is no reciprocal succession between legitimate and
illegitimate relatives.

This rule is based on the theory that the illegitimate
child is disgracefully looked upon by the legitimate
family, while the legitimate family is in turn hated by
the illegitimate child. The law does not recognize the
blood tie and seeks to avoid further grounds of
resentment.


LEONARDO VS. CA
Even if the petitioner is the child of
Leonardo, still he cannot, by right of representation,
claim a share of the estate left by the decease Reyes
considering that he was born outside wedlock. His
alleged putative father and mother were then not yet
married. At most, petitioner is an illegitimate child
who has not right to inherit ab intestato from the
legitimate children and relatives of his father, like
the deceased Reyes.


MANUEL VS. FERRER
This is the principle of absolute separation
between the legitimate family and the illegitimate
family. The doctrine rejects succession ab intestato
in the collateral line between legitimate relatives on
the one hand, and the illegitimate relatives on the
other.

What is meant by the law when it speaks of brothers
and sisters, nephews and nieces, as legal or intestate
heirs of an illegitimate child? It is clear that by virtue
of this barrier, the legitimate brothers and sisters, as
well as the children, whether legitimate or
illegitimate, of such brothers and sisters, cannot
inherit from said illegitimate child.


DIAZ VS. IAC
Art 992 provides a barrier or iron curtain in
that it prohibits absolutely a succession ab intestato
between:
1. illegitimate child and
2. the legitimate children and relatives of the
father or mother of said legitimate child.

Between the legitimate family and the illegitimate
family, there is presumed to be an intervening
antagonism and incompatibility.

Art 902, 989 and 990 clearly speak of successional
rights of illegitimate children, which rights are
transmitted to their descendants upon their death.
The descendants of these illegitimate children, who
- 66

may inherit by virtue of representation may either be
legitimate or illegitimate.

In whatever manner, one should not overlook the
fact that the person to be represented are
themselves illegitimate. The right of representation is
not available to illegitimate descendants of legitimate
children, in the inheritance of a legitimate
grandparent.

The right to represent illegitimate children however
is subject to the limitation prescribed in Art 992
to the end that an illegitimate child has no right to
inherit ab intestato from the legitimate children, and
relatives of his father or mother.

While the NCC may have granted successional rights
to illegitimate children, they however, read in
conjunction with Art 992, prohibit the right of
representation from being exercised where the
person to be represented is a legitimate child.
Needless to say, the determining factor is the
legitimacy or illegitimacy of the person to be
represented.

If the person to be
represented is an
illegitimate child
If the person to be
represented is a
legitimate child
then his descendants,
whether legitimate or
illegitimate, may
represent him
his illegitimate
descendants cannot
represent him because
the law provides that
only his legitimate
descendants may
exercise the right of
representation by virtue
of Art 992.


Surviving Spouse Art 995-1002

SANTILLON VS. MIRANDA
Art 892 falls under the chapter on
testamentary succession, while Art 996 comes under
intestate succession. Art 892 merely fixes the
legitime of the surviving spouse and the legitime of
children in testate succession. While it may indicate
the intent of the law with respect to the ideal shares
that a child and a spouse should get when the concur
with each other. It does not fix the amount of shares
that such child and spouse are entitled when
intestacy occurs.

In intestacy, if there is only one legitimate child
surviving with the spouse, since they share equally,
of the estate goes to the child and the other
goes to the surviving spouse Although the law refers
to children or descendants, the rule in statutory
construction that the plural can be understood to
include the singular is applicable in this case.

If the surviving spouse and 1 legitimate child are life,
the surviving spouse has the same share as that of
the child.


In testate succession In intestate succession
Where there is only one
child surviving the
spouse, the child gets
and the surviving spouse
gets only .
The Child gets and the
surviving spouse gets
also .


Collateral Relatives Art 1003-1010


The State Art 1011-1014

How is the decedents assets disposed in favor of the
State in intestacy?
If resident of the
Philippines
If never a resident of the
Philippines
Real
Property
Personal
Property
-where
situated
-to muni.
Of last
residence

-real and personal
property where
situated.
How may the properties be used?
a. for the benefit of public educational and
charitable institutions in the respective
municipalities or cities.
b. The court may also order the creation of a
permanent trust for the benefit of the
institutions concerned.
May a person still claim the property from the State?
Yes. Provided such person is really entitled by
succession to the estate (whether by
compulsory, testamentary, or intestate
succession)
The prescriptive period to make the claim is
5 years from the deliver of the property to the
municipality or city concerned.



PARTIAL INTESTACY

The provisions and combinations above cover
only cases of total intestacy.

What happens if the decedent left a will disposing
only part of the free portion? What is to be done to
the remainder of the free portion?
1. First, trace where the free portion went in total
intestacy.
2. Then, carry out the testamentary provision so
that you can determine the real net free
portion.
3. What is left of the free portion should then be
given to the intended beneficiary in intestacy.
You use the provisions in total intestacy
to determine to whom you will give the
real net free portion.

*NOTE: you dont simply divide the free portion!
*see book for example, page 457.



SUCCESSION (BALANE) CHAMP 2004
Notes - 67 -



PROVISIONS COMMON TO TESTATE AND
INTESTATE SUCCESSION


ART 1015-1023
RIGHT OF ACCRETION

What is the right of accretion?
ART 1015: Accretion is the right by virtue
of which
when 2 or more persons are called to the
same inheritance, devise or legacy,
the part assigned to:
1) the one who renounces, or
2) cannot receive his share, or
3) who died before the testator,
is added or incorporated,
to that of his co-heir, co-devisees, or co-
legatees.


What are the elements of accretion?
ART 1016: In order that the right of
accretion may take place in a testamentary
succession, it shall be necessary that:

1) Two or more persons be called to
o The same inheritance, or
o The same portion thereof,
pro indiviso;

What does pro-indiviso mean?
That either of the co-heirs are instituted
without individual designation of shares.
That the co-heirs are instituted with the
specification that they share equally or that
they have the same fractional sharing.
In short, it means "undivided or "in
common
As long as the result would be co-ownership,
regardless of equality or inequality.


2) One of the persons thus called:
o Die before the testator, or
o Renounce the inheritance, or
o Be incapacitated to receive it.
When will accretion take place?
a. Predecease
b. Renunciation
c. Incapacity
PROVIDED, only some, not all, of the instituted heirs
give ground.
*these are the same grounds for simple substitution

When will accretion take place in intestacy?
a. Predecease - only if theres no
representation
b. Renunciation - always
c. Incapacity or Unworthiness - only if theres
no representation.

In short, in intestacy, accretion is subordinate to
representation.

ART 918: In legal succession, the share of the
person who repudiates the inheritance shall
always accrue to his co-heirs.


How does accretion operate?
1. Accretion should be proportional.
ART 1019: The heirs to whom the portion
goes by the right of accretion,
take it in the same proportion that they
inherit.

2. GR: ART 1020: The heirs to whom the
inheritance accrues
shall succeed to all the right and
obligations
which the heir who renounced or could
not receive it would have had.
EXCEPTIONS:
a. in testamentary succession, if the
testator provides otherwise
b. if the obligation is purely personal,
hence intransmissible


ART 1021.

Among the compulsory heirs,
the right of accretion shall take place
only when the free portion is left
a) to 2 or more of them, or
b) to anyone of them and to a stranger

Should the part repudiated be the legitime,
the other co-heirs shall succeed to it in
their own right
Not by the right of accretion

This shows that there is no accretion in the
legitime.


How does accretion take place in testamentary
succession?
ART 1022: when the right of accretion
does not take place
the vacant portion of the instituted
heirs
if no substitute has been
designated
shall pass to the legal heirs of the
testator,
who shall receive it with the same
charges and obligations.

Hence, in testamentary succession, accretion
and substitution may overlap. But the
substitution will prevail over the accretion.
This is because substitution is the testators
express intent, while accretion is merely his
implied intent.

- 68

If there is neither substitution nor accretion,
the vacant part will go by way of intestacy.


ART 1023.

Accretion shall also take place among Devisees,
Legatees, and Usufructuaries, under the same
conditions as established for Heirs.




CAPACITY TO SUCCEED
(BY WILL OR BY INTESTACY)


ART 1024.

Persons not incapacitated by law
may succeed by will or ab intestato
(intestacy).

The provisions relation to incapacity by will are
equally applicable to intestate succession.


Who may succeed by will or by intestacy?
Any person having capacity to succeed, as
long as he has juridical personality.
Incapacity must be based on some legal
ground and must be shown.

Codal Provisions Applicability:
1. Art 1027, par.1-5
Testamentary succession only.
2. Art 1027, par. 6
All kinds of succession.
3. Art 1028
Testamentary succession only.
4. Art 1032
All kinds of succession.


Who may inherit?
Both a natural person and a juridical person.

What are the requisites for succeeding?
NATURAL PERSON
Art 1025:
In order to be capacitated to inherit,

the HDL must be living
at the moment the succession opens
(when the decedent dies).

When is a person living?
Art 1025:
A child already conceived at the time of the
death of the testator

is capable of succeeding,
provided it be born later.



In short, it is enough that the HDL be already
conceived when the decedent dies, provided it be
born later.



If institution of HDL is
subject to a
SUSPENSIVE
CONDITION
If institution of HDL is
subject to a
SUSPENSIVE TERM
1. Successor HDL
must be living at
the time the
decedent dies, AND
2. At the time the
condition happens.
1. Successor HDL
must be living at
the time the
decedent dies.


*note: Requirement #1 is absolute for both cases.
Not even representation is an exception because for
representation to occur, the representative must
also be at least already conceived when the
decedent dies. (Art 971 and 973)
(see book example, page 465)
*this table also applies to juridical persons


PARISH PREIST OF TARLAC VS. RIGOR
There was a devise in favor of the nearest
male relative who would become a parish priest, who
was forbidden to sell such land and would lose the
devise if he discontinued his studies for the
priesthood.

Issue: the time when the nearest male relative
would study for the priesthood should be
determined. Did the testator contemplate only his
nearest male relative at the time of his death or at
anytime after his death?

SC: Only at the time of his death. Not an indefinite
time thereafter. In order to be capacitated to inherit,
the HDL must be living at the moment the
succession opens. To construe them as referring to
the testators nearest male relative at anytime after
his death would create uncertainty as to the
disposition of the estate. The testator must have
known that such a broad provision would suspend for
an unlimited period of time the efficaciousness of his
bequest.

Since the testator was not survived by any nephew
who became a priest, the devise in question was
ineffectual or inoperative.


JURIDICAL PERSON
Can a juridical person inherit?
Of course yes!
ART 1026:
A testamentary disposition may be made to
the:
State, provinces, municipal
corporations
Private corporations, organizations
or associations
for religious, scientific, cultural,
educational, or charitable purposes.
SUCCESSION (BALANE) CHAMP 2004
Notes - 69 -



What are the requisites for succeeding?
ART 1026:
All other corporations and entities may
succeed under a will
unless there is a provision to the contrary
in their charter, or the laws of their creation,
and always subject to the same.

In short, it must already exist as a juridical person
when the decedent dies.


ART 1027.

The following are incapable of succeeding:

1) The priest
who heard the confession of the
testator during his last illness, or

The minister of the gospel,
who extended spiritual aid to him
during the same period.

Requisites:
1. the will must have been executed during
the testators 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.

Note: this applies not only to Christian priests, but
also to all other religions.


2) The relatives of such priest of minister of
the gospel
Within the 4
th
degree,

The church, order, chapter, community,
organization or institution
To which such priest or minister may
belong.



3) A guardian
With respect to the testamentary
dispositions given by a ward in his
favor
Before the final accounts of the
guardianship have been approved
Even if he testator should die after
the approval thereof;

Nevertheless, a provision made by the
ward
In favor of the guardian, (when the
latter is his ascendant, descendant,
brother, sister, or spouse), shall be
valid.




4) Any attesting witness
To the execution of a will,

The spouse, parents, or children, or

Anyone claiming under such witness,
spouse, parent or children.

Recall that in Art 823, if there are 3 other
competent witness attesting, then the said witness,
spouse, parent, children, etc., are not disqualified.


5) Any physician, surgeon, nurse, health
officer or druggist,
Who took care of the testator during
his last illness.

Requisites:
1. The person must have taken care of the
testator. (medical attendance with
regularity or continuity)
2. During the latters final illness.



6) Individuals, associations, corporations
Not permitted by law.

Note: Unlike #1-5 which applies only to
testamentary succession, #6 applies to all kinds of
succession.


ART 1028.

The prohibitions mentioned in Art. 739,
concerning donations inter vivos

shall apply to testamentary dispositions.

The following people are disqualified under Art
739, from receiving testamentary dispositions
only from the parties specified therein.

1. Those made between persons who are
guilty of adultery, or concubinage at the
time of the donation.
2. Those made between persons found guilty
(conviction) of the same criminal offense, in
consideration thereof.
3. Those made to a public officer or his wife
(spouse), descendants, and ascendants, by
reason of his office.
- 70

ART 1029.

Should the testator dispose of the whole or
part of his property (What are the requsites:)
a) for prayers and pious works for the
benefit of his soul
b) in general terms and without specifying
its application

executor, with the court's approval, shall
deliver: (How to apportion the disposition:)

1. thereof or its proceeds to the church
or denomination to which the testator
may belong, to be used for such
prayers and pious works, and
2. the other to the State, for the
purpose mentioned in Art 1013.


ART 1030.

Testamentary provisions
a) in favor of the poor in general,
b) without designation of the particular
persons or of any community,

shall be deemed limited to the:
poor living in the domicile of the
testator at the time of his death,
unless, it should clearly appear that his
intention was otherwise.

A. The designation of the persons who are to be
considered poor
B. The distribution of the property,

Shall be made by: (How do you choose the poor?)

1. the person appointed by the testator for
the purpose, in default of such person,
(Primary Rule: Testators Wish)
2. the executor, or in his default,
3. the justice of the peace, the mayor and the
municipal treasurer who shall decide by
a majority of votes all questions that may
arise. (This will never operate, since there will
always be an executor/administrator of the
estate.)

in all these cases, the approval of the CFI
shall be necessary.

The preceding paragraph shall apply when the
testator has disposed of his property in favor of
the poor of a definite locality.

ART 1031.

A testamentary provision
in favor of a disqualified person, even
though
1. made under the guise of an onerous
contract, or
2. made through an intermediary,
shall be void.
ART 1032.

The following are incapable of succeeding by
reason of unworthiness: (What are the grounds
for unworthiness to succeed?)

1) Parents who:
a) have abandoned their children, or
b) induced their daughters to lead a
corrupt or immoral life, or
c) attempted against their virtue.


2) Any person who has been convicted of an
attempt against the life of the:
testator,
his or her spouse,
ascendants or descendants


3) Any person who has accused the testator:
of a crime for which the law prescribes
imprisonment for 6 years or more,
if the accusation has been found
groundless.


4) Any heir of full age, who
having knowledge of the violent
death of the testator,
should fail to report it to an officer
of the law (within one month)
unless the authorities have already
taken action.

This prohibition shall not apply to cases
wherein, according to law, there is no
obligation to make an accusation.

Note: this item cannot be operative since there is
no such obligation under present law.


5) Any person convicted of adultery or
concubinage with the spouse of the
testator.


6) Any person who by Fraud, Violence,
Intimidation, or Undue Influence,

should cause the testator to make a will or
to change one already made.


7) Any person who by the same means
(a) prevents another from making a will,
or
(b) from revoking one already made, or
(c) who supplants, or
(d) conceals, or
(e) alters the latter's will.

SUCCESSION (BALANE) CHAMP 2004
Notes - 71 -

8) Any person who falsifies
or forges a supposed will of the decedent.

*Note: all these items (#1-8) apply to all kinds of
succession.

What is the effect of unworthiness?
Total disqualification.
Incapacitated to succeed by any form of
succession!
Thus unworthiness and disinheritance have
identical effects. Unworthiness is disinheritance
imposed by law.



ART 1033.
REVOCATION OF UNWORTHINESS

The causes of unworthiness shall be without
effect: (How may an heir be restored to capacity?)
(When will the unworthiness be set aside?)

1. if the testator had knowledge thereof
at the time he made the will
(additionally, the will must also either
institute the formerly unworthy heir, or
restore him to capacity) , or
2. if having known of them subsequently,
he should condone them in writing.


How do you reconcile unworthiness and
disinheritance as regards Restoration to Capacity?
Under the rules on
Disinheritance
Under the rules on
Unworthiness
-a subsequent
reconciliation is enough
-either: 1) written
pardon, or 2)
subsequent will
-reconciliation is not
enough
Overlap of Rules: Remedy

a) If the offended party does not make a will
subsequent to the occurrence of the cause
Unworthiness sets in
Written condonation is necessary to restore.

b) if the offended party makes a will subsequent to
the occurrence of the cause
If he knew the cause If he did not know
the cause
-If he disinherits - Art
922
-If he institutes or
pardons the offender
- restored to capacity
-If will silent -
unworthiness stays.
-unworthiness stays.






ART 1034.

In order to judge the capacity of the HDL,
his qualification at the time of the death
of the decedent,
shall be the criterion.

In cases falling under #2,3,5 of Art 1032
(grounds for unworthiness),
it shall be necessary to wait until final
judgment is rendered, and

In case falling under #4,
the expiration of the month allowed for the
report.

If the institution, devise or legacy should be
conditional,
the time of the compliance with the condition
shall also be considered.


When should you determine capacity to succeed?
1) Generally, at the time the decedent dies.
2) If the institution is subject to a suspensive
condition:
at the time the decedent dies, AND
at the time the condition happens
3) If final judgment is a requisite for unworthiness,
at the time of final judgment.



ART 1035.

If the person excluded from the inheritance by
reason of the incapacity
should be the child or descendant of
the decedent, AND
should have children or descendants,
the latter shall acquire his right to the
legitime.

The person so excluded shall not enjoy the
usufruct and the administration of the property
thus inherited by his children.


Is there representation in unworthiness?
Yes. Remember the 3 instances?
a) predecease
b) disinheritance
c) unworthiness,
NEVER in renunciation.

To what extent may there be representation?
As to the legitime
As to intestate portion
the person represented may have been entitled
to.

Is there representation in the collateral line?
Yes. If the unworthy heir is a brother or
sister, then his own children (meaning the
nephews and nieces of the decedent), will
represent.
- 72

ART 1036.

a. Alienations of hereditary property, and
b. Acts of administration

Performed by the excluded heir,
before the judicial order of exclusion,

Are valid as to 3
rd
persons who acted in good
faith;

But, the co-heirs shall have a right to recover
damages from the disqualified heir.


What happens to the alienations made by a now
excluded heir?
The validity of the alienation is determined by
the good or bad faith of the transferee (3
rd

party purchaser), not the transferor
(excluded-heir-seller).
In case the alienation is valid, of course, the
transferee has now the right. But, the rightful
heirs also have a right to go after the
excluded-heir-seller for damages.


ART 1037.

The unworthy heir who is excluded from the
succession has the right:
a. to demand indemnity for any expenses
incurred in the preservation of the
hereditary property, and
b. to enforce such credits as he may have
against the estate.

What right is an excluded heir granted?
The right of reimbursement for necessary
expenses.
Even if he was in bad faith.


ART 1038.

Any person incapable of succession, who
disregarding the prohibition stated in the
preceding articles,
entered into the possession of the
hereditary property
shall be obliged to return it together with its
accessions.

He shall be liable for all the fruits and rents,
he may have received or could have
received through the exercise of due
diligence.

What are the obligations of a disqualified heir (who
took possession in bad faith)?
a) obligation to return, with accessions.
b) Liability for fruits and rents.




ART 1039.

Capacity to succeed is governed by the law of
the nation of the decedent.

What law governs the capacity to succeed?
The law of the decedent,
Not the law of the heir.


ART 1040.

The action for:
a) declaration of incapacity, and
b) for the recovery of the inheritance,
legacy or devise
shall be brought within 5 years
from the time the disqualified person
took possession thereof.

It may be brought by any one who may have an
interest in the succession.




ACCEPTANCE AND REPUDIATION OF
INHERITANCE


ART 1041.

The acceptance or repudiation of the
inheritance is an act which is purely voluntary
and free.

Freedom to Accept or Renounce
The heir has the freedom to accept or
renounce
Whether it be in the form of legitime,
testamentary succession, or intestacy.
This is because it is similar to a donation
which is essentially free and voluntary.
No one can be required to accept a benefit.


Is there retroactivity of acceptance or renunciation?
Yes. This is the Rule on Retroactivity.
This is because of Art 777.

Of Acceptance Of Renunciation Of Conditional
Institutions
-the successor
will be deemed
to have owned
and possessed
the property
from the
precise moment
the decedent
dies.
-the substitute,
co-heir, or
intestate heir
who gets the
property (in
default of the
renouncer) is
deemed to
have owned
and possessed
the property
the moment
the decedent
dies.
-Upon
happening of
the condition
the property
passes to the
heir but with
retroactive
effect.

It is not
overridden
even if the
institution is
subject to a
SUCCESSION (BALANE) CHAMP 2004
Notes - 73 -


Meanwhile, the
renouncer is
deemed never
to have owned
or possessed
the property at
all.
suspensive
condition.

*Only that the
property is
placed under
administration
in the
meantime.


Time for Acceptance/ Renunciation

When should there be acceptance or renunciation?
ART 1043: No person may accept or repudiate
an inheritance, unless he is certain of:
1) the death of the person from whom he
is to inherit, AND
2) of his right to the inheritance.

What is the basis for this rule?
Art 777

ART 1057: Within 30 days
after the court has issued an order for
the distribution of the estate

the HDL shall signify to the court having
jurisdiction

whether they accept or repudiate the


inheritance.

If they do not do so within that time, they
are deemed to have accepted the inheritance.
Here, silence = acceptance.


Irrevocability of Acceptance or Renunciation

ART 1056: The acceptance or repudiation of an
inheritance, once made
is irrevocable, and
cannot be impugned,

Except:
when it was made through any of the
causes that vitiate consent, or
when an unknown will appears.

Who may accept or renounce?
PERSON
INHERITING /
BENEFITING
PERSON WHO CAN ACCEPT OR
RENOUNCE
1. People in
General
ART 1044: Any person having
the free disposal of his property
may accept or repudiate an
inheritance.

-capacity to act is required for
personal acceptance and
renunciation.
-an agent, when authorized, may
accept, in behalf of his principal.


1a. An Heir In
General.
ART 1053: If
the heir
should die

Without having accepted or
repudiate the inheritance

his right shall be transmitted
to his heirs.
*Obviously, this will apply only if
the heirs heir accepts.

ART 1054: Should there be
several heirs called to the
inheritance, some of them may
accept and the others may
repudiate. (see book)

2. ART 1044:
Any
inheritance
left to minors
or
incapacitated
persons,
May be
accepted by:
By their
parents, or
guardians.
May be
repudiated
by:
Their parents
or guardians,
only by
judicial
authorization.

3.Testamentary
Grants to the
Poor
May be accepted
only by the
persons in Art
1030 ,

Or

The poor persons
selected as
recipients.

May be
repudiated by:
The poor
persons
selected as
recipients
4. ART 1045:
Corporations,
Associations,
Institutions,
Entities
(when
qualified to
acquire
property

The lawful
representatives
may accept any
inheritance left
to the latter,
But in order
to repudiate
it, the
approval of
the court
shall be
necessary.
5. The
Government.
ART 1046: Public official
establishments can neither
accept nor repudiate an
inheritance without the
approval of the government.

6. Married
Person
ART 1047: A married person of
age, and not incapacitated for
any reason, may accept or
renounce an inheritance
without his or her spouse'
consent.

7. Literate
Deaf-Mute
ART 1048: Deaf-mutes who can
read and write, may accept or
repudiate the inheritance
Personally, or
Through an agent.

- 74

8. Illiterate
Deaf-Mute

ART 1048:
Should they
not be able to
read and
write,
ACCEPTANCE
The
inheritance
shall be
accepted by
their
guardians.
RENOUNCE
These
guardians may
repudiate the
same, with
judicial
approval.


How can ACCEPTANCE be made?
1. Express
Acceptance
ART 1049: An express acceptance
may be made in a public or private
document.

2. Tacit
Acceptance
ART 1049: A tacit acceptance is
one resulting from acts:
a. By which the intention to
accept is necessarily implied,
or
b. By which one would have no
right to do except in the
capacity of the heir.

What is tacit acceptance?
Acts revealing an intent to
accept.
Inferred from acts of ownership
performed by the heir over the
property.

What is not a tacit acceptance?
Acts of mere preservation or
provisional administration
do not imply an acceptance of
the inheritance if through such
acts:
title or capacity of an heir has
not been assumed.

What are examples of tacit
acceptance?
ART 1050
3. Implied
Acceptance
ART 1057:
If the heirs do not signify to the Court
whether they accept or renounce the
inheritance within 30 days after the
court has issued an order for the
distribution of the estate,
they are deemed to have accepted
the inheritance.


ART 1050.
-these are examples of tacit acceptance.

An inheritance is deemed accepted:
1. If the heir Sells, Donates, or Assigns his right
to a
stranger, or
to his co-heirs, or
to any of them.

onerous or gratuitous
in favor of one, some or all of co-heirs

2. If the heir, Renounces the same, even
though gratuitously,
for the benefit of one or more of his co-
heirs.

gratuitous
in favor of one, some only, or

2a.
gratuitous
in favor of all provided it is NOT
INDISCRIMINATELY BUT in different proportions.


3. If he Renounces it for a price
in favor of all of his co-heirs
indiscriminately

onerous
in favor of all indiscriminately.


But, if this renunciation should be gratuitous,
the co-heirs in whose favor it is made are those
upon whom the portion renounced should
devolved by virtue of accretion
the inheritance shall NOT be deemed as
accepted.


What is the true case of renunciation?
Gratuitous renunciation in favor of the co-
heirs indiscriminately.
Renunciation in favor of all the co-heirs who
would get the renounced portion by virtue of
accretion.


Rule for Renouncement/ Renunciation

How should renunciation or renouncement be made?
ART 1051: The repudiation of an inheritance
shall be made
a. in a public or authentic instrument, or
b. by petition presented to the court
having jurisdiction over the
testamentary or intestate proceedings.


Rule on Renouncement Prejudicial to Creditors

ART 1052.

If the heir repudiates the inheritance to the
prejudice of his own creditors,
the latter may petition the court to authorize
them to accept it in the name of the heir.

The acceptance shall benefit the creditors only
to the extent sufficient to cover the amount of
their credits.

The excess (should there be any), shall in no
case pertain to the renouncer,
but shall be adjudicated to the persons to
whom it may belong.
SUCCESSION (BALANE) CHAMP 2004
Notes - 75 -


This is the instance of accion pauliana
The creditors have the right to impugn or set
aside contracts, transactions and dispositions
which will prejudice or defraud them.
This will only apply if they the debtor has no
other properties with which to pay.
The right of the creditor to make the heir
accept the inheritance extends only to the
amount or value needed to satisfy the credit.
Any amount in excess of that is considered
validly renounced.


ART 1055.

If a person who is called to the same
inheritance as an heir
by will AND
ab intestato,
repudiates the inheritance in his capacity as
a testamentary heir

he is understood to have repudiated it in both
capacities.

Should he repudiate it as an intestate heir,
without the knowledge of his being a
testamentary heir,

he may still accept it in the latter
(testamentary) capacity.


What happens if a person is both testamentary HDL,
and is also a intestate heir, with respect to the same
inheritance?
RENOUNCES AS
TESTAMENTARY
HDL
RENOUNCES AS INTESTATE
HEIR
- he is deemed
to have
renounced the
intestate heir
as well.
With
Knowledge
of being a
testamentary
heir
Without
Knowledge
of being a
testamentary
heir
-disputed:
-but it seems
that he can
still accept
as
testamentary
heir.

- he is not
deemed to
have
renounced
as
testamentary
heir (may
still accept
it)
Rationale: The testamentary disposition is the
express will of the testator, whereas, intestacy is
only his implied will. One who renounces the
express will is deemed to have renounced also the
implied will, but not vice versa.

Note: this applies only if both testamentary and
intestate heir.




In case both a testamentary and compulsory heir?
he can accept either or both.
legitime passes by strict operation of law,
irrespective of the decedents wishes.


ART 1058-1060.
RULE ON EXECUTORS AND
ADMINISTRATORS. (see book). (see book)



COLLATION

What is collation?
It has several meanings.
Collation as
Computation
Just a simple accounting or
arithmetical process,
whereby the value of all
the donation inter vivos
made by the decedent is
added to the available
assets in order to arrive at
the value of the net
hereditary estate (this is
the 3
rd
step in Article 908.)

Collation as
Imputation
Process whereby the
donations inter vivos are
charged either to the
donees legitime or against
the disposable portion.
(This is article 909-910.)

Collation as
Return
Takes place when the
donation inter vivos is
found to be inofficious (or
exceeds the disposable
portion), and so much of
its value as is inofficious is
returned to the estate to
satisfy the legtimes. (This
is also article 909-910.)



ART 1061.
(as computation)

Every compulsory heir, who succeeds with
other compulsory heirs,
must bring into the mass of the estate
any property or right which he may
have received from the decedent
during the lifetime of the decedent,
by way of donation or any other
gratuitous title

in order that it may be computed
in the determination of the legitime of
each heir,
and in the account of the partition.



- 76

What should be included in the computation for the
purpose of determining the value of the net estate?
ALL donations inter vivos,
Whether made to compulsory heirs or to
strangers (non-compulsory heirs).
This is because every donation is imputable to
either the legitime or the free portion.
You compute only the value of the property
donated at the time the donation was made.



ART 1062.
(as imputation)

Collation shall not take place among
compulsory heirs,
1. if the testator should have so expressly
provided, or
2. if the donee should repudiate the
inheritance
Unless the donation should be reduced
as inofficious.


How are these donations imputed?
TO COMPULSORY HEIRS TO STRANGERS
GR: Imputable to the
heirs legitime, because
a donation is considered
an advance on legitime.
Always to the free
portion.
EXCEPT:
1. If donor provides
otherwise,
2. If the donee
renounces (gives up
status as
compulsory heir)
3. The donation
exceeds the legitime
(as to the excess)

In which cases, the
donation is imputable to
the free portion.



ART 1063.
(as imputation)

Property left by will is not deemed subject to
collation
if the testator has not otherwise
provided
but the legitime shall in any case remain
unimpaired.


How are testamentary dispositions to compulsory
heirs imputed?
GR: Imputed to the free portion.
EX: If the testator provides otherwise.




ART 1064.
(as imputation)

When the grandchildren (who survive with
their uncles, aunts, cousins)
inherit from the grandparents in
representation of their father or
mother,

they shall bring to collation all that their
parents, if alive, would have been obliged to
bring,
even though such grandchildren have not
inherited the property.

They shall also bring into collation,
all that they may have received from
the decedent during his lifetime,
Unless the testator provided otherwise
in which case, his wishes must be
respected,
if the legitime of the co-heirs is not
prejudiced.


X has 3 children A, B, C.
A has 2 children, A1 and A2.

If A predeceases X, A1 and A2 inherit by
representation. The question is:
What must the grandchildren (A1 & A2) impute to
their inheritance?
a) Whatever the parent whom they are
representing would have been obliged to collate,
and
(Whatever donation X made to A, their
parent)
b) Whatever they themselves have received from
the grandparent by gratuitous title.
(Whatever A1&A2 received from X)
Even if X and A1&A2 are non-compulsory
heirs of each other!!


ART 1065.
(as imputation)

Parents are not obliged to bring to collation
In the inheritance of their ascendants,

Any property which may have been donated by
the latter to their children.


What happens if grandpa donated property to
grandson? Should the parent collate to grandpas
estate?
The parent should not collate what grandpa
gave to his (parents) son since he was not
the recipient of the conveyance.
Since the donation was made to a stranger, it
should be imputed to grandpas free portion
of the estate.



SUCCESSION (BALANE) CHAMP 2004
Notes - 77 -

ART 1066.
(as imputation)

Neither shall donations to the spouse of the
child be brought to collation.

But if they have been given by the parent to the
spouses jointly,
the child shall be obliged to bring to collation
of the thing donated.


What happens if parent donated property to
daughter-in-law?
The donation to the daughter-in-law is her
separate property, and should NOT be
imputed to the sons (husband) legitime.
The donation is made to a stranger and
therefore imputable to the free portion of the
parents estate.


What if the donation is made by parent to the
spouses jointly (the son and the daughter-in-law)?
Then of the donation belonged to the
son imputable to the sons legitime.
The other is still a donation to a stranger
imputable to the free portion.


ART 1067.
(as computation)

Expenses for
Support,
Education,
Medical attendance, even Extraordinary
illness,
Apprenticeship,
Ordinary equipment, or
Customary gifts,
shall not be subject to collation.


ART 1068.
(as imputation)

Expenses incurred by the parents in giving
their children a Profession or Vocation or Other
Career
shall not be brought to collation,

Unless:
1. the parents so provide, or
2. they impair the legitime

But when their collation is required,
the sum which the child would have spent if
he had live in the house and company of his
parents shall be deducted therefrom.


General Rule: Expenses for "support should not
even be included in the computation of the estate.
(Imagine, you will account for every cup of rice you
ate and every medicine you took!)

Exception: Expenses for "professional, vocational
and other career (ex. law school!). They are
chargeable to the free portion.
Unless, the parents provide otherwise.


What happens if the parents provide otherwise? That
my law school expenses will be charged to my
legitime?
Then the child (me) is entitled to deduct the
sum corresponding to what the parents would
have spent on him had he stayed at home
and loafed.

ART 1069.
(as imputation)

Any sums paid by a parent:
in satisfaction of the debts of his
children,
election expenses
fines,
similar expenses
shall be brought to collation.

Why?
Because they are considered donations to the
child!
So they are generally imputable to the
legitime, unless. (Art 1062).


ART 1070.
(as imputation)

Wedding gifts by parents and ascendants
consisting of:
jewelry
clothing, and
outfit

shall not be reduced as inofficious, except
insofar as they may exceed 1/10 of the sum
which is disposable by will.


What if the parents gave you wedding gifts? How
shall it be imputed?
The gifts will still be imputed to the free
portion, after all, the parents may give the
entire free portion as wedding gift!
The value imputed will be to the extent of
1/10 of the free portion. Beyond that value,
the excess will be imputed to the childs
legitime.
Ex. 1,000,000- free portion.
300,000 - wedding gift.

1/10 of the free portion = 100,000 impute
to the free portion.

Balance: 200,000 impute as legitime.



- 78

ART 1071.
(as computation and as imputation)

The same things donated are not to be brought
to collation and partition
BUT only their value at the time of the
donation,
even though their just value may not then
have been assessed.

Their subsequent increase or deterioration, and
even their total loss or destruction (be it
accidental or culpable)
shall be for the benefit or account and risk of
the donee.

In general, since we only look at the values in
collation, what value should be computed and
imputed?
Compute (in the estate) - the value of the
thing donated at the time the donation was
made.
Impute (against the free portion or the
legitime) - the value of the thing donated at
the time the donation was made.

Why?
Because donation transfers ownership to the
donee upon acceptance, any decrease or
increase in value in the thing donated should
be for the donees account.


IMPERIAL VS. CA
A claim for legitime does not amount to a
claim for title. In Vizconde vs. CA, what is brough to
collation is not the donated property itself, but the
value of the property at the time it was donated. The
rationale for this is that the donation is a real
alienation which conveys ownership upon its
acceptance, hence any decrease or increase in value
is for the account of the donee.

Therefore, the prescriptive period for an action for
reduction of an inofficious donation is 10 years,
since it is an action upon an obligation created by
law. From when is this 10 year period counted? The
cause of action to enforce a legitime accrues upon
the death of the decedent, since it is only then that
the net estate may be ascertained and the legitimes
be determined.


ART 1072.
(as computation and as imputation)

In the collation of a donation made by both
parents,
shall be brought to the inheritance of
the father,
the other to that of the mother.

That given by ONE alone shall be brought to
collation in his or her inheritance.


ART 1073.
(as imputation) What should the heirs receive?

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


This applies when the donee is a compulsory
heir, not a stranger.
This article requires that equivalence in amount,
kind of property that compulsory heirs should
receive.
Of course, the compulsory heirs may agree
among themselves.


ART 1074.
(What should the heirs receive in case equality
cannot be obtained?)

Should the provisions of the preceding article
by impracticable,

if the property
donated was
immovable,
If the property is
movable,

1. the co-heirs shall
be entitled to
receive its
equivalent in cash
or securities
at the rate of
quotation

2. Should there be
neither cash or
securities in the
estate
so much of the
other property
as may be
necessary
shall be sold
at a public
auction.

1. the co-heirs shall
only have the
right to select an
equivalent of
other personal
property of the
inheritance at its
just price.



ART 1075.
(as return)

The fruits and interest of the property subject
to collation
shall not pertain to the estate except from
the day on which the succession is opened.

For purpose of ascertaining their amount,
The fruits and interest of the property of the
estate of the same kind and quantity as that
subject to collation
shall be made as the standard of
assessment.
SUCCESSION (BALANE) CHAMP 2004
Notes - 79 -

What if the donation turns out to be inofficious?
Of course the donee should return the
donated property to the estate.
The fruits and interests accruing from the
time of the decedents death should also be
returned. This is because it is from that time
that the rightful heirs should have acquired it.

If donation totally
inofficious
If donation partially
inofficious
-return entire fruits -return only a pro-rated
amount of fruits and
interests


ART 1076.
(as return)

The co-heirs are bound to reimburse to the
donee
the necessary expenses which he has
incurred for the preservation of the
property donated to him
though they may not have augmented
its value.

The donee who collates in kind an immovable
which has been given to him
must be reimbursed by co-heirs for the
improvements
which may have increased the value of
the property, and
which exist at the time of the partition.

As to the works made on the estate for mere
pleasure of the donee,
no reimbursement is due him for them
he has however, the right to remove
them if he can do so without injuring
the estate.

So now, the donation turns out to be inofficious, and
the donee should return the property donated.
However, is he entitled to reimbursement on
expenses he made to the property?

TOTAL
RETURN
PARTIAL
RETURN
NECESSARY
EXPENSES
Yes. Reimburse
to the full
extent.
Yes.
Proportional to
the value to be
returned.
USEFUL
EXPENSES
Yes. Reimburse
to the full
extent (if the
thing is still
there.)
Yes.
Proportional to
the value to be
returned.
ORNAMENTAL
EXPENSES
No. Thats for
the donees
account. (But
donee can
remove it,
provided no
injury to the
property)
No. But, if the
ornament is
located in the
portion which
will not be
returned
(donees
portion), then
its the donees.
ART 1077.

Should any question arise among the co-heirs
upon the obligation to bring to
collation, or
as to the things which are subject to
collation,
the distribution of the estate shall NOT be
interrupted, provided adequate security is
given.




PARTITION AND DISTRIBUTION OF ESTATE

When do you partition?
Only if theres a net estate remaining. You
partition only if theres really an estate (when
the assets still more than the debts)
And Of course only if there is more than 1
heir!

What is partitioned?
The mass of properties.
The net estate, after all the debts are paid,
and the donations are collated.
The immediate effect of the decedent death
is a co-ownership of the heirs over the entire
mass of properties.
This co-ownership lasts until there has been
partition.


How may partition be done?
*either may be availed with or without a will.
1) extra-judicial agreement among heirs,
but this happens only if there are no
more debts to be paid, and
the heirs agree on a partition
2) judicial proceedings.


ART 1078.

Where there are two or more heirs,
the whole estate of the decedent is (before
its partition)

owned in common by such heirs,
subject to the payment of debts of the
deceased.


ART 1079.

Partition in general
is the separation, division and
assignment
of a thing held in common
among those to whom it may belong.

The thing itself may be divided, or its value.



- 80

*Note: even if partition is made years later,
remember that succession rights vest at the time of
the decedents death, and the heirs are deemed to
have acquired the property at that time.

Kinds of Partition:
Actual Physical division of the thing

Constructive Any other act which terminates the
co-ownership.

Art 1082 - sale, exchange,
compromise
Art 1086 - sale then divide
proceeds


ART 1080.

Should a person make a partition of his estate
by
an act inter vivos, or
by will,
such partition shall be respected
in so far as it does not prejudice the legitime
of the compulsory heirs.

A parent who,
in the interest of his or her family,
desires to keep any agricultural,
industrial or manufacturing enterprise
intact,
may avail himself of the right granted him in
this article, by

ordering that the legitime of the other
children to whom the property is not
assigned,
be paid in cash.


Can the decedent himself effect the partition? How?
Yes.
1) by making a will (but this is not a
testamentary disposition) , or
2) by act inter vivos (such as sale)
but this should be in writing and in
a public instrument [FAJARDO VS.
FAJARDO]
it must observe the formalities of a
will. [LEGASTO VS. VERSOZA]
but an oral partition is also valid
[CHAVEZ VS. IAC]

But this partition:
a) takes effect only upon his death, and
b) is revocable as long as he is alive.
c) the legitimes of the compulsory heirs
should not be impaired.


LEGASTO VS. VERSOZA
A testator may, by act inter vivos, partition his
property, but he must first make a will with all the
formalities provided for by law. The idea is to divide
the estate among the heirs designated by the
testator. This designation constitutes the disposition
of the properties, and hence must necessarily appear
in the testament since it is an expression of the
testators last will.

There is therefore a necessity of a prior will, before
making the partition. A condition for the testator in
partition his estate by an act inter vivos, is that he
have made a valid will disposing of said estate
among his heirs. If this will is nullified, then the
partition itself is also nullified.


Note:
the Legasto case was based on the Spanish
Code. Now Art 1080 does not say "testator
but "person
It not longer applies under present rules.


Can the predecessor make a partition without a will?
Now, the answer is yes.
A partition inter vivos can be validly made
even without a prior will provided, it is not
used to make mortis causa dispositions.
You can just put it in a simple document.
In other words, by following strictly the
intestate portions and legitimes provided for
by law. The partition should conform exactly
to the portions under the rules on intestacy
and legitimes.
Hence, the dispositions should be by virtue of
intestate and compulsory succession.


ART 1081.

A person may,
by an act inter vivos or mortis causa
entrust the mere power to make the
partition after his death
to any person who is not one of the co-
heirs.

The provisions of this and of the preceding
article shall be observed
even should there be among the co-
heirs
a MINOR or a PERSON SUBJECT TO
GUARDIANSHIP;

But the mandatary, in such case,
shall make an inventory of the property
of the estate,
after notifying the co-heirs, the
creditors, and the legatees and
devisees.

*A mandatary - the person entrusted to make a
partition - cannot be a co-heir to ensure fairness and
impartiality.





SUCCESSION (BALANE) CHAMP 2004
Notes - 81 -

ART 1082:

Every act which is intended to put an end to
indivision among co-heirs and legatees or
devisees
is deemed to be partition.

Even though it should purport to be
a sale,
an exchange,
a compromise, or
any other transaction.


TUASON VS. TUASON
The agreement was that the co-owners would
improve the property and construct roads and then
subdivide it into small lots for sale. In return, they
would receive the gross selling price and the rents
that may be collected from the property.

The contract itself has for its purpose and object, the
dissolution of the co-ownership by selling the lots
owned in common and dividing the proceeds of the
sale among the co-heirs.

The obligation in the contract to preserve the co-
ownership until all the lots shall have been sold, is
merely an incident to the main object of dissolving
the co-ownership.


ART 1083.

Every co-heir has a right to demand division of
the estate,
unless the testator should have
expressly forbidden its partition.
in which case, the period of
indivision shall not exceed 20 years, as
provided in Art 494.

This power of the testator to prohibit
division applies to the legitime.

Even though forbidden by the testator, the co-
ownership terminates,
a) when any of the causes for which
partnership is dissolved takes place, OR
b) when the court finds for compelling
reasons that division should be
ordered, upon petition of one of the co-
heirs.


GR: Partition is a matter of right.
EX: When indivision is imposed by: (no partition)
a) the testator himself - 20 years max.
b) the co-heirs agree - 10 years max.
EX to the EX: (insist partition even if indivision)
a) when any of the causes for dissolution
of partnership occurs.
b) When the court finds compelling reason


ART 1084.

Voluntary heirs upon whom some condition has
been imposed cannot demand a partition
unless the condition has been fulfilled;

But the other co-heirs may demand it
by giving sufficient security
for the rights which the former may
have in case the condition should be
complied with,

AND, until it is known that the condition
has not been fulfilled, OR
can never be complied with,
the partition shall be understood to be
provisional.


Can the testamentary heirs demand partition where
a suspensive condition is imposed?
Of course not.
They have to wait for the condition to happen
before they can partition.

But can the other heirs demand partition?
Yes.
The heirs not so instituted, may demand
partition, subject to the obligation to protect
the inchoate right of the conditional heir
(above)
So they must provide security.


ART 1085.

In partition of the estate,
equality shall be observed as far as
possible,
dividing the property into lots, or
assigning to each of the co-heirs
things of the same Nature, Kind
and Quality.

How do co-heirs share the partitioned estate?
Quantitatively - depending on the legitimes,
intestate succession, and the will.
Qualitatively -
GR: equally.
EX: 1) when the decedent himself made the
partition.
2) if the co-heirs agree otherwise
3) if equality is impossible.


ART 1086.
When is this form of constructive partition resorted
to?

Should the thing be:
1) indivisible, or
2) would be much impaired by its being
divided,



- 82

it may be adjudicated to one of the heirs,
provided, he shall pay the others the excess
in cash.

Nevertheless,
if any of the heirs should demand that
the thing be sold at a public auction,
and
that strangers are allowed to bid.
this must be done.


To whom may the thing be sold?
a) to a stranger, third person
b) to any one of the co-heirs if none of them
object


ART 1087.

In the partition, the co-heirs shall reimburse
one another
1. for the income and fruits which each
one of them may have received from
any property of the estate,
2. for any useful and necessary expenses
made upon such property, and
3. for any damage thereto through malice
or neglect.


ART 1088.

Should any of the heirs sell his hereditary
rights to a stranger before the partition,
any or all of the co-heirs may be subrogated
to the rights of the purchaser
by reimbursing him for the price of the
sale,
provided they do so within the period
of 1 month from the time they were
notified in writing of the sale by the
vendor.

Can the heir sell his share even before partition?
Yes. He can dispose his aliquot share
gratuitously or onerously.
Since successional rights vest at the moment of
the decedents death.

Can the other co-heirs redeem the portion sold?
Yes. But they can do so only before partition,
and within 1 month from notice by the
vendor.
These co-heirs should be notified in writing by
the selling heir. Otherwise, the period does
not commence to run.

So the right to redeem may be exercised only within
1 month from notification. Is written notification
required?
In [GARCIA VS. CALALIMAN], written notice is
required, even if theres already a registration
of the deed of sale with the Register of
Deeds. (actual notice). Written notice is
indispensable.
In [ALONZO VS. CA] [DISTRITO VS. CA], the
rule was relaxed, and actual notice to or
knowledge by the co-heir of the sale is
sufficient.

ART 1089.

The titles of acquisition or ownership of each
property
shall be delivered to the co-heir to
whom said property has been
adjudicated.


ART 1090.

When the title comprises 2 or more pieces of
land,
which have been assigned to 2 or more
co-heirs, or
When it covers 1 piece of land
which has been divided between 2 or
more co-heirs,

the title shall be delivered to the one having
the largest interest,

AND, authentic copies of the title shall be
furnished to the other co-heirs, at the expense
of the estate.

If the interest of each-co-heir should be the
same,
the oldest shall have the title.


ART 1091.

A partition legally made,
confers upon each heir
the exclusive ownership of the property
adjudicated to him.


ART 1092.
Obligation of Mutual Warranty

After the partition has been made,
the co-heirs shall be reciprocally bound
to warrant
a) the title to, and
b) the quality of,
each of the property adjudicated.


ART 1093.

The reciprocal obligation of warranty
referred to in the preceding article
shall be proportionate to the respective
hereditary shares of the co-heirs;

But if any one of them should be insolvent,
The other co-heirs shall be liable for his
part in the same proportion,
SUCCESSION (BALANE) CHAMP 2004
Notes - 83 -

Deducting the part corresponding to
the one who should be indemnified.

Those who pay for the insolvent heir shall have
the right of action against him for
reimbursement,
should his financial condition improve.


ART 1094.

An action to enforce the warranty among the
co-heirs
Must be brought within 10 years
From the date the right of action
accrues.



ART 1095.
Credit Assigned to Co-heir in Partition.

If a credit should be assigned as collectible,
the co-heirs shall not be liable for the
subsequent insolvency of the debtor of the
estate,
but only for his insolvency at the time the
partition is made.

The warranty of the solvency of the debtor
Can only be enforced during the 5 years
following the partition.

Co-heirs do not warrant bad debts,
If so known to and accepted by the
distributee.

But if such debts are not assigned to a
co-heir, and
should be collected in whole or in part
the amount collected shall be distributed
proportionately among the heirs.


ART 1096.
Instances when there is no mutual warranty.

The obligation of warranty among co-heirs
shall cease in the following cases:

1) When the testator himself has made the
partition
Or unless it appears or it may be
reasonably presumed,
That his intention was otherwise,
But the legitime shall always remain
unimpaired.
2) When it has been so expressly stipulated in
the agreement of partition
Unless there has been bad faith.
3) When the eviction is due to a cause
subsequent to the partition,
4) has been caused by the fault of the
distributee of the property.


ART 1097.
Can you rescind a partition?

A partition may be rescinded or annulled for
the same causes as contracts.


ART 1098.

A partition, judicial or extrajudicial,
May also be rescinded on account of lesion:
when any one of the co-heirs received
things whose value is less by at least
than the share to which he is entitled,
considering the value of the things at the
time they were adjudicated.


When is there lesion as a ground to rescind partition?
Ex. legitime should be 1,000,000
But upon partition I only got 750,000.
Lesion = 250,000 rescissible!
But, if injury is less than 25% ask for
completion!


ART 1099.

The partition made by the testator cannot be
impugned on the ground of lesion,
EXCEPT:
a) when the legitime of the compulsory heirs
is thereby prejudiced, or
b) when it appears or may reasonably be
presumed, that the intention of the testator
was otherwise.

GR: partition by testator cannot be rescinded,
EX: partition even if by testator rescissible if
a) impair legitimes
b) mistake by testator, vitiation


ART 1100.

The action for rescission on account of lesion
shall prescribe after 4 years from
the time the partition was made.

ART 1101.

The heir who is sued shall have the option of:
1. indemnifying the plaintiff for the less, or
2. consenting to a new partition.

Indemnity may be made:
1. by payment in cash, or
2. by the delivery of a thing of the same
kind, and quality as that awarded to the
plaintiff.

If a new partition is made
it shall affect neither those who have not
been prejudiced, nor
those who have not received more than
their just share.
- 84

Ex. I have 3 co-heirs. My legitime is 100. I only got
75. I can demand rescission. I will sue the other 2
co-heirs. What can they do?
The co-heirs sued have the option of:
a) having a re-partition (give me more
property), or
b) indemnify the suing heir the amount of
lesion suffered (pay me deficiency if all of
them agree)


ART 1102.

An heir who has alienated the whole or a
considerable part of the real property
adjudicated to him
cannot maintain an action for
rescission
on the ground of lesion,
But he shall have a right to be
indemnified in cash.


ART 1103.

The omission of one or more objects or
securities of the inheritance
Shall not cause the rescission of the
partition
On the ground of lesion,
But the partition shall be completed by the
distribution of the objects or securities
which have been omitted.


ART 1104.

A partition made with preterition of any of the
compulsory heirs
Shall not be rescinded,
Unless it be proved that there was bad
faith, or fraud on the part of the other
persons interested,
BUT, the latter shall be proportionately
obliged to pay the person omitted the share
which belongs to him.


What if an heir is mistakenly excluded in the
partition (not preterition)? What can he do?
If omission was in good faith indemnity, he
simply gets his rightful share.
If omission was in bad faith have the partition
annulled.


ART 1105.

A partition which includes a person believed to
be an heir
But who is not,
Shall be void only with respect to such
person.


What if a person is mistakenly included in the
partition?
The property will be taken away from him and
redistributed among the proper recipients.



LEGACIES AND DEVISES


Art. 924.

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

Recall the definitions of legacy and devise.

HEIR LEGATEE OR DEVISEE
-succeed by universal
title
-receives an aliquot or
fractional part
-succeeds by particular
title
-receives specific
property


What may be devised or bequeathed?
Anything within the commerce of man,
It is not required that the thing belong to the
testator.
Provided that it does not impair the legitimes.


Art. 925.

A testator may charge with legacies and
devises
not only his compulsory heirs but
also the legatees and devisees.

The latter shall be liable for the charge
only to the extent of the value of the legacy
or the devise received by them.

The compulsory heirs shall not be liable for the
charge beyond the amount of the free portion
given them.


Who is charged the legacy?
GR: It is the estate. When you make a DL, it is the
burden of the estate of the testator. It is the primary
obligation of the estate through the executor or
administrator.

EX: A testator may impose the burden of DL on
another person. If such other person accepts the
disposition (burden) in his favor, then it will be a
subsidiary legacy or devise. It is essentially a
disposition with a mode. In that case, the burden is
on the estate of the testamentary heir.

Art. 926.

When the testator charges one of the heirs with
a legacy or devise,
he alone shall be bound.

SUCCESSION (BALANE) CHAMP 2004
Notes - 85 -

Should he not charge anyone in particular,
all shall be liable in the same
proportion in which they may inherit.


Art. 927.
What happens if other heirs take the DL?

If two or more heirs take possession of the
estate,
they shall be solidarily liable for the loss or
destruction of a thing devised or
bequeathed,
even though only one of them should have
been negligent.


Art. 928.
Who is liable in case of eviction?

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


Art 929 - 937. Kinds of DL

Legacy/Devise of a Thing Owned In Part by the
Testator
Art. 929. If the testator, heir, or legatee owns
only a part of, or an interest in the thing
bequeathed,
the legacy or devise shall be understood
limited to such part or interest,

Unless the testator expressly declares that he
gives the thing in its entirety.


GR: It conveys only the interest or part owned by
the testator.

EX: If the testator provides otherwise:
Convey More Than He
Owns
Convey Less Than He
Owns
1) the estate should try
to acquire it.

2) If not, estate should
give the DL the
monetary equivalent.
1) He may do so. Art
794.



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

Art. 931. If the testator orders that a thing
belonging to another be acquired
in order that it be given to a legatee or
devisee,
the heir upon whom the obligation is
imposed or the estate
must acquire it and
give the same to the legatee or devisee;

but if the owner of the thing refuses to
alienate the same, or demands an excessive
price therefor,
the heir or the estate shall only be obliged
to give the just value of the thing.

If testator knew he did not own it AND
If testator ordered its acquisition
1) the estate should try to acquire it.
2) If not, estate should give the DL the monetary
equivalent.

If testator thought he owned it, but in reality he
does not own it
DL is void. It was vitiated by mistake.
If testator thought he owned it, but in reality he
does not own it, BUT after making the
disposition, he acquires it onerously or
gratuitously
DL is validated.
If testator knew that he did not own it, BUT did
NOT order its acquisition
1) the estate should try to acquire it.
2) If not, estate should give the DL the monetary
equivalent.



Legacy/Devise of a Thing Already Owned by the DL
or Subsequently Acquired by the DL
Art. 932. The legacy or devise of a thing which
at the time of the execution of the will already
belonged to the legatee or devisee
shall be ineffective,
even though another person may have some
interest therein.


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

If the legatee or devisee acquires it
gratuitously after such time, he can claim
nothing by virtue of the legacy or devise; but if
it has been acquired by onerous title he can
demand reimbursement from the heir or the
estate.

- 86

If thing already owned by the DL at execution of
will
DL void. You cant give something to someone
who already owns it.

Even if the DL later sells it such that at the time of
testators death, DL is no longer the owner, still
void.

If thing owned by another at execution of will,
BUT subsequently acquired by the DL
If testator thought it
belonged to him
If testator knew he
did not own it
DL void. Acquired onerously -
DL entitled to
reimbursement

Acquired gratuitously
- no effect.


If thing owned by testator at execution of will AND
was sold to the DL himself
DL deemed revoked.


Legacy/Devise To Remove an Encumbrance Over a
Thing Belonging to the DL
Art 932. If the testator expressly orders that
the thing be freed from such interest or
encumbrance, the legacy or devise shall be
valid to that extent.

Valid. The estate should remove the encumbrance
for a consideration.


Legacy/Devise of A Thing Pledged or Mortgaged
Art. 934. If the testator should bequeath or
devise something pledged or mortgaged to
secure a recoverable debt before the execution
of the will,
the estate is obliged to pay the debt,
unless the contrary intention appears.

The same rule applies when the thing is
pledged or mortgaged after the execution of
the will.
Any other charge, perpetual or temporary, with
which the thing bequeathed is burdened,
passes with it to the legatee or devisee.

Valid.
GR: The encumbrance must be removed, the estate
paying the debt
Unless: the testator intended otherwise.



Legacy of a Credit or Remission
Art. 935.
a) The legacy of a credit against a third
person or
b) of the remission or release of a debt of the
legatee


Legacy/Devise to a Creditor
Art. 938. A legacy or devise made to a creditor
shall not be applied to his credit,
unless the testator so expressly declares

In the latter case, the creditor shall have the
right to collect the excess, if any, of the credit
or of the legacy or devise.

GR: The DL to the creditor will not be counted as
payment of the debt.
EX: If the testator provides otherwise.







SUCCESSION (BALANE) CHAMP 2004
Notes - 87 -

Testamentary Instruction to Pay A Debt
Art. 939. If the testator orders the payment of
what he believes he owes but does not in fact
owe,
the disposition shall be considered as not
written.

If as regards a specified debt more than the
amount thereof is ordered paid, the excess is
not due, unless a contrary intention appears.
The foregoing provisions are without prejudice
to the fulfillment of natural obligations.

Obviously, this is not a legacy or devise.
It is a mere directive to discharge a civil obligation.



Alternative Legacies
-It is one which provides among several tings
mentioned, only one is to be given. (similar to
alternative obligations)

Art. 940. In alternative legacies or devises,
the choice is presumed to be left to the
heir upon whom the obligation to give the
legacy or devise may be imposed,
or the executor or administrator of the
estate if no particular heir is so obliged.

If the heir, legatee or devisee, who may have
been given the choice, dies before making it,
this right shall pass to the respective heirs
.
Once made, the choice is irrevocable.

In the alternative legacies or devises, except as
herein provided, the provisions of this Code
regulating obligations of the same kind shall be
observed, save such modifications as may
appear from the intention expressed by the
testator.

Who makes the choice?
GR: The debtor of course
In a direct DL In a subsidiary DL
-the estate (E/A)
chooses
-the testamentary heir
chooses
-right to choose
transmissible to the
successor E/A
-right to choose
transmissible to his
own heirs

EX: If the testator provides otherwise, that
the DL himself can choose, or that a 3
rd
party
can choose

The choice is irrevocable.




Generic Legacies
Ex. I give to X a car. I give to A 50 sacks of rice.
(In generic legacies, there is only a specification of
the kind or quality.)

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

A devise of indeterminate real property shall be
valid only if there be immovable property of its
kind in the estate.

The right of choice shall belong to the executor
or administrator who shall comply with the
legacy by the delivery of a thing which is
neither of inferior nor of superior quality.

Art. 942. Whenever the testator expressly
leaves the right of choice to the heir, or to the
legatee or devisee, the former may give or the
latter may choose whichever he may prefer.

Art. 943. If the heir, legatee or devisee cannot
make the choice, in case it has been granted
him, his right shall pass to his heirs; but a
choice once made shall be irrevocable.


GENERIC LEGACY GENERIC DEVISE
Valid. Even if such
movable does not exist
at the time of testators
death.
Valid. Only if the real
property really exists at
the time of testators
death.
This means the state
will have to acquire the
movable.



Who makes the choice?
General Rule Exception
-The estate, through
the E/A.
If the testator provides
otherwise such that the
choice will be made by
the testamentary heir.
-right to choose
transmissible to the
successor E/A
-right to choose
transmissible to his
own heirs


If the testator provides otherwise, that the choice
will be made by the testamentary heir.

Limitation on the choice?
Something which is neither superior or inferior in
quality.
Ex. I give a watch Dont give a P200 watch,
but dont give also a Patek Philippe, or a
Vacheron Constantin. (Give an Omega).

The choice is irrevocable.



Legacy for Education
Art. 944. A legacy for education lasts until
a) the legatee is of age, or
b) beyond the age of majority in order that
the legatee may finish some professional,
vocational or general course, provided he
pursues his course diligently.
- 88


If the testator has not fixed the amount of such
legacies,
it shall be fixed in accordance with the social
standing and the circumstances of the legatee
and the value of the estate.

Until When Do you have to Give Legacy?
1) 18 years old, or
2) completion of the course
*whichever comes later,

How much Legacy do you have to give?
1) that amount fixed by testator, or
2) that which is proper, according to -social
standing of the legatee, and -value of free
portion.



Legacy for Support
A legacy for support lasts
a) during the lifetime of the legatee,
b) if the testator has not otherwise
provided.

If the testator or during his lifetime used to
give the legatee a certain sum of money or
other things by way of support,
the same amount shall be deemed
bequeathed,
unless it be markedly disproportionate to the
value of the estate.

Until When Do you have to Give Legacy?
1) the whole lifetime of the legatee, or
2) that provided by testator.

How Much Legacy to give?
1) that amount fixed by the testator, or
2) that usual amount given to the legatee, or
3) that which is proper, according to -social
standing of the legatee, and -value of free
portion



Legacy of a Periodical Pension
Art. 945. If a periodical pension, or a certain
annual, monthly, or weekly amount is
bequeathed,
the legatee may petition the court
for the first installment upon the death of
the testator, and
for the following ones which shall be due at
the beginning of each period;

such payment shall not be returned, even
though the legatee should die before the
expiration of the period which has
commenced.

When is the Legacy given?
Demandable at the time of the testators death.


Art. 946.

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


Art. 947.

The legatee or devisee acquires a right to the
pure and simple legacies or devises
from the death of the testator, and
transmits it to his heirs.


Art. 948.

If the legacy or device is of a specific and
determinate thing pertaining to the testator,
the legatee or devisee acquires the
ownership thereof upon the death of the
testator,
as well as any growing fruits, or unborn
offspring of animals, or uncollected income;
but not the income which was due and
unpaid before the latter's death.

From the moment of the testator's death, the
thing bequeathed shall be at the risk of the
legatee or devisee,
who shall, therefore, bear its loss or
deterioration, and
shall be benefited by its increase or
improvement,
without prejudice to the responsibility of
the executor or administrator.

Art. 949.

If the bequest should
not be of a specific and determinate
thing,
but is generic or of quantity,
its fruits and interests from the time of the
death of the testator
shall pertain to the legatee or devisee
if the testator has expressly so ordered.
PURE AND
GENERIC
PURE AND
SPECIFIC
SUSPENSIVE
CONDITION
SUSPENSIVE
TERM
Demand:
-upon
testator
death
Demand:
-upon
testator
death
Demand:
-upon
happening
of condition

Demand:
-upon
arrival of
term
Ownership
-if from
testator -
upon
testators
death,

if acquired
from 3
rd

person-
upon
acquisition
Ownership
-upon
testators
death

Ownership
-upon
testators
death, if
condition is
fulfilled
Ownership
-upon
arrival of
term,
retroactive
to the
testators
death
SUCCESSION (BALANE) CHAMP 2004
Notes - 89 -

Fruits:
-upon
selection,
unless
testator
provides
otherwise
Fruits:
-upon
testators
death
Fruits:
-upon
testators
death,
unless
testator
provides
otherwise
Fruits:
-upon
arrival of
term
*note demandability here refers to legal
demandability, not physical demandability, which can
only be made after settlement of estate.


Art. 950.
Rule of Preference in DL!!!

If the estate should not be sufficient to cover
all the legacies or devises,
their payment shall be made in the
following order:

(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator
to be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific,
determinate thing which forms a part of the
estate;
(6) All others pro rata.


Compare Art 950 with Art 911
ART 911 ART 950
Simple Reduction:
1) reduce non-
preferred DL first,
pro-rata
2) then reduce
preferred DL
Complicated Preference
-follow order above (Art
950).
(the first is the last to be
reduced, the last is the
first to be reduced)

When Applicable:
Apply when the legitimes
have been impaired, the
DL exceeded the free
portion
When Applicable:
Apply when the
reduction is due to other
reasons (other than
impaired legitimes)
-no compulsory heirs,
-legitimes already
satisfied through
donations
-arithmetic errors, when
DL exceed the estate!



Art. 951.

The thing bequeathed shall be delivered
with all its accessories and accessories
and
in the condition in which it may be upon
the death of the testator.

*with or without the instruction of the testator.


Art. 952.

1) The heir, charged with a legacy or devise,
or
2) the executor or administrator of the estate,

must deliver the very thing bequeathed if he
is able to do so and
cannot discharge this obligation by paying its
value.

Legacies of money
must be paid in cash,
even though the heir or the estate may
not have any.

The expenses necessary for the delivery of the
thing bequeathed shall be for the account of
the heir or the estate, but without prejudice to
the legitime.


Art. 953.

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

*this is to be done only after debts have been paid,
legitimes have been delivered, and DL have been
computed to check whether they impair the
legitimes.


Art. 954.

What is the rule for Acceptance & Renunciation of
DL?

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

GR: Acceptance must be total or partial.
EX: If the DL is partly onerous and partly gratuitous,
the recipient cannot accept the gratuitous and
renounce the onerous.


Acceptance or Renunciation by Heirs of DL

Should he die before having accepted the
legacy or devise,
leaving several heirs,

some of the latter may accept and the others
may repudiate the share respectively belonging
to them in the legacy or devise.

- 90

Art. 955.

The legatee or devisee of,
two legacies or devises
one of which is onerous

cannot renounce the onerous one and accept
the other.

If both are onerous or gratuitous,
he shall be free to accept or renounce
both, or
to renounce either.

But if the testator intended that the two
legacies or devises should be inseparable from
each other,
the legatee or devisee must either accept
or renounce both.


What is the Rule for 2 DL to 1 Person?
1) The testators instruction, if any, should prevail
first.
2) Gratuitous + Gratuitous = Recipient may:
accept either, renounce the other,
accept both
renounce both
3) Onerous + Onerous = Recipient may:
accept either, renounce the other,
accept both
renounce both
4) Gratuitous + Onerous = Recipient:
Cannot accept gratuitous and renounce
onerous,
Any OTHER combination is allowed.


What is the Rule for DL to a Compulsory Heir also?
The testators instruction, if any, should prevail
first.
If not: Art 955:
Any compulsory heir who is at the same time
a legatee or devisee may :
1) waive the inheritance and accept the
legacy or devise, or
2) renounce the latter and accept the
former, or
3) waive or accept both.


Art. 956.

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





What happens if the DL renounces or is incapacitated
to succeed to the DL?
1. First, follow the substitution, if any.
2. Then, follow accretion,
3. Lastly, follow intestacy.

Art. 957.
When is a DL Revoked By Operation of Law?

The legacy or devise shall be without effect:

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

*transformation

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

*alienation - either onerously or gratuitously
Ex. Testator sells the thing to the DL himself.

What if the testator gets the thing back from the DL
via succession?
GR: Still the DL is revoked, even if the thing
reverts to the testator.
EX: (DL valid, not revoked)
1) when the reversion is caused by the
annulment of the sale because of vitiated
consent (in effect, there really was no
intention to sell it to the DL)
2) when the reversion is cause by redemption in
a sale pacto de retro.


(3) If the thing bequeathed is totally lost
during the lifetime of the testator, or after his
death without the heir's fault. Nevertheless,
the person obliged to pay the legacy or devise
shall be liable for eviction if the thing
bequeathed should not have been determinate
as to its kind, in accordance with the provisions
of Article 928.

*total loss, -provided it occurred before the
testators death
*this is because a total loss of the thing extinguishes
the obligation.






SUCCESSION (BALANE) CHAMP 2004
Notes - 91 -

Art. 958.

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


Art. 959.

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


THE END. champ.reyno 2004