WILLS & SUCCESSION  In the Philippines, money debts are not
Professor: Justice Hofileña transmitted to the heirs nor paid by them.
Book: Ruben Balane
TITLE IV
SUCCESSION
CHAPTER 1. General Provisions
*Article 774. What is Succession?
Succession is a mode of acquisition by virtue of
which the property, rights and obligations to
the extent of the value of the inheritance, of a
person are transmitted through his death to
another or others either by his will or by
operation of law. (n)
Succession as Mode
 Succession is a mode of acquiring
ownership1
 Ownership (when via succession) is
acquired upon the death of the decedent
What Is Transferred in Succession
The transfer in succession includes all of the
transmissible property, rights, & obligations of a
person not extinguished by death.
 If the right is strictly personal (intuitu
personae), it is intransmissible;
 Otherwise, it is transmissible.
Better Version of Art. 774
Succession is a mode of acquisition by virtue of
which –
 The inheritance of a person is transmitted
 Through his death
 To another or others
 Either by his will or by operation of law.
Rules Regarding Pecuniary Obligations
Under the Rules of Court, it is only after the
debts are paid that the residue of the estate is
distributed among the successors.2
1 7 Modes of Acquiring Ownership (Art. 712)
1. Occupation
2. Intellectual creation
3. Law
4. Donation
5. Succession (Intestate and Testate)
6. Tradition
7. Prescription
2 Rule 90, Sec. 1. When the order for the distribution of
residue is made.— When the debts, funeral charges, &
expenses of administration, the allowance to the widow, &
inheritance tax, if any, chargeable to the estate in accordance
with law, have been paid, the court, on the application of the
executor or administrator, or of a person interested in the
estate, & after hearing upon notice, shall assign the residue of
the estate to the persons entitled to the same, naming them
& the proportions, or parts, to which each is entitled, & such
persons may demand & recover their respective shares from
the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the
court as to who are the lawful heirs of the deceased person or
as to the distributive shares to which each person is entitled
under the law, the controversy shall be heard & decided as in
ordinary cases.
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The estate pays them
 It is only what is left after the debts are
paid that are transmitted to the heirs.
3 Philosophies of Law which Affect Our Law on
Succession (JBL Reyes)
1. Germanic law – the universal heir; the heir
will automatically succeed, stepping into
the shoes of the decedent whether he
wants to or not, acquiring all rights and
obligations of the decedent
2. Spanish law – the universal heir as well;
however, the heir must accept (followed
by Civil Code)
3. Anglo-American law – the heir receives the
estate post-debt; there is first an
administrator, whose purpose is to settle
the estate by settling all debts. The
residue goes to the heir (followed by Rules
of Court).
Creditors Can Only Pursue Against Estate
As a consequence of the above divergent rules,
creditors can only pursue their claims in the
settlement proceedings & not against the heirs
directly.
CASE: UNION BANK V. SANTIBAÑEZ
Facts: FCCC & Efraim entered into loan
agreements wherein Efraim loaned money from
FCCC to purchase tractors, executing
promissory notes issued by himself & his son,
Edward, to evidence the loan. Efraim died
before the debt to FCCC was fully paid. During
the testate proceedings that followed after, his
two kids, Edward & his daughter, Florence,
executed a Joint Agreement & divided the
tractors between themselves. Meanwhile, Union
Bank, assignee of Efraim’s debt to FCCC, filed a
complaint for sum of money against Efraim’s
ancestors, but was only able to implead
Florence. The lower courts, however, denied the
complaint, & held that Union Bank should have
filed its claim in the probate proceedings for the
settlement of Efraim’s estate, given that Union
Bank was aware of the proceedings. Is this
contention valid?
Held: YES. The loan was contracted by the
decedent. Union Bank, purportedly a creditor of
the late Efraim, should have thus filed its money
claim with the probate court in accordance with
Sec. 5, Rule 86 of the Revised Rules of Court. 3
No distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for,
unless the distributees, or any of them, give a bond, in a sum
to be fixed by the court, conditioned for the payment of said
obligations within such time as the court directs.
3 Section 5. Claims which must be filed un- der the notice. If
not filed barred; exceptions.—All claims for money against the
decedent, arising from contract, express or implied, whether
the same be due, not due, or contingent, all claims for funeral
expenses for the last sickness of the decedent, and judgment
for money against the decedent, must be filed within the time
limited in the notice; otherwise they are barred forever,
The filing of money claims against the
decedent’s estate in the probate court is
mandatory, & is meant to protect the estate of
the deceased, allowing the executor or
administrator to examine the validity of all
claims. Otherwise, the claims “are barred
forever, except that they may be set forth as
counterclaims in any action that the executor or
administrator may bring against the claimants.”
Since Union Bank never filed a claim in the
probate court, it can now only go after Efraim’s
son, Edward, co-maker of the note; this is the
bank’s only remaining remedy. It cannot go after
Florence, who is just an heir & has nothing to do
with the debt.
Class Discussion
Q: Can heirs agree to divide specific property
among themselves, agreeing to pay the debt for
the attached loan?
A: No; if there is a money debt, there cannot be
just an extrajudicial partition. The matter must
be settled by a probate court. (Union Bank v.
Santibañez)
Only Payment of Money Debts Affected
Only the payment of money debts has been
affected by the Rules of Court. The transmission
of other obligations not by nature purely
personal follows the rule in Art.774.
CASE: ESTATE OF HEMADY V. LUZON SURETY
Facts: Luzon Surety Co. filed a claim against
Hemady’s estate based on 20 different
indemnity agreements, or counter bonds, each
subscribed by a distinct principal & also by the
deceased Hemady, a surety solidary guarantor
in all of them, in consideration of the Luzon
Surety Co. guaranteeing the various principals
in favor of different creditors. The lower court
held that Luzon Surety could not file such a
claim, because a guarantor’s obligation is
“personal,” one of the requisites to be made a
guarantor being “integrity,” something purely
personal & non-transmissible. Were the lower
courts correct?
Held: NO. Under the Civil Code the heirs, by
virtue of the rights of succession, are
subrogated to all the rights & obligations of the
deceased (Art. 661) & cannot be regarded as
third parties with respect to a contract to which
the deceased was a party, touching the estate
of the deceased. Art. 1311 may state exceptions
except that they may be set forth as counterclaims in any
action that the executor or administrator may bring against
the claimants. Where an executor or administrator
commences an action, or prosecutes an action already
commenced by the deceased in his lifetime, the debtor may
set forth by answer the claims he has against the decedent,
instead of presenting them independently to the court as
herein provided, & mutual claims may be set off against each
other in such action; & if final judgment is rendered in favor of
the defendant, the amount so determined shall be considered
the true balance against the estate, as though the claim had
been presented directly before the court in the administration
proceedings. Claims not yet due, or contingent, may be
approved at their present value.
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to this rule (i.e., the nature of the obligation,
stipulation, or the law),4 but none of them apply
here. The nature of the obligation of a guarantor
does not warrant the conclusion that his
peculiar individual qualities are contemplated as
a principal inducement for the contract. Going
through the exceptions to the general rule on
relativity & naming why they are not applicable
in this case, the ff. are the reasons why
Hemady’s being a guarantor is not an exception
to the general rule –
 As to the nature - Luzon Surety’s principal
demand is nothing more than the
reimbursement of money, & a payment of
a sum of money, being an obligation to
give, is not purely personal. The contract
between the parties, on the other hand,
makes no express statement on the non-
transmissiblity either.
 As to stipulation – There is no express
stipulation to this effect, so this cannot be
claimed as exception.
 As to law – The law requires integrity to be
present only at the time of the perfection
of the contract, not thereafter.
CASE: ALVAREZ V. IAC
Facts: The Yanes siblings inherited Lot 773 from
their father. They left the area due to WW2, but
when they returned, Alvarez was occupying a
portion of their lot. They thus filed a complaint
for recovery of the property against Alvarez.
Meanwhile, the latter & his co-possessors,
Santiago et al., were able to get a TCT issued in
their favor, & had sold the lot to Siason.
Eventually, the courts ruled for Siason in terms
of ownership, but obligated the heirs of the
original Alvarez (who had since died) to
reimburse the Yaneses. Alvarez’ heirs were thus
asked to pay the costs of the suit to the
Yaneses. They protested, claiming they should
not be made to pay for their ancestor’s debt.
They contend that the liability arising from the
sale of the lots to Siason should be the sole
liability of the late Alvarez or of his estate, after
his death. Is this correct?
Held: NO. Such contention is untenable for it
overlooks the doctrine obtaining in this
jurisdiction on the general transmissibility of the
rights and obligations of the deceased to his
legitimate children & heirs. Petitioners being the
heirs of the late Alvarez, they cannot escape the
legal consequences of their father’s transaction,
which gave rise to the present claim for
damages. That petitioners did not inherit the
property involved herein is of no moment
because by legal fiction, the monetary
equivalent thereof devolved into the mass of
4 Art. 1311. Contracts take effect only between the parties,
their assigns & heirs, except in case where the rights &
obligations arising from the contract are not transmissible by
their nature, or by stipulation or by provision of law. The heir
is not liable beyond the value of the property he received from
the decedent.
xxx
their father’s hereditary estate, and we have
ruled that the hereditary assets are always
liable in their totality for the payment of the
debts of the estate. It must, however, be made
clear that petitioners are liable only to the
extent of the value of their inheritance.
Class Discussion
Q: Supposing a painter has a contract with his
client where he will draw the portrait of his
client; then, he dies. Will the heir be obliged to
make the painting?
A: NO, the nature of the obligation is personal.
Q: Would it be correct to say that obligations
concerning property are transmissible?
A: Yes, as a general rule, obligations concerning
property are executed via contracts & bind
parties, given the relativity of contracts.
Q: Is it possible to enumerate all personal
rights?
A: NO. That is why the provisions on succession
are broad enough.
Q: A candidate in Ms. Philippines dies before the
contest. May her heir claim the right to
represent her?
A: NO. That is personal.
Q: There is an interesting phrase in Art. 774 –
“value to the extent of his inheritance.” What is
the reason for this phrase?
A: It means that heirs will only pay to the extent
of the value of his inheritance of the debts of
the decedent, and nothing more than that.
Q: If a person dies leaving properties worth
P100,000, and debts worth P200,000, will the
heir be obliged to pay to the debts?
A: NO. He will only pay to the extent he was
bound to inherit.
Q: If I am a creditor of the person who died,
after his death, can I sue the heirs for payment?
A: According to the Rules, the creditors have to
sue in the probate court during the probate
proceedings to claim from the estate of the
decedent.
The Rules provide that after the death of the
decedent, an administrator can be appointed
over his estate, who will take charge of paying
his debts. All creditors will have to file claims in
those proceedings. Those who fail to claim
within 2 years are banned from claiming.
Q: If a creditor fails to file in the proceedings,
may he sue the heirs?
A: No.
Q: What if none of the heirs open a probate
proceeding? What if the heirs don’t care about
their inheritance? Can creditors sue them
directly?
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A: Yes. He may appoint himself as an
administrator.
Q: If a person is married and he dies, will his son
acquire ownership of all his properties after his
death?
A: No. Since the father is married, not all of the
properties are considered his; only half are
considered his as the rest pertains to his wife.
M: In inheritance, you inherit the net estate.
Article 775. In this Title, "decedent" is the
general term applied to the person whose
property is transmitted through succession,
whether or not he left a will. If he left a will, he
is also called the testator. (n)
Article 776. The inheritance includes all the
property, rights & obligations of a person which
are not extinguished by his death. (659)
Class Discussion
Q: What rights are acquired by a person who
succeeds?
A: Only rights which are transmissible.
Q: What are examples of transmissible rights?
A: Right to lease a piece of land.
Q: What are intransmissible rights?
A: The right to vote is intransmissible, or the
right to run for office.
CASE: HU NIU V. COLLECTOR OF CUSTOMS
Facts: A Chinese widow hopes to enter the
Philippines with her minor children following the
death of her husband in the country. Her
husband had left properties in the Philippines, &
by virtue of this, the widow attempted to argue
that she & her kids had the right to enter the
country. Can the wife of the Chinese merchant &
her kids enter the country because she is the
widow of the Chinese merchant, or alternatively,
because she thereby becomes the “merchant”
following her husband’s death?
Held: NO. The widow and minor children of a
deceased resident Chinese merchant are not
entitled to enter the Philippine Islands by virtue
of the privileges which such merchant enjoyed
during his lifetime. Also, the death of a resident
Chinese merchant does not confer upon his
widow and heirs the status of a merchant and
they are not entitled to enter the Philippine
Islands from China by reason of such fact alone.
The assumption of the appellant is that the
mere act of the death of a merchant makes his
wife and children also merchants, as it leaves to
them as heirs and next of kin a mercantile
business as a part of their inheritance. This does
not necessarily follow.
Q: A, a barangay chairman, died of a heart
attack. His son B claims his office as part of his
inheritance. Is B correct or not? Explain.
A: B is not correct. The public office of A as
Barangay Chairman is purely personal to him.
Being purely personal, this public office is
intransmissible and therefore cannot be
transferred by succession. Only transmissible
rights and obligations are transferred by
succession. For the foregoing reasons, B is not
correct.
Rule 73, Section 1. Where estate of
deceased persons settled. —
 If the decedents is an inhabitant of the
Philippines at the time of his death,
whether a citizen or an alien, his will shall
be proved, or letters of administration
granted, and his estate settled, in the RTC
in the province in which he resides at the
time of his death, and
 If he is an inhabitant of a foreign country,
the RTC of any province in which he had
estate.
The court first taking cognizance of the
settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so
far as it depends on the place of residence of
the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding,
except in an appeal from that court, in the
original case, or when the want of jurisdiction
appears on the record.
Rule 75, Section 1. Allowance
necessary. Conclusive as to execution. — No
will shall pass either real or personal estate
unless it is proved and allowed in the proper
court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to
its due execution.
CASE: FULE V. FULE (1924)
Facts: Saturnino Fule died. Ciriaco Fule, one of
the heirs, presented a petition in CFI of the
Province of Laguna for the appointment of an
administrator of the estate of Saturnino, and
prayed specially for 'the appointment of
Cornelio Alcantara as such administrator.
The oppositors, however, appeared and
presented a motion alleging that they were
children of Saturnino & that they were all of age;
that they opposed the appointment of an
administrator upon the ground that the
deceased had left no debts and that his
property had already been partitioned among
his children during his lifetime in conformity
with Art. 1056 of the Civil Code; that the special
administrator had taken possession of property
of large value belonging to them, and had
thereby deprived them of their means of
livelihood, and prayed that the order appointing
a special administrator be denied. The lower
courts ruled in favor of the heirs and against the
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appointment of an administrator. Was this
correct?
Held: YES. Under the provisions of the Civil Code
(Arts. 657 to 661), the rights to the succession
of a person are transmitted from the moment of
his death; in other words, the heirs succeed
immediately to all of the property of the
deceased ancestor. The property belongs to the
heirs at the moment of the death of the
ancestor as completely as if the ancestor had
executed and delivered to them a deed for the
same before his death. In the absence of debts
existing against the estate, the heirs may enter
upon the administration of the said property
immediately. If they desire to administer it
jointly, they may do so. If they desire to
partition it among themselves and can do this
by mutual agreement, they also have that
privilege.
When the heirs are all of lawful age and there
are no debts there is no reason why the estate
should be burdened with the cost and expenses
of an administrator. The administrator has no
right to intervene in any way whatsoever in the
division of the estate among the heirs when
they are adults and when there are no debts
against the estate.
*Note: This is allowed until now, so long as there
is no creditor.
CASE: DKC HOLDINGS CO. V. CA
Facts: DKC Holdings entered into a Contract of
Lease with Option to Buy with Encarnacion,
whereby DKC was given the option to lease or
lease with purchase the subject land, which
option must be exercised within 2 years counted
from the signing of the Contract. In turn, DKC
undertook to pay P3,000 a month as
consideration for the reservation of its option.
Encarnacio died & now DKC wants to enforce
the Contract of Lease against Victor,
Encarnacion’s son & heir. Victor refused. Can
Victor be compelled to enter into the contract?
Held: YES. A contract of lease with option to buy
is a transmissible contract which an heir must
honor. Among contracts which are
intransmissible are those which are purely
personal, either by provision of law, such as in
cases of partnerships and agency, or by the
very nature of the obligations arising therefrom,
such as those requiring special personal
qualifications of the obligor. It may also be
stated that contracts for the payment of money
debts are not transmitted to the heirs of a party,
but constitute a charge against his estate. Thus,
where the client in a contract for professional
services of a lawyer died, leaving minor heirs, &
the lawyer, instead of presenting his claim, for
professional services under the contract to the
probate court, substituted the minors as parties
for his client, it was held that the contract could
not be enforced against the minors; the lawyer
was limited to a recovery on the basis of
quantum meruit.
In the case at bar, there is no personal act
required from the late Encarnacion. Rather, the
obligation of Encarnacion to deliver possession
of the subject property to petitioner upon the
exercise by the latter of its option to lease the
same may be performed by her heir, Victor.
It is futile for Victor to insist that he is not a
party to the contract because of the clear
provision of Art. 1311 of the Civil Code. Being an
heir of Encarnacion, there is privity of interest
between him and his deceased mother. He only
succeeds to what rights his mother had and
what is valid and binding against her is also
valid & binding as against him.
CASE: HEIRS OF YPON V. GAUDIOSO PONTERAS
Facts: This was complaint for Cancellation of
Title and Reconveyance with Damages, where
the Heirs of Ypon brought suit against Gaudioso,
claiming the latter was not, in fact, the only heir
to the properties of deceased Magdaleno (who,
according to the plaintiffs, died childless). The
trial court dismissed the case for failure to state
a cause of action against Gaudioso. It stated
that the latter was able to establish that he was
the son of Magdaleno, & that consequently, he
was entitled to the disputed properties. Was the
trial court correct to dismiss the case on that
ground?
Held: YES. Jurisprudence dictates that the
determination of who are the legal heirs of the
deceased must be made in the proper special
proceedings in court, and not in an ordinary suit
for recovery of ownership and possession of
property.
Matters relating to the rights of filiation and
heirship must be ventilated in the proper
probate court in a special proceeding instituted
precisely for the purpose of determining such
rights.
*Note: The above is the general rule and the
case already provided the exception – By way of
exception, the need to institute a separate
special proceeding for the determination of
heirship may be dispensed with –
1. For the sake of practicality, as when the
parties in the civil case had voluntarily
submitted the issue to the trial court and
already presented their evidence
regarding the issue of heirship, and the
RTC had consequently rendered judgment
thereon, or
2. When a special proceeding had been
instituted but had been finally closed and
terminated, and hence, cannot be re-
opened.
Article 777. The rights to the succession are
transmitted from the moment of the death of
the decedent. (657a)
Preference for the Word “Vested”
The right to succession “vests” upon death
implies that before the decedent’s death the
right is merely inchoate.
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 The vesting of the right occurs
immediately upon the decedent’s death;
i.e., without a moment’s interruption.
o Art. 553. The possession of
hereditary property is deemed
transmitted to the heir without
interruption & from the moment of
the death of the decedent, in case
the inheritance is accepted.
One who validly renounces an
inheritance is deemed never to have
possessed the same.
Class Discussion
Q: The word “vested” is preferred by Balane.
Why?
A: Because the moment of death is the
determining point and prior to that time, no
right is vested.
Presumptions
Art. 777 presumes that the person succeeding --
1) Has a right to succeed
 By legitime (compulsory succession),
 By will (testamentary succession), or
 By law (intestate succession);
2) Has the legal capacity to succeed; &
3) Accepts the successional portion.
Governing Principles
1) The law in force at the time of the decedent’s
death will determine who the heirs should be.
 CASE: USON V. DEL ROSARIO
o Facts: Maria is the lawful wife of
Faustino. Faustino died in 1945, &
following this, Mary got all his
properties, to the exclusion of his 4
illegitimate children. Defendants,
representing the kids, contend that,
while they are the illegitimate
children of the late Faustino & they
would not be entitled to any
successional rights under the old
Civil Code, under the new Civil Code
which became effective on June,
1950, illegitimate children have been
given the status & rights of natural
children and are entitled to the
successional rights which the law
accords to the latter (Art. 2264 and
Art. 287, NCC). Defendants
contended that, because these
successional rights were declared for
the first time in the new code, they
should be given retroactive effect,
even though the event which gave
rise to them (i.e., Faustino’s death in
1945) may have occurred under the
old Civil Code (Art. 2253, NCC). Is this
correct?
o Held: NO. Art. 2253 may provide that
rights which are declared for the first
time shall have retroactive effect
even though the event which gave
 rise to them may have occurred
under the former legislation, but this
is so only when the new rights do not
prejudice any vested or acquired
right of the same origin. As such, the
right of ownership of Maria over the
lands in question became vestedin
1945, & the rights to succession are
transmitted from the moment of
death (Art. 657, old Civil Code). The
new right recognized by the newCivil
Code in favor of the illegitimate
children of the deceased cannot,
therefore, be asserted to the
impairment of the vested right of
Maria over the lands in dispute.
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.
 CASE: DE BOIJA V. VDA. DE BOIJA
o Facts: Francisco married a 2nd wife,
Tasiana, after his 1st wife died. With
his 1st wife, he had 2 kids who
engaged in legal disputes over his
properties with Tasiana upon
Francisco’s death. Tasiana & the kids
signed an extrajudicial settlement to
put a stop to the bickering. In the
agreement, it was stated that, in
exchange for Tasiana’s hereditary
share in the estate, the heirs would
pay her P800,000. Tasiana now wants
to assail the extrajudicial
settlement’s validity, claiming that
the agreement was void. Is it?
o Held: It’s VALID. As a hereditary
share in a decedent’s estate is
transmitted or vested immediately
from the moment of the death of
such causante or predecessor in
interest (Civil Code, Art. 777) there is
no legal bar to a successor (with
requisite contracting capacity)
disposing of her hereditary share
immediately after such death, even if
the actual extent of such share is not
determined until the subsequent
liquidation of the estate. Such a
contract is like a compromise, which
the law favors.
o Note: The presentation of a will for
probate is mandatory when there are
unpaid debts.
3) The heirs have the right to be substituted for
the deceased as party in an action that
survives.
 CASE: BONILLA V. BARCENA
o Facts: Fortunata instituted a civil
action to quiet title. Before it was
finished, Fortunata died. The trial
court dismissed the case as a result.
Was the court correct?
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o Held: NO. While it is true that a
person who is dead cannot sue in
court, his heirs can substitute him.
The records show that Fortunata died
on July 9, 1975 while the complaint
was filed on March 31, 1975. This
means that when the complaint was
filed in March, Fortunata was still
alive, & therefore, the court had
acquired jurisdiction over her person.
If thereafter she died, the Rules
prescribe the procedure whereby a
party who died during the pendency
of the proceeding can be substituted.
Her heirs have thus acquired interest
in the properties in litigation and
became parties in interest in the
case.
o Note: The question as to whether an
action survives or not depends on (1)
the nature of the action & (2) the
damage sued for. In the causes of
action which survive the wrong
complained affects primarily &
principally property & property rights,
the injuriesto the person being
merely incidental, while in the causes
of action which do not survive the
injury complained of is to the person,
the property and rights of properly
affected being incidental. As an
example, the quieting of title is a
property right issue.
Don’t Forget!
Art. 777 operates at the very moment of the
decedent’s death.
 The transmission by succession occurs at
the precise moment of death & therefore
the heir, devisee, or legatee is legally
deemed to have acquired ownership at
that moment (even if, particularly in the
heir’s case, he will generally not know
how much he will be inheriting and what
properties he will ultimately be receiving)
 Transmission is not at the time of
declaration of heirs, or partition, or
distribution.
What Precisely is Transmitted
The Net Estate, which consists of –
1. The assets remaining after payment of
unpaid money debts of the decedent
2. The expenses of administration
3. All transmissible non-monetary obligations
CASE: CALALANG-PARULAN V. CALALANG-GARCIA
Facts: This case involves a disputed piece of
property, & whether said property was owned
by Pedro, the deceased, as exclusive property,
or as conjugal property shared with his first
wife.
Pedro was first married to Encarnacion, with
whom he had children (respondents in this
case). Encarnacion died. Pedro then married
Elvira, & with her, had 2 kids. During the 2 nd
marriage, he got the disputed property
registered, but only under his name, not with his
kids from the 1st marriage. He then sold the
property to Nora, his daughter. Respondents
filed an action to annul Nora’s title to the
property. Should their action prosper?
Held: NO. First, SC looked into the evidence &
held that the property was exclusively Pedro’s,
& not included in the conjugal partnership he
had with Encarnacion.
SC further held that the title to the disputed
property issued more than 30 years after the
death of Encarnacion was named exclusively to
Pedro, & there was no proof that the property
actually originally belonged to the parents of
Encarnacion.
Based on these facts, it was wrong for the lower
courts to state that Pedro deprived his heirs of
their inheritance from him. In the first place, it
was only upon the death of Pedro that his heirs
acquired their respective to their inheritances,
entitling them to their pro indiviso shares to his
whole estate. At the time of the sale of the
disputed property, the rights to the succession
were not yet bestowed upon the heirs of Pedro.
As sole & exclusive owner of the property, Pedro
had the right to sell it to Nora. And absent clear
and convincing evidence that the sale was
fraudulent or not duly supported by valuable
consideration (in effect an inofficious donation
inter vivos), the respondents have no right to
question the sale of the disputed property on
the ground that their father fraudulently
deprived them of their respective shares.
What are Determined as of Time of Death (from
Calalang-Parulan v. Calalang-Garcia)
The following are determined as of the time of
death:
1. The capacity of the heir is determined as
of the time the decedent died (Art. 1034);
2. The legitime is to be computed as of the
same moment (Art. 908), and
3. The inofficiousness of the donation inter
vivos (Art. 771).
4. Similarly, the legacies of credit &
remission are valid only in the amount due
and outstanding at the death of the
testator (Art. 935), &
5. The fruits accruing after that instant are
deemed to pertain to the legatee (Art.
948).
Class Discussion
Q: Formalities of a will are determined at the
time of the execution of the will, but the validity
of the will is determined by the law at the time
of the execution. If a person writes a will which
is in his own handwriting (i.e., a holographic will)
and under the law at that time, it was invalid,
but when he died, a holographic will would be
valid. Is that a valid will?
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A: No, the will’s validity as to its form is
determined by the time that it is made.
Q: Mrs. C, a widow, gave D an option to buy her
land at P100 per sqm. During the option period,
C died, leaving E as her sole heir. When D
decided to exercise his option to purchase the
land, E refused to sell, on the ground that the
land is now worth P200 per sqm. D sued E for
specific performance. Decide.
A: D’s action for specific performance must
prevail. Jurisprudence holds that the death of a
party does not excuse nonperformance of an
obligation when the same involves a property
right. In the case at bar, Mrs. C's obligation
under the option to buy binds her, her heirs,
and assigns by express provision of the Civil
Code. The only exceptions to this rule are (1)
when the nature of the obligation renders the
same intransmissible, (2) when the parties
stipulate to the contrary, and (3) when the law
so provides for the contrary. None of the
exceptional circumstances are availing; thus, E
as Mrs. C's heir must perform the obligation
according to its original tenor, which in this
case, is to sell the land for P100 per sqm.
Q: Prior to the effectivity of the New Civil Code,
F executed a last will and testament in which he
bequeathed his entire estate to his legitimate
children, leaving nothing to his illegitimate
children who were not entitled to inherit under
the law. F died after the effectivity of the New
Civil Code, which grants hereditary rights to
illegitimate children. Can the illegitimate
children of F demand a part of the inheritance?
Explain.
A: Yes, the illegitimate children of F can demand
a part of the inheritance. Succession takes place
upon the death of the decedent, and this gives
rise to the principle that the law which governs
succession is that in effectivity at the death of
the decedent. Since the New Civil Code was in
effect at the moment of F’s death, it is this law
which governs succession in the instant case.
Thus, the illegitimate children can claim their
share in the inheritance under the New Civil
Code.
Article 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
*Article 779. Testamentary succession is that
which results from the designation of an heir,
made in a will executed in the form prescribed
by law. (n)
*Article 780. Mixed succession is that effected
partly by will and partly by operation of law. (n)
*Defining Intestate Succession
Intestate or legal succession takes place by
operation of law in the absence of a valid will.
 Note that the law does not explicitly
provide a definition for intestate
succession. This definition is based on
legislative drafts.
Legitimes or Compulsory Succession
This is not precisely accommodated in Art. 778,
but should be. The points to remember:
 Legitime operates whether or not there is
a will, & in fact prevails over a will
 Rules of legitime may apply to the
exclusion of intestacy
Intestate v. CompulsorySuccession
Intestate Compulsory
Operates ONLY in Operates whether or
default of a will not there is a will, & in
fact prevails over a will
Rules of intestacy will Rules of legitime may
apply sometimes operate to
the exclusion of the
rules of intestacy
Currently, No Contractual Succession in the
Philippines
 Under the Civil Code, there was
contractual succession – when future
spouses give one another property in their
settlements, only in the event of death.
 Current Family Code – Donations of future
property shall be governed by the
provisions on testamentary succession &
the formalities of wills (Art. 84, par. 2);
because of this rule, contractual
succession no longer exists.
Different Kinds of Succession
1. Compulsory — succession to the legitime
(this prevails over all other kinds)
2. Testamentary — succession by will
3. Intestate — succession in default of a will
4. Mixed — not a distinct kind really, but a
combination of any 2 or all of the first 3
Article 781. The inheritance of a person
includes not only the property & the
transmissible rights & obligations existing at
the time of his death, but also those which
have accrued thereto since the opening of the
succession. (n)
Flaw in Wording
Article 781 is best deleted; it serves only to
confuse. The inheritance includes only those
things enumerated in Art. 776.
 Whatever accrues thereto after the
decedent’s death belongs to the heir, not
by virtue of succession, but by virtue of
ownership
 To say that accruals to the inheritance
after the decedent’s death are included in
the inheritance is to negate the principle
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in Art. 777 that transmission takes place
precisely at the moment of death
CASE: BALUS V. BALUS
Facts: During his lifetime, Rufo mortgaged a
piece of property he owned to the Rural Bank.
He failed to pay his loan on the stipulated date;
the property was thus sold to the Bank at a
foreclosure sale. 2 years after, a new title was
issued in favor of the Bank. When Rufo died,
respondents & petitioner, Rufo’s kids, executed
an extrajudicial settlement of his estate,
adjudicating to each of them a portion of the
property, whilst admitting knowledge of Rufo’s
mortgage. 3 years after the settlement, the
respondents bought the property from the Bank,
while petitioner continued to reside thereon.
Respondents then filed a complaint for recovery
of possession against petitioner. Petitioner,
however, argued that he was a co-owner of the
property & was entitled to stay thereon. Is his
contention valid?
Held: NO. Both respondent & petitioner based
their arguments on the fact that they executed
an extrajudicial settlement as to the property
following Rufo’s death. But they both rely on the
wrong premise. To begin with, the subject
property is actually exclusively the property of
the Bank, which acquired exclusive ownership of
the contested lot during Rufo’s lifetime through
the foreclosure sale. The rights to a person’s
succession are transmitted from the moment of
death. Here, since Rufo lost ownership of the
subject property during his lifetime, it only
follows that at the time of his death, the
disputed parcel of land no longer formed part of
his estate to which his heirs may claim. As such,
petitioner & respondents NEVER inherited the
subject lot from Rufo.
Class Discussion
Q: What if, when the decedent died, there were
mangos on the trees, already produced. To
whom do the fruits belong?
A: To the heir, because of succession.
Q: What if there is a building, and there were
rentals which accrued prior to the death of the
decedent. Who inherits the property?
A: The heir, via succession.
Q: You succeed in an orchard of mango trees. By
virtue of succession, you become the owner of
the orchard. The following month, the trees bear
fruit. Who owns the fruit?
A: You, the heir. You get the fruits because of
ACCESSION, not succession.
Article 782. An heir is a person called to the
succession either by the provision of a will or
by operation of law.Devisees & legatees are
persons to whom gifts of real & personal
property are respectively given by virtue of a
will. (n)
*Definitions  Formalities prescribed by law – wills must
 Heir - one who succeeds to the (1) whole follow the forms prescribed respectively
or (2) an aliquot part of the inheritance for attested & holographic wills
 Devisee - those who succeed to definite,  Control to a certain degree – limited by
specific, & individual REAL properties. the rules on legitimes
 Legatee - those who succeed to definite,  After his death – it is mortis causa
specific, & individual PERSONAL
properties. An Alternative Definition
A will is a personal, solemn, revocable, & free
Why is it Important? act by which a capacitated person disposes of
In cases of preterition the institution of heir is his property and rights and declares or complies
annulled, while the institution of legatees & with duties to take effect after his death.
devisees is effective to the extent that the
legitimes are not impaired. Wills are personal – the efficacy of the will
cannot be delegated to any other person, but a
Class Discussion third person can be designated for the
Q: If I receive a car from my deceased father, distribution of the estate you decide to give.
am I an heir or a legatee?
A: I am both. *11 Characteristics of Wills
(DEERS-PFIUMS – Deers’ Perfumes)
Q: If I get 1/3 of the decedent’s horses, what am 1. Dispositive of property
I? 2. Executed with animus testandi
A: An heir, because this refers to an aliquot 3. Executed with testamentary capacity
portion. 4. Revocable or ambulatory
5. Statutory
Q: If I give you all my houses in Baguio, what 6. Purely personal
are you? 7. Free and intelligent
A: A devisee. 8. Individual
9. Unilateral
Q: I give you ¼ of my houses in Baguio. What 10. Mortis causa
are you? 11. Solemn & formal
A: I would be an heir because the houses I will
get have yet to be determined with specificity. Vitiation of Consent
A testator’s consent should not be vitiated by:
Q: In his last will and testament, G bequeaths 1. Insanity
100 heads of carabao to be taken from his herd 2. Violence
in Nueva Ecija, to H. Is H an heir or a legatee? 3. Intimidation
Explain. 4. Undue influence
A: It is submitted that H is a legatee. An heir is 5. Fraud
one who success to the whole, or to an aliquot 6. Mistake
part, of the decedent’s estate. On the other
hand, a legatee is one to whom specific Attested v. Holographic
property has been bequeathed. The bequeathal  Attested – ordinary, notarial wills,
of 100 heads of carabao to be taken from the subscribed by the testator or his agent in
herd is specific and determinate. Therefore, H is his presence and by express direction
a legatee. thereof, in the presence of at least 3
credible witnesses; there are several other
CHAPTER 2. Testamentary Succession requirements for compliance
 Holographic – a will completely
SECTION 1. Wills handwritten by the testator, dated by him
& signed by him
SUBSECTION 1. Wills in General
Joint Wills
*Article 783. A will is an act whereby a person Joint wills are prohibited in this jurisdiction.
is permitted, with the formalities prescribed by
law, to control to a certain degree the Animus Testandi
disposition of his estate, to take effect after his CASE: MONTINOLA V. HERBOSA
death. (667a) Issue: Is the line “To you I leave everything, my
parents, my loves” in Rizal’s famous final poem
Operative Words in the Definition a will?
 Act – Balane thinks the word is too broad Held: NO. An instrument which merely
& a more specific term, like “instrument,” expresses a last wish as a thought or advice but
should have been used does not contain a disposition of property and
 Permitted – will-making is purely statutory was not executed with animus testandi cannot

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legally be considered a will. The poem was
intended as a literary work.
Disinheritance
A holographic document which contains only a
clause disinheriting one of the testator’s sons is
considered a document of disposition & must
comply with the formalities of a will, one which
must be admitted to probate to be effected
(Seangio v. Reyes).
Article 784. The making of a will is a strictly
personal act; it cannot –
1. Be left in whole or in part to the
discretion of a third person, or
2. Accomplished through the
instrumentality of an agent or attorney.
(670a)
Mechanical acts may be done by others
It is the exercise of the disposing power that
cannot be delegated. Thus, mechanical aspects,
such as typing, do not fall within the prohibition.
Article 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or
the determination of the portions which they
are to take, when referred to by name, cannot
be left to the discretion of a third person.
Non-Delegable Aspects of Will-Making
The ff. constitute the essence of will-making or
the exercise of disposing power, & are non-
delegable: (HDP)
1. The designation of Heirs, devisees or
legatees
2. The Duration or efficacy of such
designation (including conditions, terms &
substitutions)
3. The determination of the Portions they are
to receive
Class Institutions & Art. 786
Class institutions & those falling under Art. 786
do not have to specify the portions going to the
several recipients.
Article 786. The testator may entrust to a
third person:
 The distribution of specific property or
sums of money that he may leave in
general to specified classes or causes,
and also,
 The designation of the persons,
institutions or establishments to which
such property or sums are to be given or
applied. (671a)
Rules of Art. 786
 Art. 786 is the exception to the general rule
that will-making cannot be delegated.
 Two things MUST be determined by the
testator under this Article:
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1. The property or amount of money to
be given, and
2. The class or the cause to be
benefited.
 Two things MAY be delegated by the
testator:
1. The designation of persons,
institutions, or establishments within
the class or cause
2. The manner of distribution
Sample Scenario for Pondering
Q: X specified the recipients (by specific
designation) but left to the third person the
determination of the sharing. As such, X wrote:
“I leave P500,000 to be given to A, B & C, to be
distributed among them in such proportions as
my executor may determine.” Is this valid?
A1: NO. The law prohibits this; the recipients are
referred to by name & therefore, their portions
must be specifically determined by the testator.
Art. 786 applies only when the testator specifies
only a class or cause, not specific recipients.
A2: YES. This gives lesser discretion to the
appointed third person than the instances in Art.
786, and should thus be allowed.
Article 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or
not it is to be operative. (n)
Rule in Art. 787
This article prohibits the delegation to a third
person of the power to decide whether a
disposition should take effect or not.
 Ex. “I leave ¼ of my estate to A, and I
authorize B to decide whether or not this
disposition should be given effect or not.”
This is prohibited.
 NOTE: The heir is free to accept or
renounce any testamentary benefit given
to him, without contradicting Art. 787.
Article 788. If a testamentary disposition
admits of different interpretations, in case of
doubt, that interpretation by which the
disposition is to be operative shall be preferred.
(n)
Testacy is Preferred to Intestacy
 Testamentary succession shows the
express will of the decedent, whereas the
latter is only his implied will.
You cannot determine intent through the oral
declaration of the testator. External evidence as
to intent as a general rule can be admitted, but
not the alleged oral declaration of the testator. If
the external evidence cannot be proven, you
must then go to intestacy.
Article 789. When there is an imperfect
description, or when no person or property
exactly answers the description, mistakes &
omissions must be corrected, if the error
appears from the context of the will or from
extrinsic evidence, excluding the oral
declarations of the testator as to his intention;
and when an uncertainty arises upon the face
of the will, as to the application of any of its
provisions, the testator's intention is to be
ascertained from the words of the will, taking
into consideration the circumstances under
which it was made, excluding such oral
declarations. (n)
Two Kinds of Ambiguity in Art. 789
1. Latent – Not obvious on the face of the will
 As to person – “I institute to ¼ of my
estate my first cousin, Jose.” But the
testator has more than one cousin
named Jose.
 As to object – “I devise to my cousin
Pacifico my fishpond in Roxas City.” But
the testator has 5 fishponds in Roxas
City.
2. Patent – Obvious on the face of the will
 As to person – “I institute to ¼ of my
estate some of my first cousins.”
 As to property – “I bequeath to my
cousin Pacifico some of my cars.”
How to Deal with Ambiguities
 These rules apply to both patent & latent
ambiguities.
 The ambiguity should, as far as possible,
be cleared up & resolved, in order to give
effect to the testamentary disposition
 Method of resolving: any evidence
admissible & relevant may be given
o EXCEPT: The oral declarations of the
testator as to his intention
 Follow provisions of the Civil Code as to
the interpretation of contracts
Article 790. The words of a will are to be
taken in their ordinary & grammatical sense,
unless a clear intention to use them in another
sense can be gathered, & that other can be
ascertained.
Technical words in a will are to be taken in their
technical sense, unless the context clearly
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn
solely by the testator, & that he was
unacquainted with such technical sense. (675a)
Similar Provisions in Rule 130 of the Rules of
Court
 Sec. 10 – The language of a writing is to
be interpreted according to the legal
meaning it bears in the place of its
execution, unless the parties intended
otherwise.
 Sec. 14 – The terms of a writing are
presumed to have been used in their
primary & general application, but
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evidence is admissible to show that they
have a local, technical, or otherwise
particular signification, & were so used &
understood in the particular instance, in
which case the agreement must be
construed accordingly.
Similar Provision in Art. 1370, par. 1 of the Civil
Code
If the terms of a contract are clear & leave no
doubt upon the intention of the contracting
parties, the literal meaning of the stipulations
shall control.
*Article 791. The words of a will are to receive
an interpretation which will give to every
expression some effect, rather than one which
will render any of the expressions inoperative;
& of two modes of interpreting a will, that is to
be preferred which will prevent intestacy. (n)
Similar Provisions in Rule 130 of the Rules of
Court
In the construction of an instrument where there
are several provisions or particulars, such a
construction is, if possible, to be adopted as will
give effect to all.
Similar Provisions in the Civil Code
 Art. 1373 – If some stipulation of any
contract should admit of several
meanings, it shall be understood as
bearing that import which is most
adequate to render it effectual.
 Art. 1374 – The various stipulations of a
contract shall be interpreted together,
attributing to the doubtful ones that sense
which may result from al of them taken
jointly.
Article 792. The invalidity of one of several
dispositions contained in a will does not result
in the invalidity of the other dispositions,
 UNLESS it is to be presumed that the
testator would not have made such other
dispositions if the first invalid disposition
had not been made. (n)
Separability Clause
This codal refers to the separability clause that
is used in statutory construction.
Article 793. Property acquired after the
making of a will shall only pass thereby, as if
the testator had possessed it at the time of
making the will, should it expressly appear by
the will that such was his intention. (n)
Questionable Language of Art. 793
 This article makes it appear that the will
speaks as of the time it is made, rather than
at the time of the decedent’s death.
 Ex. X executes a will in 1980 stating, “I will
leave ¼ of my estate to A.” In 1980, his
 estate was worth P100,000. At the time of
his death in 1990, his estate was worth
P500,000. Yet, if Art. 793 is the basis, X will
only get ¼ of P100,000, or P25,000.
Better Language
Better version would be: “Property acquired
after the making of a will passes thereby unless
the contrary clearly appears from the words or
context of the will.”
Q: A testator in his will bequeathed “ all my
horses to my son Adam.” At the time he
executed his said will, the testator owned 50
horses, 10 of which were pregnant mares. On
the date he died, the mares had already given
birth to 10 colts, increasing the herd to 60
horses. How many horses can Adam claim as his
inheritance? Why?
A: Adam can only claim 50 horses, by express
provision of law that only the properties of the
testator present at the time of execution of the
will may pass thereby. This is an exception to
the rule that succession takes place at the
moment of death of the decedent.
*Note: This was the answer provided in the quiz;
personally not sure if it is correct.
Article 794. Every devise or legacy shall cover
all the interest which the testator could device
or bequeath in the property disposed of,
 UNLESS it clearly appears from the will
that he intended to convey a less interest.
(n)
Notes on Art. 794
GR: In a legacy or device, the testators gives
exactly the interest he has in a thing.
EXC: He can give a less interest or a greater
interest (Art. 929) than he has.
 If he gives a greater interest, if the person
owning the interest does not wish to part
with it, the solution in Art. 931 can be
applied; i.e., the legatee or devisee shall be
entitled only to the just value of the
interest that should have been acquired.5
Article 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. (n)
Aspects of Validity of Wills
1. Extrinsic – formal validity
a. Governing law as to time:
5 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. (864a)
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.
(861a)
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 For Filipinos – the law in force
when the will was executed
 For foreigners – same rule, IF
the will is being probated here
b. Governing law as to place for
Filipinos and foreigners:
 Law of citizenship
 Law of domicile
 Law of residence
 Law of place of execution
 Philippine law
2. Intrinsic – substantive validity
a. Governing law as to time
 For Filipinos – the law as of the
time of death6
 For foreigners – depends on
their personal law7
b. Governing law as to place
 For Filipinos – Philippine law
 For foreigners – their national
law8
CASE: IN RE WILL OF RIOSA
Facts: Jose Riosa died in 1917. He left a will
made in January 1908, using Sec. 618 of the
Code of Civil Procedure, the law in force at the
time, which required less formalities. When he
died, the law in force was already Act No. 2645.
The latter law was enacted before he died, in
1916. Which governs?
Held: The Code of Civil Procedure, in force when
he executed the will, governs. When a testator
makes a will following the formal requisites at
the time he executed it, it would be unjust to
disappoint his lawful right of disposition because
of a rule subsequently enacted, though before
his death.
CASE: ENRIQUEZ V. ABADIA
Facts: Fr. Abadia made a holographic will (i.e.,
handwritten) before the effectivity of the new
Civil Code. The old law did not allow holographic
wills. Andres Enriquez, an heir according to the
holographic will, filed a petition for its probate.
6 Art. 2263. Rights to the inheritance of a person who died,
with or without a will, before the effectivity of this Code, shall
be governed by the Civil Code of 1889, by other previous
laws, and by the Rules of Court. The inheritance of those who,
with or without a will, die after the beginning of the effectivity
of this Code, shall be adjudicated and distributed in
accordance with this new body of laws and by the Rules of
Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in no
other manner can every compulsory heir be given his full
share according to this Code. (Rule 12a)
7 Art. 16, par. 2. Intestate and testamentary successions,
both with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of
the country wherein said property may be found. (10a)
8 Art. 1039. Capacity to succeed is governed by the law of
the nation of the decedent.
The other heirs opposed him, stating the
holographic will was not valid. Is the will valid?
Held: NO. Fr. Abadia is to be regarded as having
died intestate. The law in force at the time he
executed the will did not permit a holographic
will. As such, it is deemed that his heirs, by law,
have acquired a vested right to the properties
that his heirs under the holographic will cannot
claim owing to the will’s invalidity.
SUBSECTION 2.
Testamentary Capacity and Intent
What is testamentary capacity?
It is the legal capacity to make a will.
Who has testamentary capacity?
All natural persons, unless disqualified by law.
Juridical persons are not granted testamentary
capacity.
Article 796. All persons who are not expressly
prohibited by law may make a will. (662)
Article 797. Persons of either sex under 18
years of age cannot make a will. (n)
Legal Periods in Relation to Age (Gregorian
Calendar)
 Year – 12 calendar months
 Month – 30 days, unless it refers to a
specific calendar month, in which case it
shall be computed according to the
number of days the specific month
contains
 Day – 24 hours
 Night – refers to sunset to sunrise
Article 798. In order to make a will it is
essential that the testator be of sound mind at
the time of its execution. (n)
Unsound Mind (Insanity)
It refers to the absence of the qualities of
soundness of mind.
*Article 799. To be of sound mind, it is not
necessary:
 That the testator be in full possession of
all his reasoning faculties, or
 That his mind be wholly unbroken,
unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at
the time of making the will to know:
1. The nature of the estate to be disposed
of,
2. The proper objects of his bounty, and
3. The character of the testamentary act.
(n)
Soundness of Mind Defined
Negatively
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1. NOT necessary that the testator be in full
possession of his reasoning faculties
2. NOT necessary that testator’s mind be
wholly unbroken, unimpaired, unshattered
by disease, injury, or other cause
Positively (NOC)
1. Nature of estate to be disposed of
2. Proper Objects of one’s bounty
3. Character of the testamentary act
Testator Should:
1. Have fairly accurate knowledge of what he
owns (depending on his circumstances)
 Ex. A super rich dude may not
remember every single asset he
owns
2. Know, under ordinary circumstances, his
relatives in the most proximate degrees
 Ex. Knowledge will expectedly
decrease as degrees become more
remote, but the testator shouldn’t
be claiming he is related to Adolf
Hitler (unless, of course, he is)
3. Know that the document he is executing is
one which disposes of his property
Article 800. The law presumes that every
person is of sound mind, in the absence of
proof to the contrary.
 The burden of proof that the testator was
not of sound mind at the time of making
his dispositions is on the person who
opposes the probate of the will;
 BUT: If the testator, one month, or less,
before making his will was publicly
known to be insane, the person who
maintains the validity of the will must
prove that the testator made it during a
lucid interval. (n)
Sanity Presumed
GR: There is a rebuttable presumption of sanity.
EXC: Two instances –
1. When the testator, one month or less,
before the execution of the will was
publicly known to be insane
2. When the testator executed the will
after being placed under guardianship
and ordered committed, in either case,
for insanity and before said court order
was lifted
*Note: In the cases where there the exceptions
to the presumption if sanity apply, a will is
validated only if it can be shown that the will
was executed at a lucid interval.
GR: To be of sound mind, it shall be sufficient if
the testator was able at the time of making the
will to know:
1. The nature of the estate to be disposed of,
2. The proper objects of his bounty, and
3. The character of the testamentary act.
EXC: … 1 month before, etc.
CASE: DIONISIO V. DIONISIO
Facts: The petition for the probate of the
deceased Josefa Dionisio was opposed by
Angela Dionisio because apparently:
1. The document was not executed in a
form required by law for a valid will
(lacking page numbers stated in the
attestation)
2. At the time of the execution, Josefa was
mentally incapacitated
3. The signatures were forgeries
Held: The will is valid.
1. The original Tagalog version contains
the statement that it was 2 pages long
2. There was no evidence presented to
prove this
3. The signature was shaky because she
was extremely feeble and a paralytic
when she signed, but that does not
equate to forgery
CASE: BUGNAO V. UBAG
Facts: Domingo Ubag made a will where he
bequeathed everything he owned to his wife.
His wife petitioned for the probate of the will but
Domingo’s brothers opposed, saying that the
signature on it was forged, and that Domingo
was too ill to make a will.
Held: The signature was valid. The siblings were
not able to bring forth any evidence to the
contrary. If his signature was more deliberate, it
was because he was ill. And also, as explained
by the two witnesses, while Domingo was sick
with tuberculosis and asthma, his physical
incapacity did not establish his mental
incapacity or lack of testamentary capacity.
Between the highest degree of soundness of
mind & memory which unquestionably carries
with it full testamentary capacity, & that degree
of mental aberration generally known as
insanity or idiocy, there are numberless degrees
of mental capacity or incapacity. While on one
hand it has been held that mere weakness of
mind, or partial imbecility from disease of body,
or from age, will not render a person incapable
of making a will: a weak or feebleminded person
may make a valid will, provided he has under-
standing and memory sufficient to enable him to
know what he is about to do and how or to
whom he is disposing of his property. To
constitute a sound and disposing mind, it is not
necessary that the mind be unbroken or
unimpaired or unshattered by disease or
otherwise. It has been held that testamentary
incapacity does not necessarily require that a
person shall actually be insane or of unsound
mind.
Thus, once the three elements of testamentary
capacity are proven, it is presumed that the
executor was capacitated.
CASE: GALVEZ V. GALVEZ
Facts: Victor Galvez died. However, he left two
alleged wills – one in his provincial dialect (the
second will, which corrected the first will) & one
in Tagalog (the first will), both with different sets
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of witnesses. Canuta, Victor’s daughter, claimed
that Victor was not of sound enough mind to
execute the alleged wills, because he had
cholera and was very sick. Is the will valid?
Held: YES. In order to hold that Victor, on
account of serious illness, the proceedings
should have disclosed conclusive proof of his
mental incapacity and of his evident lack of
reason and judgment at the time he executed
his will in the presence of the witnesses whose
signatures are on the will.
CASE: HERNAEZ V. HERNAEZ
Facts: Doña Juana Espinoza executed a will
before she died. One of her sons petitioned for
the annulment of her will because –
1. She was lacking in mental capacity
when she executed it
2. The notary wrote it in Spanish and she
spoke in Visayan, and the notary did not
fully understand her. There should have
been two translators.
3. There should have been two doctors
present since she was so ill
Held: The will is valid.
1. The presumption is that a testator has
soundness of mental faculties until the
contrary is proven. Mental soundness is
always to be presumed with respect to a
person who has not been previously
incapacitated until the contrary is
demonstrated by the proper person.
2. This is not a reason to invalidate;
notaries are required to write in Spanish
and the notary could have availed of a
translator; what is more, two translators
are only needed if the language is
foreign
3. This is only necessary if she was shown
to be mentally incapacitated, to prove
there was a lucid interval
CASE: BAGTAS V. PAGUIO
Facts: Pioquinto Pizarro’s will is being contested
via petition. At the time he died, Pioquinto had
been paralyzed on the left side of his body for
14-15 years, & had lost his power of hearing and
speech. However, he was able to communicate
with his family, friends and doctors by writing on
pieces of paper. This was also how he wrote out
his will; writing on scraps and asking his
witnesses to aid him in piecing them into one
long form. Is the will valid?
Held: YES. There was no proof presented that he
suffered from mental incapacity; the doctor
presented as witness, who said he had a
“mental disorder,” was not able to state how
this exactly would affect his faculties in his
disposition of his properties. It is a question of
degree – so long as one’s mind and memory are
sufficiently sound to enable him to know and
understand what he is doing at the time he
executed his will, the will is valid.
Q: On the date that Rosario executed her will,
she was already 90 years old, & suffering from
high fever which confined her to her bed. In
fact, she died 3 days after the alleged execution
of her last will. Can she be considered as lacking
in testamentary capacity at the time of
execution of her will?
A: Jurisprudence provides that there is a
presumption of soundness of mind, which is
essential to possession of testamentary
capacity, unless evidence to the contrary is
shown. Old age & physical infirmities (i.e., high
fever) do not necessarily lead to the conclusion
that the testator is of unsound mind so long as
the testator, at the time of the execution of the
will, is shown to have understood (1) the nature
of his estate, (2) the proper object of his bounty,
and (3) the character of the testamentary act. In
this case, absent a clear showing that Rosario
failed to comprehend any 1 of the 3
aforementioned factors, there lies a to the appointment of Marina as administratrix,
presumption of sanity &, corollarily,
testamentary capacity in her favor.
Article 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of
capacity. (n)
Time for Determining Mental Capacity
Time of execution of will; no other temporal
criterion is to be applied.
Article 802. A married woman may make a
will without the consent of her husband, and
without the authority of the court. (n)
Suggested Wording
“A married person may make a will without his
or her spouse’s consent.”
Article 803. A married woman may dispose by
will of all her separate property as well as her
share of the conjugal partnership or absolute
community property. (n)
Art. 97, Family Code
Either spouse may dispose by will of his or her
interest in the community property.
SUBSECTION 3. Forms of Wills
*Article 804. Every will must be in writing &
executed in a language or dialect known to the
testator. (n)
*2 Common Requirements of All Wills
(1) In writing
(2) In a language or dialect known to the
testator
*NOTE: Failure to comply with the two
requirements nullifies the will.
Oral Wills
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 GR: Oral wills are not allowed in the
Philippines
 EXC: Code of Muslim Personal Laws
CASE: SUROZA V. HONRADO
Facts: Marcelina is the mother of Agapito, a
disabled man who is married to Nenita.
Marcelina supposedly executed a notarial will in
Manila on July 23, 1973, when she was 73 years
old. That will, which is in English, was
thumbmarked by her. She was illiterate. Her
letters in English to the Veterans Administration
were also thumbmarked by her. In that will,
Marcelina bequeathed all her estate to her
supposed granddaughter Marilyn. Marina Paje,
alleged to be a laundrywoman of Marcelina &
the executrixin her will filed a petition for the
probate of Marcelina’s alleged will. When Nenita
found out, she filed an opposition with the court
stating that Agapito was actually Marcelina’s
only heir. The trial court judge denied her
opposition. Should the judge be sanctioned for
his actions?
Held: YES. In this case, respondent judge, on
perusing the will and noting that it was written
in English and was thumbmarked by an
obviously illiterate testatrix, could have readily
perceived that the will is void. In the opening
paragraph of the will, it was stated that English
was a language ‘understood and known’ to the
testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix
‘and was translated into Filipino language.’ That
could only mean that the will was written in a
language not known to the illiterate testatrix
and, therefore, it is void because of the
mandatory provision of Art. 804 that every will
must be executed in a language or dialect
known to the testator. Thus, a will written in
English, which was not known to the Igorot
testator, is void & was disallowed.
Presumption of Compliance
 Neither the will nor the attestation clause
need state compliance with this
requirement. This can be proved by
extrinsic evidence.
 It may sometimes be presumed that the
testator knew the language in which the
will was written.
CASE: ABANGAN V. ABANGAN
Facts: It is alleged the records do notshow that
the testatrix knew the dialect in which the will is
written. Is this enough to invalidate the will?
Held: NO. The will states that it was executed in
the city of Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough, in
the absence of any proof to the contrary, to
presume that she knew this dialect in which this
will is written. Thus, in order for the
presumptions to apply, the ff. must appear:
1) The will must be in a language or dialect
generally spoken in the place of execution; and
2) The testator must be a native or resident of
said locality.
*NOTE: Properly speaking, compliance with the
language requirement is not then presumed but
proved by these attendant circumstances.
Q: A Filipino OFW who had been working in
Dubai for one year executed a will in the Arabic
language. It is being contested on the ground
that the will is not in a language known to the
testator. Is it valid or not?
A: The will is valid. There arises in jurisprudence
a presumption that the language in which the
will is written is known to the testator, so long
as a concurrence of the following is shown:
1) That the language is a dialect spoken in the
place of execution; &
2) That the testator is a resident of the place of
execution.
This presumption works in favor of the testator
in the instant case (i.e., the Filipino OFW);
therefore, the will is valid.
*Article 805. Every will, other than a
holographic will, must be subscribed at the end
thereof by the testator himself or by the
testator's name written by some other person
in his presence, & by his express direction, &
attested & subscribed by 3 or more credible
witnesses in the presence of the testator and of
one another.
The testator or the person requested by him to
write his name & the instrumental witnesses of
the will, shall also sign, as aforesaid, each &
every page thereof, except the last, on the left
margin, & all the pages shall be numbered
correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages
used upon which the will is written, and the
fact that the testator signed the will & every
page thereof, or caused some other person to
write his name, under his express direction, in
the presence of the instrumental witnesses,
and that the latter witnessed & 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. (n)
Class Discussion
Q: What happens if Starr, a testator, signs her
name in the form of a “star” symbol. Is this
valid?
A: ONLY if it is proven that it is Starr’s usual
signature. Otherwise, it is not really a signature
and will not be counted.
What is written in the attestation clause. Should
this be strictly construed?
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Go to the provision on substantial compliance.
Decisions of the SC on substantial compliance
always deal with the attestation clause.
There is substantial compliance if you can see it
from the face of the instrument itself. If the
following of this requisite is not visible on the
face, that is NOT allowed.
THERE MUST ALWAYS BE A SIGNATURE AT THE
END OF THE WILL.
There are other kinds of signatures: the cross,
the X, the thumbmark.
Q: The will of Pedro is typewritten, but the
attestation clause is in the handwriting of one of
the witnesses, because the typewriter had
broken down. Is the will valid or not?
A: The will is valid. The law does not require an
attested will to be entirely typewritten or
alternatively, entirely handwritten, unlike a
holographic will. Thus, such circumstance of a
partially typewritten, partially handwritten will is
not fatal to the validity of the will, so long as the
same complies with the requirements under
Arts. 805 & 806.
Article 806. Every will must be acknowledged
before a notary public by the testator & the
witnesses. The notary public shall not be
required to retain a copy of the will, or file
another with the office of the Clerk of Court.(n)
*Requirements for attested (ordinary or
notarial) wills
(T3T-SWIS-LAA – Tet-swiss laaaa!)
(1) Subscribed by the Testator or his agent in
his presence & by his express direction at the
end thereof, in the presence of the witnesses;
(2) Attested & subscribed by at least 3 credible
witnesses in the presence of the testator & of
one another;
(3) The Testator, or his agent, must Sign every
page, except the last, on the left margin in the
presence of the witnesses;
(4) The WItnesses must Sign every page, except
the last, on the left margin in the presence of
the testator & of one another;
(5) All pages numbered correlatively in Letters
on the upper part of each page;
(6) An Attestation clause, stating:
a) The number of pages of the will;
b) The fact that the testator or his agent
under his express direction signed the
will & every page thereof, in the
presence of the witnesses;
c) The fact that the witnesses witnessed &
signed the will and every page thereof in
the presence of the testator and one
another;
(7) Acknowledgment before a notary public.
Attestation Clause & Agent’s Signature
The attestation clause is not required to state
that the agent signed in the testator’s presence.

No Date Needed for Attested Wills
There is no requirement that an attested will
should be dated, unlike a holographic will
 Thus: A variance between the indicated
dates of execution & acknowledgment
does not in itself invalidate the will.
What is the Attestation Clause? (Caneda v. CA)
It is that part of an ordinary will whereby the
attesting witnesses certify that the instrument
has been executed before them & to the
manner of the execution of the same.
 It is a separate memorandum or record of
the facts surrounding the conduct of
execution & once signed by the witnesses,
it gives affirmation to the fact that
compliance with the essential formalities
required by law has been observed.
 It preserves in a permanent form a record
of the fact that attended the execution of
a particular will, so that in case of failure
of the memory of the attesting witnesses,
or other casualty, such facts may still be
proved.
CASE: PAYAD V. TOLENTINO
Facts: The testator placed her thumb mark on
each & every page of the questioned will & her
attorney merely wrote her name to indicate the
place where she placed said thumbmark. In
other words, her attorney did not sign for the
testatrix. The testator signed by placing her
thumb mark on each & every page thereof.
Held: This is VALID. A statute requiring a will to
be ‘signed’ is satisfied if the signature is made
by the testator’s mark. It is not necessary that
the attestation clause should state that the
testatrix requested her attorney to sign her
name, inasmuch as the testatrix signed the will,
through her thumbmark, in accordance with law.
CASE: MATIAS V. SALUD
Facts: Gabina Raquel, the testatrix, asked her
witnesses to gather around, & they watched as
she attempted to sign. Due to pain in her arm,
however, she did not attempt further, & instead
she just affixed her thumbmark on the pages.
The lawyer present also instructed Lourdes, a
witness, to write beside the thumbmark,
“Gabina Raquel by Lourdes Samonte.” The
contestant, however, urges that the fingermark
of the testatrix cannot be regarded as her valid
signature since it does not show distinct
identifying ridgelines; thus, the attestation
clause should be held defective because it fails
to state that Lourdes Samonte signed for the
testator under Gabina’s express direction. Is the
attestation clause valid?
Held: YES. This Court has repeatedly held that
the legal requisite that the will should be signed
by testator is satisfied by a thumbprint or other
mark affixed by him. As to the clarity of the
ridge impressions, it is so dependent on aleatory
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circumstances (consistency of the ink, over-
inking, slipping of the finger, etc.) as to require
a dexterity that can be expected of very few
persons; and testators should not be required to
possess the skill of trained officers. It is to be
conceded that where a testator employs an
unfamiliar way of signing, and both the
attestation clause and the will are silent on the
matter, such silence is a factor to be considered
against the authenticity of the testament; but
the failure to describe the unusual signature by
itself alone is not sufficient to refuse probate
when the evidence for the proponent fully
satisfies the court (as it does satisfy in this case)
that the will was executed and witnessed as
required by law.
Thumbmarks as Signature
These are always valid, even when the testator
is not sick.
 When the law says that the will shall be
“signed” by the testator, the law is
fulfilled by
o The testator’s customary written
signature
o The testator’s thumbmark
Class Discussion
Q: Suppose the agent wrote his own name but
on top of that, the testator put his thumbmark.
Is that a valid will?
A: YES. The thumbmark is already considered
the signature. The writing by the other person is
actually a surplusage.
Q: Because he was illiterate, Jose asked Jesus to
sign for him in his will. Jesus signed his own
name instead of the name of Jose. However, he
also had Jose place his thumbmark on top of
Jesus’ signatures. The thumbmarks are blurred
because of tremors of Jose’s hand. Is the will
valid or not?
A: The will is valid. As held by jurisprudence, the
thumbmark of the testator is a valid substitute
to his official signature & that the person
signing the testator's name need not write his
own. In the case at bar, even though Jesus
made the mistake of signing his own name
instead of Jose's, an act which may invalidate
the will, this does not matter because Jose was
able to subscribe to the will. The thumbmark of
Jose is sufficient proof that he subscribed the
will, and thus the will complies with the formal
requisites of the law.
CASE: DE GALA V. GONZALES
Facts: Testatrix signed using a thumb mark. In
the attestation clause, it is not mentioned that
the testatrix signed by thumb mark. But, in the
last par. of the will, she mentioned that she
signed it using her thumb mark. Is the will valid?
Held: YES. It appeared in the attestation clause
that the signature was affixed in the presence of
the witnesses, and the form of the signature is
sufficiently described and explained in the last
clause of the body of the will. It may be
conceded that the attestation clause does not,
standing alone, quite meet the requirements of
the statute, but taken in connection with the
last clause of the body of the will, it is fairly
clear and sufficiently carries out the legislative
intent.
CASE: CUEVAS V. ACHACOSO
Facts: The main error assigned refers to the
alleged lack of attestation clause in the will
under consideration, or to the fact that, if there
is such attestation clause, the same has not
been signed by the instrumental witnesses, but
by the testator himself, and it is claimed that
this defect has the effect of invalidating the will.
Is the will valid?
Held: YES. It substantially complies with the
statue. The apparent anomaly is not serious to
invalidate the will, it appearing that right under
the signature of the testator, there appear the
signatures of the 3 witnesses.
The fact that the instrumental witnesses signed
the will immediately under the signature of the
testator, shows that they have in fact attested
not only to the genuineness of his signature but
also to the due execution of the will as
embodied in the attestation clause.
As was said in one case, "the object of the
solemnities surrounding the execution of the
wills is to close the door against bad faith and
fraud, to avoid substitution of wills and
testaments and to guarantee their truth and
authenticity. Therefore the laws on this subject
should be interpreted in such a way as to attain
this primordial ends. But on the other hand, also
one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless, & frustrative of the
testator's will, must be disregarded.
Crosses as Signature
A sign of the cross placed by the testator does
not comply with the statutory requirement of
signature, unless it is the testator’s usual
manner of signature or one of his usual styles of
signing.
CASE: GARCIA V. LA CUESTA
Facts: The will of Antero Mercado was signed by
Atty. Javier, who wrote the former’s name,
followed below by ‘A ruego del testador’ and the
name of Florentino Javier. Antero Mercado is
alleged to have written a cross immediately
after his name. Is this a valid attestation clause?
Held: NO. The attestation clause is fatally
defective for failing to state that Antero Mercado
caused Atty. Javier to write the testator’s name
under his express direction, as required by Sec.
618 of the Code of Civil Procedure. The
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petitioner argues, however, that there is no
need for such recital because the cross written
by the testator after his name is a sufficient
signature & the signature of Atty. Javier is a
surplusage. But it is not pretended that the
cross appearing on the will is the usual
signature of Mercadoor even one of the ways by
which he signed his name. The Court thus chose
not to liken the mere sign of a cross to a
thumbmark.
*NOTE: There was no showing that the cross
mark was the testator’s habitual signature nor
was any explanation given why he should use a
cross when he knew how to sign. This is
different from Matias v. Salud, because there, it
was shown that the herpes zoster that afflicted
the right arm & shoulder of the testatrix made
writing a difficult & painful act, to the extent
that, after writing one signature on the second
page, she dropped the pen because of an attack
of pain that lasted many minutes, & evidently
discouraged attempts to sign.
Q: An attested will contains no date of its
execution, although the notarial certification
contains a date of acknowledgment. Is it valid or
not? Explain.
A: The will is valid. The law does not require an
attested will to contain a date of execution,
unlike in the case of a holographic will. Thus,
such defect of no date written is not fatal to the
validity of the will.
*Requisites: Signing by an Agent of the Testator
1. Agent must sign in testator’s presence, &
2. By his express direction
CASE: BARUT V. CABACUNGAN
Facts: Maria Salomon initially made a will.
However, after disposing of her property, the
testatrix revoked all former wills she made &
made a new one. She also stated in said new
will that, being unable to read or write, the
same had been read to her by Concepcion &
Inoselda, & that she had instructed Severo
Agayan to sign her name to it as testatrix. The
trial court disallowed the probate of this latest
will because the handwriting of the person who
it is alleged to have signed the name of the
testatrix for & on her behalf looked more like the
handwriting of one of the other witnesses to the
will, & not the handwriting of the person it was
alleged to be. Is this enough to invalidate the
will?
Held: NO. With respect to the validity of the will,
it is unimportant whether the person who writes
the name of the testatrix signs his own or not.
The important thing is that it clearly appears
that the name of the testatrix was signed at her
express direction in the presence of 3 witnesses
& that they attested & subscribed it in her
presence & in the presence of each other. That
is all the statute requires. It may be wise that
the one who signs the testator’s name signs
also his own; but that is not essential to the
validity of the will. Whether one person or
another signed the name of the testatrix in this
case is absolutely unimportant so far as the
validity of her will is concerned. The plain
wording of the statute shows that the
requirement laid down by the trial court is
unnecessary under the law.
Nor is such requirement found in any other
branch of the law. Another may sign the name
of a person who is unable to write by express
direction to any instrument known to the law.
There is no necessity whatever, so far as the
validity of the instrument is concerned, for the
person who writes the name of the principal in
the document to sign his own name also. The
main thing to be established in the execution of
the will is the signature of the testator. If that
signature is proved, whether it is written by
himself or by another at his request, it is valid.
To hold a will invalid for the lack of the signature
of the person signing the name of the principal
is, in the particular case, a complete abrogation
of the law of wills, as it destroys a will which is
valid.
May the Agent Be One of the Attesting
Witnesses?
If there are more than 3 Sure, why not?!
witnesses
If there are only 3 Uncertain.
witnesses
Signing at the End
 If the will contains only dispositive
provisions, there will be no ambiguity as
to where the end of the will is.
 BUT: If the will contains non-dispositive
paragraphs after the testamentary
dispositions, one can refer to two kinds of
end:
o The physical end—where the writing
stops; or
o The logical end—where the last
testamentary disposition ends.
 Signing before the end invalidates the
ENTIRE WILL, & not just the dispositions
that come after.
CASE: NERA V. RIMANDO
Facts: There was a factual issue as to the
presence & vicinity of one of the subscribing
witnesses in the small room when the testator &
the other subscribing witness were attaching
their signatures to the will. However, it was
determined, factually, that all the witnesses
were in the small room when the signing
occurred. Should the document be admitted to
probate?
Held: YES, based on the facts. HOWEVER, had
the other subscribing witness NOT been in the
room nor even in the small room, the will would
not have been admitted to probate. The
attaching of the signatures MUST be done in the
presence of the 2 required witnesses & the
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testator. In fact, the parties have to be in the
line of vision of the document “at the moment
of inscription of each signature."
The true test of presence of the testator and the
witnesses in the execution of a 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 position with
relation to each other at the moment of
inscription of each signature. The position of the
parties with relation to each other at the
moment of the subscription of each signature,
must be such that they may see each other sign
if they choose to do so. There should be no
physical obstruction (i.e., a wall or a curtain)
preventing all the parties from seeing.
Class Discussion
Q: What if the testator signed the will on her
deathbed but the three witnesses were all
watching volleyball on the TV in her room when
they signed. Is this valid?
A: YES. So long as they COULD have seen it.
What the 3 Witnesses Have to Do
1. Attesting —the act of witnessing
2. Subscribing —the act of signing their
names in the proper places of the will
CASE: TABOADA V. HON. ROSAL
Facts: The witnesses’ signatures were not found
at the end, as the law requires, but on the left-
hand margin of the last page. Does this
invalidate the will?
Held: NO. While perfection in the drafting of a
will may be desirable, unsubstantial departure
from the usual forms should be ignored,
especially where the authenticity of the will is
not assailed. Literally & ideally, the witnesses
should sign at the end of the will, though failure
in this regard may be overlooked.
Signing in the Presence of the Testator & One
Another
The testator, or his agent, must sign every
page, except the last, on the left margin in the
presence of the witnesses
 The last page need not be signed by the
testator on the margin because, being the
page where the end of the will is, it
already contains the testator’s signature
 There is a mandatory & directory part
here –
o Mandatory - the signing on every
page in the witnesses’ presence
o Directory - the place of signing, (i.e.
the left margin); the signature can
be affixed anywhere on the page
 If the entire document consists of only 2
sheets, the first containing the will and
the second, the attestation clause, there
need not be any marginal signatures at all

CASE: ICASIANO V. ICASIANO
Facts: In this case, the records show that the
original of the will consists of 5 pages, and while
signed at the end and in every page, it does not
contain the signature of one of the attesting
witnesses, Atty. Natividad, on page 3 thereof;
but the duplicate copy attached to the amended
and supplemental petition was signed by the
testatrix & the 3 witnesses on each & every
page. Should the will be admitted to probate?
Held: YES. The inadvertent failure of one witness
to affix his signature on one page, due to the
simultaneous lifting of two pages in the course
of signing, is not per se sufficient to justify
denial of probate. Impossibility of substitution of
this page is assured not only the fact that the
testatrix & 2 other witnesses did sign the
defective page, but also by its bearing the
coincident imprint of the seal of the notary
public before whom the testament was ratified
by testatrix & all 3 witnesses. The law should
not be so strictly & literally interpreted as to
penalize the testatrix on account of the
inadvertence of a single witness over whose
conduct she had no control, where the purpose
of the law to guarantee the identity of the
testament and its component pages is
sufficiently attained, no intentional or deliberate
deviation existed, and the evidence on record
attests to the full observance of the statutory
requisites. Otherwise, witnesses may sabotage
the will by muddling or bungling it or the
attestation clause. It is the Court’s policy to
require satisfaction of the legal requirements in
order to guard against fraud and bad faith but
without undue or unnecessary curtailment of
the testamentary privilege.
*Note: This doesn’t necessarily mean that
carbon copies will be allowed at all times; it’s
circumstantial.
Previous Jurisprudence
 A testament, with the only page signed at
its foot by testator and witnesses, but not
in the left margin, could nevertheless be
probated
 Despite the requirement for the
correlative lettering of the pages of a will,
the failure to make the first page either by
letters or numbers is not a fatal defect
Order of Signing
 The order immaterial, provided everything
is done in a single transaction.
 BUT: If the affixation of the signatures is
done in several transactions, then it is
required for validity that the testator affix
his signature ahead of the witnesses.
Numbering of Pages
All pages numbered correlatively in letters on
the upper part of each page.
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 Mandatory – pagination by means of a
conventional system; this is to prevent
insertion or removal of pages
 Directory – the pagination in letters on
the upper part of each page
What Attestation Clause Must State
1. The number of pages of the will;
2. The fact that the testator or his agent
under his express direction signed the will
& every page thereof in the presence of
the witnesses; &
3. The fact that the witnesses witnessed &
signed the will & every page thereof in the
presence of the testator & of one another.
Signing of the Attestation Clause
 The testator need not sign the attestation
clause
 It is the witnesses who must sign, & they
must sign at the bottom of the attestation
clause
CASE: CAGRO V. CAGRO
Facts: In this case, the attesting witnesses did
not sign the will’s attestation clause. The
signatures of the 3 witnesses to the will do not
appear at the bottom of the attestation clause,
although the page containing the same is
signed by the witnesses on the left-hand
margin. Is the will valid?
Held: NO. The signatures on the left-hand
margin are in compliance with the legal
mandate that the will be signed on the left-hand
margin of all its pages. Thus, it is not considered
signed in relation to the attestation clause. If an
attestation clause not signed by the witnesses
at the bottom thereof, be admitted as sufficient,
it would be easy to add such clause to a will on
a subsequent occasion and in the absence of
the testator and any or all of the witnesses.
*Dissent: The only objection set up by the
oppositors to the validity of the will is the fact
that the signatures of the instrumental
witnesses do not appear immediately after the
attestation clause. This objection is too technical
to be entertained.
Unsigned Attestation Clauses
The ruling in Cagro was affirmed in the case of
Azuela: “An unsigned attestation clause cannot
be considered as an act of the witnesses since
the omission of their signatures at the bottom
thereof negatives their participation.”
CASE: AZUELA V. CA
Facts: The will in this case had the ff. issues –
1. The attestation clause failed to state the
number of pages used in writing the will.
2. The attestation clause was not signed by
instrumental witnesses. While the
signatures of the witnesses appear on the
left-hand margin of the will, they do not
appear at the bottom of the attestation
 clause which consists of their averments
before the notary public.
3. The notary public wrote, "Nilagdaan ko at
ninotario ko ngayong 10 ng Hunyo 1981
dito sa Lungsod ng Maynila."
Held: The will is INVALID.
 A will whose attestation clause does not
contain the number of pages on which the
will is written is fatally defective.
o This is a fatal flaw, since the purpose
of the law in requiring the clause to
state the number of pages on which
the will is written is to safeguard
against possible interpolation or
omission of one or some of its pages
to prevent any increase or decrease
in the pages. Substantial compliance
would exist where the will states
elsewhere in it how many pages it is
comprised of; but here, there was no
such statement, hence there was no
substantial compliance.
 A will whose attestation clause is not
signed by the witnesses is fatally
defective.
o An unsigned attestation clause
cannot be considered as an act of the
witnesses, since the omission of their
signatures at the bottom thereof
negatives their participation. Further,
Art. 805 particularly segregates the
requirement that witnesses sign each
page of the will from the requirement
that the will be attested and
subscribed by the witnesses. The two
classes of signatures are distinct
from each other. The signatures on
the left-hand margin signify that the
witnesses are aware that the page
they are signing forms part of the
will, while the signatures at the
bottom of the attestation clause
establish that the witnesses are
referring to the statements contained
therein.
 A will without an acknowledgment, but a
mere jurat, is fatally defective. Any one of
these defects is sufficient to deny probate.
o These words cannot be construed as
an acknowledgment, which is the act
of one who has executed a deed in
going before some competent officer
or court & declaring it to be his act or
deed. It is possible to construe the
averment as a jurat (part of the
affidavit where the notary certifies
that before him, the document was
sworn to and subscribed by the
executor).
o Art. 896 expressly requires that the
will be "acknowledged" ant not
merely subscribed or sworn to. A
notarial will that is not acknowledged
before a notary public by the testator
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and the witnesses is fatally defective,
even if it is subscribed & sworn to
before a notary public.
 A notarial will with all 3 defects is just
aching for judicial rejection.
Attestation Clauses on a Separate Page
An attestation clause written on a separate
page does not affect the validity of the will.
Mandatory Nature of the Attestation Clause
 Attestation clauses are mandatory for
attested wills
 They are separate & distinct from the
acknowledgment clause
 The attestation & acknowledgment clause
cannot be merged
Acknowledgment before a Notary Public
 The act of one who has executed a deed
in going before some competent officer or
court & declaring it to be his act or deed.
 The signatory declares to the notary
public that the document was executed as
his or her own free act or deed.
CASE: JAVELLANA V. LEDESMA
Facts: Apolinaria executed a will in Visayan
dialect before she died. In controversy is the
fact that the notary public, Gimotea, did not
execute the acknowledgment in the presence of
the testator & the 3 witnesses. Instead, Gimotea
brought the codicil to his office & signed &
sealed it there. Is the will still valid?
Held: YES. Whether or not the notary signed the
certification of acknowledgment in the presence
of the testatrix and the witnesses, does not
affect the validity of the codicil. The Code does
not require that the signing of the testator,
witnesses & notary should be accomplished in
one single act.
Other Things Inferred About Acknowledgments
 The testator & witnesses need not
acknowledge on the same day the will was
executed.
 The testator & witnesses need not
acknowledge in each other’s presence.
o BUT: If the acknowledgment is done
by the testator & witnesses
separately, all of them must retain
their respective capacities until the
last one has acknowledged.
Class Discussion
Q: Do the witnesses and the testator need to go
to the notary public at the same time?
A: They need not go together; in fact, they can
go meet the notary public separately.
Q: Why is it not necessary for the notary public
to submit the will to the clerk of court, though
he must usually do so for other documents?
A: Because of the nature of a will – it is a
confidential statement which may be revoked.
CASE: CRUZ V. VILLASOR
Facts: There were 3 witnesses who
acknowledged the will in this case, but the 3 rd
witness who acknowledged the will was the
notary public himself. Is this valid?
Held: NO. The notary public cannot be counted
as one of the attesting witnesses. He cannot
acknowledge before himself his having signed
the will. To acknowledge before means to avow;
to own as genuine, to assent, to admit; and
‘before’ means in front or preceding in space or
ahead of. Consequently, if the 3rd witness were
the notary public himself, he would have to
avow, assent, or admit his having signed the will
in front of himself. This cannot be done because
he cannot split his personality into two so that
one will appear before the other to acknowledge
his participation in the making of the will. To
permit such a situation to obtain would be
sanctioning a sheer absurdity.
CASE: LEE V. TUMBAGO
Facts: The will here was only attested by 2
witnesses. Also, there was a conspicuous
absence of a notation of the residence
certificates of the notarial witnesses in the
acknowledgment. Similarly, it was the testator’s
old residence certificate that was made a
notation in the same acknowledgment. Is the
will valid?
Held: NO. There should be 3 witnesses at least.
Also, a cursory examination of the
acknowledgment of the will in question shows
that this particular requirement was neither
strictly nor substantially complied with. The
omissions by respondent invalidate the will.
These formalities are mandatory and cannot be
disregarded, considering the degree of
importance and evidentiary weight attached to
notarized documents. A notary public, especially
a lawyer, is bound to strictly observe these
elementary requirements.
Additional Rules on Notary Publics
 The notary public must be duly
commissioned for the locality where the
acknowledgment is made. Otherwise, the
notarization & the will is void.
 Affixing the documentary stamp – not
required for validity.
CASE: GUERRERO V. BIHIS
Facts: The will was acknowledged by the
testatrix and the witnesses at the testatrix’s
witnesses in Quezon City before a notary public
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who was commissioned for and in Caloocan City.
Is the will valid?
Held: NO. The notary public was acting outside
the place of his commission, and this did not
satisfy Art 806. No notary shall possess
authority to do any notarial act beyond the
limits of his jurisdiction.9
Since the notary was not a commissioned notary
public for and in Quezon City, he lacked the
authority to take the acknowledgment of the
testratix & the instrumental witnesses. In the
same vein, the testratix and the instrumental
witnesses could not have validly acknowledged
the will before him. Thus, Felisa Tamio de
Buenaventura’s last will and testament was, in
effect, not acknowledged as required by law.
Class Discussion
Q: An attested last will and testament contains
no date of its execution, although the notarial
certification contains a date of
acknowledgment. Is it valid or not? Explain.
A: The will is valid. The law does not require an
attested will to contain a date of execution,
unlike in the case of a holographic will. Thus,
such defect of no date written is not fatal to the
validity of the will.
Article 807. If the testator be deaf, or a deaf-
mute, he must –
 Personally read the will, if able to do so;
 Otherwise, he shall designate 2 persons
to read it & communicate to him, in some
practicable manner, the contents thereof.
(n)
Article 808. If the testator is blind, the will
shall be read to him twice –
 Once, by one of the subscribing
witnesses, &
 Again, by the notary public before whom
the will is acknowledged. (n)
Class Discussion
Q: What are the additional requisites of an
attested will if the testator is deaf and dumb?
A: If the testator is deaf and dumb, Art. 807
requires the testator to personally read the will,
if he is able to do so; otherwise, 2 other persons
must, in a practicable manner, communicate
the contents of the will to the testator.
Application of Art. 808
Art. 808 applies not only when a testator is blind
per se, but also when his vision has becomes so
bad that he is not capable of reading the will
himself to check for conformity with his
instructions.
9 Sec. 240 of the notarial law provides: The jurisdiction of a
notary public in a province shall be co-extensive with the
province. The jurisdiction of a notary public in the City of
Manila shall be co-extensive with said city. No notary shall
possess authority to do any notarial act beyond the limits of
his jurisdiction.

CASE: GARCIA V. VASQUEZ
Facts: Gliceria supposedly wrote out a will
before she died in the presence of attesting
witnesses & assisted by Precilla. Gliceria had
apparently read the will before signing. But
factually, it was found by the doctor (who was
presented as witness) that Gliceria could not
read with her eyes anymore, & could only see
forms (like the shapes of fingers); this was true
even if she could still perform tasks in the
kitchen, among others. Is the will she
supposedly executed by just reading valid, given
the evidence?
Held: NO. For the purpose of the will, the Court
considered Gliceria blind & required compliance
with Art. 808. The rationale behind the
requirement of 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. This insures that the will is
properly understood by the handicapped
testator, making it truly reflective of his desire.
Thus, the will should be –
1. Read to the blind or illiterate testator
2. Not only once, but twice,
3. By two different persons, &
4. The witnesses have to act within the
range of the testator's other senses.
In this case, there is nothing to show that the
above requisites have been complied with. Also,
there was evidence that the will was hastily
done (there were lots of typos that the testator
should have been alerted about when she read
the will, among others). Thus, the will cannot be
probated.
*Note: In the en banc decision of this case, SC
remanded the case to the trial court for a
factual determination of Gliceria’s blindness; but
the doctrine remains the same.
Substantial Compliance with Arts. 807 & 808
Sufficient
The requirements in Arts. 807 & 808 are
liberally construed by the SC.
CASE: ALVARADO V. GAVIOLA, JR.
Facts: 79-year-old Brigido executed a notarial
will where he disinherited his illegitimate son
(petitioner) & expressly revoked a previously
executed holographic will at the time awaiting
probate at RTC Laguna. As testified by the 3
instrumental witnesses, the notary public & by
respondent who were present at the execution,
the testator did not read the final draft of the
will himself. Instead, respondent, as the lawyer
who drafted the document, read the same aloud
in the presence of the testator, the witnesses &
the notary public. The latter four followed the
reading with their own respective copies
previously furnished them. Now, the validity of
this will is in dispute. It was factually determined
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that Brigido could no longer read, but could still
see forms.
Respondent argues that, given the facts, this
should already be considered substantial
compliance, while petitioner maintains that the
only valid compliance is a strict compliance &
since it is admitted that neither the notary
public nor an instrumental witness read the
contents of the will to Brigido, probate of the
latter’s will should have been disallowed. Can
the will be admitted to probate?
Held: YES. That Art. 808 was not followed
strictly is beyond cavil. Instead of the notary
public & an instrumental witness, it was the
lawyer (respondent) who drafted the will & who
read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
But SC held that substantial compliance is
acceptable where the purpose of the law has
been satisfied, as solemnities surrounding the
execution of wills are intended to protect the
testator from all kinds of fraud and trickery but
are never intended to be so rigid & inflexible as
to destroy the testamentary privilege.
In the case at bar, respondent read the
testator’s will aloud in the presence of the
testator, his instrumental witnesses, & the
notary public. Prior & subsequent thereto, the
testator affirmed, upon being asked, that the
contents read corresponded with his
instructions. Only then did the signing &
acknowledgment take place. There is no
evidence that the contents of the will & codicil
were not sufficiently made known to the
testator.
Moreover, it was not only respondent who read
the documents. The notary public and the
witnesses likewise read the will, albeit silently.
Afterwards, the notary public & one of the
instrumental witnesses (who was also the
testator’s physician) asked the testator whether
the contents of the documents were of his own
free will. Brigido answered in the affirmative.
With 4 persons following the reading word for
word with their own copies, it can be safely
concluded that the testator was reasonably
assured that what was read to him were the
terms actually appearing on the typewritten
documents. This is especially true considering
that the three instrumental witnesses were
persons known to the testator, one being his
physician and another being known to him since
childhood.
The spirit behind the law was served though the
letter was not. Although there should be strict
compliance with the substantial requirements of
the law in order to insure the authenticity of the
will, the formal imperfections should be brushed
aside when they do not affect its purpose and
which, when taken into account, may only
defeat the testator’s will.
Lessons from Garcia & Alvarido
  Failure to comply with either Art. 807 or
808, when necessary, would result in
nullity & denial of probate.
 The burden of proof is upon the proponent
of the will that the special requirements of
Art. 807 or 808 were complied with.
 There is no requirement that compliance
with Art. 807 or 808 be stated either in
the will or attestation clause.
 Art. 808 applies also to illiterate testators.
Q: If an attested will is written in Braille and can
be “read” by a blind testator by touch, is it still
required that the same be read to him by a
witness and the notary?
A: No, it is not requires that the will be read to
the blind testator by a witness and the notary.
The purpose of the testator to make sure that
what is in the will is what he really wills. The
reason why there has to be 2 different persons
who will read it is to make sure what is read to
the testator is what is really written in the will.
In this case, it can be said that there is
substantial compliance with the law since at the
end of the day, the purpose of the law was met.
The testator understood what is in the will since
it was written in braille.
*Article 809. In the absence of bad faith,
forgery, or fraud, or undue and improper
pressure and influence, defects & imperfections
in the form of attestation or in the language
used therein shall not render the will invalid if it
is proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of Art. 805. (n)
Note on Art. 809
 This provision on substantial compliance
pertains to the attestation clause of an
attested will.
 But SC has also used the standard of
substantial compliance in other Arts. (like
Art. 808)
Rewording by Justice Reyes (because this
provision is WAY too liberal)
In the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence,
defects & imperfections in the form of
attestation or in the language used therein shall
not render the will invalid if such defects and
imperfections can be supplied byan
examination of the will itself & it is proved that
the will was in fact executed & attested in
substantial compliance with all the requirements
of Art. 805.
Illustrative Examples
1. A failure by the attestation clause to state
that the testator signed every page can
be liberally construed, since that fact can
be checked by a visual examination. Other
examples –
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 Whether the pages are
consecutively numbered
 Whether the signature of all
parties appear at every page
 Whether there were 3 subscribing
witnesses
 Whether the will was notarized
2. A failure by the attestation clause to state
that the witnesses signed in one another’s
presence should be considered a more
serious, indeed a fatal, flaw, since the
attestation clause is the only textual
guarantee of compliance. Another
example is the total number of pages.
CASE: CANEDA V. CA
Facts: The oppositors of the will in this case
asserted that the will in question is void
because its attestation clause is fatally
defective since it fails to specifically state that
the instrumental witnesses to the will witnessed
the testator signing the will in their presence
and that they also signed the will & all the
pages thereof in the presence of the testator &
of one another. The will reads –
“We, the undersigned attesting Witnesses,
whose Residences and postal addresses
appear on the Opposite of our respective
names, we do hereby certify that the
Testament was read by him and the testator,
MATEO CABALLERO, has published unto us
the foregoing Will consisting of 3 pages,
including the Acknowledgment, each page
numbered correlatively in letters on the
upper part of each page, as his Last Will and
Testament and he has signed the same and
every page thereof, on the spaces provided
for his signature and on the left hand margin,
in the presence of the said testator and in the
presence of each and all of us.”
Is the will void?
Held: YES. Attestation consists in witnessing the
testator’s execution of the will in order to see
and take note mentally that those things are
done which the statute requires for the
execution of a will and that the signature of the
testator exists as a fact. On the other hand,
subscription is the signing of the witnesses’
names upon the same paper for the purpose of
identification of such paper as the will which
was executed by the testator. As it involves a
mental act, there would be no means, therefore,
of ascertaining by a physical examination of the
will whether the witnesses had indeed signed in
the presence of the testator an of each other
unless this is substantially expressed in the
attestation.
What is fairly apparent upon a careful reading of
the attestation clause herein assailed is that
while it recites that the testator indeed signed
the will & all its pages in the presence of the 3
attesting witnesses & states as well the number
of pages that were used, the same does not
expressly state therein the circumstance that
said witnesses subscribed their respective
signatures to the will in the presence of the
testator & of each other. The absence of that
statement required by law is a fatal defect
which must necessarily result in the
disallowance of the will that is sought to be
admitted to probate.
The manner of proving the due execution and
attestation has been held to be limited to
merely an examination of the will itself without
resorting to evidence aliunde, whether oral or
written. As such, in this case, there is no other
way to confirm whether or not the witnesses
signed the attestation clause in the presence of
the testator & each other.
The rule on substantial compliance in Art. 809
cannot be invoked by respondents since it
presupposes that the defects in the attestation
clause can be cured or supplied by (1) thetext of
the will or (2) a consideration of matters
apparent therefrom which would provide the
data not expressed in the attestation clause or
from which it may necessarily be clearly inferred
that the acts not stated in the omitted textual
requirements were actually complied with in the
execution of the will.
An omission which can be supplied by an
examination of the will itself, without the need
of resorting to extrinsic evidence, will not be
fatal and, correspondingly, would not obstruct
the allowance to probate of the will being
assailed. However, those omissions which
cannot be supplied except by evidence aliunde
would result in the invalidation of the attestation
clause and ultimately, of the will itself.
Interesting Takeaways from Ratio of Caneda
 In attested wills, the attestation clause
need not be written in a language or
dialect known to the testator since it does
not form part of the testamentary
disposition.
 The attesting witnesses also need not
know the language used in the attestation
clause, so long as it is interpreted for the
witness.
 The attestation clause need not be signed
by the testator; only the attesting
witnesses must sign.
 The execution of a will is supposed to be
one act so that where the testator & the
witnesses sign on various days or
occasions and in various combinations,
the will cannot be stamped with the
imprimatur of effectivity.
CASE: AZULEA V. CA (2006)
Facts: The will failed to contain the total number
of pages. Is this defect fatal?
Held: YES. The failure of the attestation clause
to state the number of pages on which the will
was written is a fatal flaw, despite Art. 809. The
purpose of requiring the clause to state the
number of pages was to safeguard against the
possible interpolation or omission of one or
some of its pages & to prevent any increase or
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decrease of the number of pages. There is thus
no substantial compliance.
CASE: LOPEZ V. LOPEZ (2012)
Facts: An 8-page will had an attestation clause
which stated that the will “consists of 7 pages
including the page on which the ratification &
acknowledgment are written.” Is this valid?
Held: NO. The will actually consists of 8 pages
including its acknowledgment, which
discrepancy cannot be explained by mere
examination of the will itself but through the
presentation of evidence aliunde.
CASE: CELADA V. AVENA (2008)
Facts: The attestation clause mistakenly stated
that the will had 3 pages, when it actually only
had 2. Is this fatal?
Held: NO. The pagination in letters was a
sufficient safeguard of the will’s integrity. While
it is true that the attestation clause is not a part
of the will, the court, after examining the totality
of the will, is of the considered opinion that error
in the number of pages of the will as stated in
the attestation clause is not material to
invalidate the subject will. It must be noted that
the subject instrument is consecutively lettered
with pages A, B, and C, which is a sufficient
safeguard from the possibility of an omission of
some of the pages. The error must have been
brought about by the honest belief that the will
is the whole instrument consisting of 3 pages
inclusive of the attestation clause and the
acknowledgement. The position of the court is in
consonance with the "doctrine of liberal
interpretation" enunciated in Article 809 of the
Civil Code.
Balane: An omission of the total number of
pages in the attestation clause should, pursuant
this ruling, not be so fatal.
CASE: TESTATE ESTATE OF THE LATE ALIPIO ABADA V.
ABAJA
Facts: Caponong-Noble alleges that Abada’s will
should be invalidated because –
1. The attestation clause fails to state the
number of pages on which the will is
written.
2. The attestation clause fails to state
expressly that the testator signed the will
& its every page in the presence of 3
witnesses.
3. The attestation clause does not indicate
the number of witnesses who signed.
4. Finally, Caponong-Noble alleges that the
attestation clause does not expressly
state the circumstances that the
witnesses witnessed and signed the will
and all its pages in the presence of the
testator and of each other.
Is the will valid?
Held: The allegation has no merit.
1. The phrase in the left margin of each of
the 2 pages of the will shows that it
consists of 2 pages. The pages are
 numbered correlatively with the letters The holographic will must be:
"ONE" and "TWO." 1. Completely written by the testator
2. The first sentence of the attestation 2. Dated by him; &
clause reads: "Subscribed by the testator 3. Signed by him.
Alipio Abada as his last will in our
presence, the testator having also signed Can a lost holographic will be proven?
it in our presence on the left margin of NO, unless you can get a photocopy, and 1-2
each and every one of the pages of the witnesses can testify that that is the
same." The attestation clause clearly handwriting of the decedent. If you cannot even
states that Abada signed the will and its find a facsimile or copy, then it can never be
every page in the presence of the proven.
witnesses.
3. The rule on substantial compliance in Advantages & Disadvantages
determining the number of witnesses.
While the attestation clause does not 1. According to JBL Reyes
state the number of witnesses, a close Advantages (BISS) Disadvantages (FIT)
inspection of the will shows that 3 1. Brevity 1. Forgery
witnesses signed it. An attestation clause 2. Inexpensiveness 2. Increased risk of
is made for the purpose of preserving, in 3. Simplicity duress
permanent form, a record of the facts 4. Secrecy 3. Difficulty of
attending the execution of the will, so that determining
in case of failure of the memory of the Testamentary
subscribing witnesses, or other casualty, capacity
they may still be proved. A will, therefore,
should not be rejected where its 2. According to 2015 Quiz
attestation clause serves the purpose of Advantages Disadvantages
the law. Abada’s will clearly shows 4 1. The law requires a 1. A holographic will
signatures: that of Abada and of 3 other holographic will to be cannot be partly
persons. It is reasonable to conclude that entirely written, handwritten &
there are 3 witnesses to the will. The signed and dated by typewritten;
question on the number of the witnesses the hand of the otherwise, it is void;
is answered by an examination of the will testator; 2. Each and every
itself & without the need for presentation 2. It requires no other disposition must be
of evidence aliunde. form than that signed and dated, or if
4. The last part of the attestation clause required by law; not all are dated, it is
states "in its witness, every one of us also 3. It may be executed enough that the last
signed in our presence & of the testator." inside and outside the disposition is dated;
This clearly shows that the attesting Philippines; 3. To prove its due
witnesses witnessed the signing of the will 4. It does not require execution, only one
of the testator, & that each witness signed the presence of witness who knows
the will in the presence of one another instrumental the handwriting and
and of the testator. witnesses; signature of the
Ultimately, the will is valid. 5. It does not need to testator is required. If
be acknowledged the will is contested,
Q: Art. 809 pertains to the attestation clause. before a notary public; three witnesses shall
Will this apply to the will itself? 6. Where the will is be required. If the
A: Generally, no. contested and the 3 three witnesses are
witnesses are required unavailable, an expert
Q: What if the number of pages is not stated in by law cannot be witness may testify as
the attestation clause but it is stated in the will. complied with, the to its authenticity,
Would it be valid? court may order an whenever the court
A: It is VALID. expert witness to deems it necessary; &
determine the 3. From a practical
Q: What if instead of writing an attestation, the authenticity of the perspective, a
notary public wrote a jurat? Is that sufficient? handwriting and holographic will may
A: NOT SUFFICIENT. signature of the be unintelligible, if the
testator. handwriting of the
*Article 810. A person may execute a testator cannot be
holographic will which must be entirely written, understood.
dated, & signed by the hand of the testator
himself. It is subject to no other form, and may Validity Dependent on Handwriting
be made in or out of the Philippines, and need  Holographic wills are completely
not be witnessed. (678, 688a) dependent on the authenticity of the

Requisites under Art. 810

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 handwriting, as may be proven by writing
standards or by witnesses.
 The will could just say, “All to X.” with a
date & signature, and that will be
considered valid already.
Completely Written by Testator
If it is partially written by him and partially not
written by him, it is VOID.
Date Requirement
The general rule on the matter is that the date,
month, and year must be included. But SC has
ruled otherwise.
CASE: ROXAS V. DE JESUS
Facts: The date written on the holographic will
was “FEB./61” without providing the day. Is this
valid?
Held: YES. It was held that this was valid
already, so long as there is no appearance of
fraud, bad faith, undue influence and pressure,
and the authenticity of the will is established.
Furthermore, a full date with month, year, & day
is seen as essential in a situation where there
are two competing wills & it is necessary to
decide which is later in time. Where this is not a
problem, however, the will is valid.
*Note: Balane thinks this was too liberal.
Q: Tiburcio wrote a will dated “August 2016.” Is
this a valid will?
A: YES. The will is valid so long as the
holographic will is probated, & its authenticity is
not contested. In Roxas v. De Jesus, the testator
wrote “Feb ‘61” as the date in his holographic
will, without writing the specific day on which he
signed it. Nevertheless, the will was probated.
CASE: LABRADOR V. CA
Facts: The holographic will contained a
statement wherein the testator said, “On this
day on which we agreed to make the
partitioning… On the 17th day, in the year
1968.” The document itself is not dated except
for this statement within the disposition. Is this
already compliant with the date requirement?
Held: YES. The law does not specify a particular
location where the date should be placed in the
will. The only requirements are that the date be
in the will itself and executed in the hand of the
testator. The will is valid.
Signed by the Testator
Things implied:
 The signature should be at the end of the
will.
 A thumb mark would not qualify as a
signature, since it must be signed “by the
hand” of the testator.
Q: A holographic will is dated “Mother’s Day,
2014” in the handwriting of the testator. Is it
valid or not?
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A: Yes, it is valid. Jurisprudence has recognized
the validity of holographic wills with dates such
as “Christmas Day of 2015” and “New Year of
2015,” since these dates can easily be
ascertained by just looking at a calendar.
Q: A holographic will has five additional
dispositions, numbered 1 to 5, after the
testator’s signature. Only no. 5 is dated and
signed by the testator. What is the effect?
A: The effect is that the first 4 additional
dispositions are not valid nor effectual. Only the
5th additional disposition is valid, given that it
complied with the twin requirements prescribed
by Art. 813 of dating and signing. Art. 813
provides that if additional dispositions are not
dated, the last additional disposition which is
dated and signed shall have the effect of
making the undated additional dispositions valid
as to the date so provided. However, the
curative effect of Art. 813 does not apply in the
instant case, because the earlier additional
dispositions were not only lacking a date, but
also a signature. Therefore, only the 5th
additional dispositions is valid.
Q: How do you prove a holographic will?
A: According to the case of Casaula, the
testimony of 1 witness is enough if not
contested; if contested, there should be 3. In
another case, it said that even if it is contested,
the testimony of one will be sufficient. The
reason is that what the issue is in every probate
is the handwriting of the testator. If 1 witness
can testify clearly and credibly that that is the
testator’s handwriting, that is enough.
Article 811. In the probate of a holographic
will, it shall be necessary that at least 1
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 3 of such witnesses shall be
required.
In the absence of any competent witness
referred to in the preceding paragraph, and if
the court deem it necessary, expert testimony
may be resorted to. (619a)
Post Mortem Probates Only
This article refers only to post mortem probates.
It the testator himself initiates the probate, he
will identify the document himself.
Rules of Court – Proof of Handwriting
The Rules state that the genuineness of
handwriting may be proved by the ff.: (SOCE)
1. A witness who actually Saw the person
writing the instrument;
2. A witness familiar with his handwriting
and who can give his Opinion thereon,
such opinion being an exception to the
opinion rule;
 3. A Comparison by the court of the
questioned handwriting and admitted
genuine specimen thereof; and
4. Expert evidence.
Three-Witness Provision
This is only directory; it is not mandatory.
CASE: AZAOLA V. SINGSON
Facts: In the case, the decedent Yance died &
left a holographic will. The witness, Azaola, was
able to confirm the will’s authenticity. The
oppositors protested that the will should be
invalidated because only 1 witness confirmed
Yance’s handwriting, and because the will was
made under duress; as such, Yance did not
intend the will to be her last will and testament.
Is the oppositor correct?
Held: NO. Where the authenticity of the will is
not contested, one is not required to produce
more than one witness, especially since no
witness may have been present at the execution
of a holographic will, none being required by
law.
As to requiring expert testimony, under Art. 811,
the resort to expert evidence is conditioned by
the words “if the Court deem it necessary,”
which reveal that what the law deems essential
is that the Court should be convinced of the
will’s authenticity. Where the prescribed number
of witnesses is produced and the court is
convinced by their testimony that the will is
genuine, it may consider it unnecessary to call
for expert evidence. On the other hand, if no
competent witness is available, or none of those
produced is convincing, the Court may still, and
in fact it should, resort to handwriting experts.
The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the State is as
much interested as the proponent that the true
intention of the testator be carried into effect.
And because the law leaves it to the trial court
to decide if experts are still needed, no
unfavorable inference can be drawn from a
party’s failure to offer expert evidence, until and
unless the court expresses dissatisfaction with
the testimony of the lay witnesses.
Thus, the rule of the 1st par. of Art. 811 is
merely directory and is not mandatory.
CASE: CODOY V. CALUGAY
Facts: 6 witnesses were presented to
authenticate the holographic will of the
decedent, as there was a contention as to the
authenticity of the will. One of them was the
clerk of court, who produced the documents
with the decedent’s handwriting to compare
with the will. The other was the election
registrar, who had seen the decedent’s voter’s
affidavit. The niece was also presented, and she
said that she had, for the 11 years of her close
proximity with the decedent, become familiar
with the latter’s handwriting. Essentially, the
other witnesses became familiar with the
testator’s handwriting through various means,
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but said the same thing. The issue was whether
or not 3 witnesses were in fact necessary to
authenticate the decedent’s holographic will.
Held: YES. The 3 witness rule is mandatory. It
will be noted that not all the witnesses
presented testified explicitly that they were
familiar with the handwriting of the testator.
Some of them, like the election registrar, were
presented just to identify the signature but did
not declare they were familiar with the
decedent’s handwriting or explicitly state that
the signature was the decedent’s.
Meanwhile, for the niece, she may have seen
the handwriting of the decedent, but she did not
declare that she actually saw the decease sign a
document or write a note. She merely stated
that it was similar to the signatures of her aunt
as she saw it before.
ALSO, a visual examination of the holographic
will convinced SC that the strokes are different
when compared with other documents written
by the testator. The signature of the testator in
some of the disposition is not readable. There
were uneven strokes, retracing and erasures on
the will.
Balane: The Codoy ruling does not reverse
Azaola –
1. Codoy was not based on there being less
than 3 witnesses (in fact, there were 6);
2. The will was denied because the
testimonies of the witnesses were found
to be indecisive;
3. The visual examination by SC seemed to
reveal that the will was not authentic;
4. The decisive factor in the case was not the
quantity of the witnesses, but the quality.
Document Itself Must be Produced in Probate
A lost holographic will cannot be probated.
CASE: GAN V. YAP
Facts: The decedent supposedly executed a will,
but it was allegedly lost. Apparently, she was
afraid of her husband ever finding out that she
made one because her husband had a terrible
temper, so she let her first cousin, Felina, look
over her as she was writing it, and then let
Felina read it several times again, sometimes
alone, sometimes in the presence of others.
When the decedent was dying in the hospital,
she apparently left the will in her purse and told
Felina to keep the purse, but the decedent’s ill-
tempered husband asked for it. Felina went to
the toilet, hid there, and read the will over and
over to make sure the contents were intact in
her memory. Thus, Felina claimed that her
testimony, and that of other witnesses, should
be enough to validate the existence of the
holographic will. Is she correct?
Held: NO. In holographic wills, the law regards
the document itself as material proof of
authenticity, and as its own safeguard, since it
could at any time, be demonstrated to be—or
not to be—in the hands of the testator himself.
Thus, where the document itself is not
presented, there is no way for the court, or
witnesses, or an expert to validate its
authenticity. The execution and the con- tents of
a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who
have seen and/or read such will.
Also: In a decision, the SC of Spain denied
probate to a document containing testamentary
dispositions in the handwriting of the deceased,
but apparently mutilated, the signature and
some words having been tom from it. Even in
the face of allegations and testimonial evidence
(which was controverted), ascribing the
mutilation to the opponents of the will. The
aforesaid tribunal declared that, in accordance
with the provision of the Civil Code (Spanish)
the will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no effect.
CASE: RODELAS V. ARANZA
Facts: The original holographic will was lost, but
there was a photocopy available.
Held: SC accepted the photocopy version of the
will, since comparisons can be made with the
standard writings of the testator. In Gan v. Yap,
footnote 8 even said “Perhaps it may be proved
by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other
similar means, if any, whereby the authenticity
of the handwriting of the deceased may be
exhibited and tested before the probate court.”
Q: Pedro wrote a holographic will. He had 2
friends sign as witnesses. Is the will valid?
A: Yes. Art. 810 provides that a person may
execute a holographic will which must be wholly
written, dated & signed by the hand of the
testator himself. Such will is subject to no other
formal requirements & requires no witnesses. In
this case, the fact that 2 friends of Pedro’s
signed his will is irrelevant to the holographic
will’s validity – to have done more than what the
law requires for formal validity should not
invalidate a holographic will.
Q: Jose made a holographic will, partly in blue
ink & partly in black. Is the will valid?
A: Yes. Art. 810 provides that a person may
execute a holographic will which must be wholly
written, dated & signed by the testator himself.
No other formal requirement is provided. Thus,
though the ink is half blue, half black, the will
remains valid.
Q: Manuela wrote a handwritten will in block
letters so that it is legible. This, however, is not
her usual style of writing, which is like a doctor’s
prescription. Is the will valid?
A: No. The will is not valid, because witnesses
subsequently would not be able to identify that
such is the testator’s handwriting. Holographic
wills are completely dependent on the
authenticity of the handwriting, as may be
proven by writing standards or by witnesses.
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Because Manuela completely altered her style
of writing, witnesses would not be able to prove
she wrote it. This would invalidate the will.
Q: Antonio died, leaving behind a holographic
will. How many witnesses should be presented
at probate if his will is (a) opposed & (b) not
opposed?
A: If the will is contested, only 1 witness is
required to confirm that the handwriting of the
testator matches the holographic will. Where
the will is opposed, 3 witnesses familiar with his
handwriting must confirm authenticity.
Article 812. In holographic wills, the
dispositions of the testator written below his
signature must be dated & signed by him in
order to make them valid as testamentary
dispositions. (n)
Article 813. When a number of dispositions
appearing in a holographic will are signed
without being dated, & the last disposition has
a signature & a date, such date validates the
dispositions preceding it, whatever be the time
of prior dispositions. (n)
Rules: Additional Dispositions in Holographic
Wills
If there are several additional dispositions:
 There should be a signature & date after
each additional disposition;
 Each additional disposition which is
SIGNED but not dated is valid IF the last
disposition is signed & dated;
 IF there are several additional
dispositions, but the additional ones
before the last are DATED but not signed,
only the last will be valid, provided the
last is signed & dated.
 IF there are several additional dispositions
and the additional ones before the last are
NEITHER signed nor dated, but the last is
both signed and dated...
o If they were made on one occasion
only, ALL are VALID.
o If they were made on different
occasions, the intermediate
additions without dates or
signatures would be VOID.
o This entire thing is theoretical rather
than practical, though.
Q: In a holographic will, 10 dispositions appear
after the signature of the testator. The first 9 are
dated, but not signed. The 10 th is dated &
signed. What is the validity of the 10
dispositions?
A: Only the 10th disposition is valid. The civil
Code states that each designation following the
signature of the testator must be dated &
signed. But Art. 813 provides a curing effect
wherein, if a series of dispositions are signed
but not dated, the very last one is both dated &
signed, all dispositions previous to such signed
& dated disposition are validated. In this case,
however, the dispositions previous to the 10 th
are dated, but not signed. Since it is the
signature, not the date, which is required for the
validation of subsequent dispositions, the 1 st 9
dispositions cannot be cured by the 10 th. The
10th, being both dated & signed, is valid.
Q: If the 1st disposition is dated & signed & the
succeeding 9 are signed, but not dated, would
your answer be the same?
A: Only the 1st disposition is valid. The Civil Code
provides a curing effect where the last
disposition, when dated & signed, may cure
previous dispositions which are only signed but
not dated. In this case, however, it is the 1 st
disposition that is dated & signed, not the last.
Thus, the 1st disposition cannot cure the
subsequent dispositions.
Article 814. In case of any Insertion,
Cancellation, Erasure or Alteration (ICEA) in a
holographic will, the testator must authenticate
the same by his full signature. (n)
Notes on Art. 814
 Full signature does not necessarily mean
the testator’s full name; it could just be
his initials.
 GR: If this is not complied with, the
change is simply considered not made.
The will is not thereby invalidated as a
whole.
o EXC: If the portion involved is an
essential part of the will, such as
the date, it’s VOID.
CASE: KALAW V. RELOVA
Facts: Natividad died but executed a
holographic will. The original version stated
Rosa would be her sole heir & executrix.
However, Gregorio had a copy of the will where
Rosa’s name was crossed out as sole heir &
then as executrix, replaced by Gregorio’s name.
The sole heir part was not
ed, but the executrix part was initialed. Rosa
wanted the original, unaltered text to be
admitted into probate. Is this allowed?
Held: NO. Ordinarily, when a number of
erasures, corrections, and interlineations made
by the testator in a holographic is not 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, when as in this case, the holographic
will in dispute had only one substantial
provision, which was altered by substituting the
original heir with another, but which alteration
did not carry the requisite of full 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
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the will after that which could remain valid. To
state that the will as first written should be
given efficacy is to disregard the seeming
change of mind of the testatrix. But that change
of mind can neither be given effect because she
failed to authenticate it in the manner required
by law by affixing her full signature. In such a
case, the essence of the will itself is affected,
and the real intention of the testatrix cannot be
determined with real certitude.
Balane: Why didn’t SC give effect to the original
text, without the cancellations? The cancellation
was not done in the way mandated by the
Article. It would have been more interesting to
use Art. 830 in this case, as that provision
allows cancellation, and to see if it applies to a
holographic will.
CASE: AJERO V. CA
Facts: Annie Sand died after having made a
holographic will. Spouses Ajero instituted special
proceedings for the allowance of Annie’s will
into probate. However, there was opposition on
the part of some heirs, as the will had some
erasures & alterations which were not
authenticated by the decedent. Also, some
dispositions were signed but undated, while
others were unsigned & undated. Is this enough
to invalidate the will in its entirety?
Held: NO. The requirements in Art. 813 affect
only the validity of the dispositions contained in
the holographic will, but not its probate. If the
testator fails to sign and date some of the
dispositions, the result is that these
dispositions cannot be effectuated. Such failure,
however, does not render the whole testament
void. Likewise, a holographic will can still be
admitted to probate, notwithstanding non-
compliance with the provisions of Art. 814.
Thus, unless the unauthenticated alterations,
cancellations or insertions were made on the
date of the holographic will or on testator's
signature, their presence does not invalidate the
will itself. The lack of authentication will only
result in disallowance of such changes.
Q: In the holographic will, the testator’s sole
disposition bequeaths a house in Baguio to the
testator’s cousin, Bill. Subsequently, the word
“house” is cancelled & the word “horse” is
written above it in the testator’s handwriting.
But the alteration is not authenticated by the
testator’s signature. Should the will be given
effect or not?
A: It should not; the will is void. Any alteration,
erasure, or inclusion to a holographic will must
be signed by the testator; otherwise, such
alteration, erasure, or inclusion is void.
Furthermore, jurisprudence provides that when
a particular alteration, exclusion or erasure
affects the very essence of the will, rather than
only 1 disposition, the entire will is void & not
just the affected provision. In this case, the sole
disposition is altered in a way that it cannot be
determined what the testator truly intended –
that one & only disposition technically affected
the entirety of the will. As such, the will is now
void.
Article 815. When a Filipino is in a foreign
country, he is authorized to make a will in any
of the forms established by the law of the
country in which he may be. Such will may be
probated in the Philippines. (n)
Article 816. The will of an alien who is abroad
produces effect in the Philippines if –
 Made with the formalities prescribed
by the law of the place in which he
resides, or
 According to the formalities observed
in his country, or
 In conformity with those which this
Code prescribes. (n)
Article 817. A will made in the Philippines by
a citizen or subject of another country, which is
executed in accordance with the law of the
country of which he is a citizen or subject, and
which might be proved & allowed by the law of
his own country, shall have the same effect as
if executed according to the laws of the
Philippines. (n)
The will of an alien can be probated in the
Philippines.
Applicability of Rules of Formal Validity
This rule applies to:
1. A Filipino abroad
2. An alien abroad
3. An alien in the Philippines
Consolidated Rules for All Types10
10 Also take into consideration Art. 15 and 17 of the Civil
Code:
Article 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.
(9a)
Article 17. The forms and solemnities of contracts, wills, and
other public instruments shall be governed by the laws of the
country in which they are executed.
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All testators, whether Filipino or alien, wherever
situated, has 5 options:
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. Philippine law
Q: A will is attested to by only two witnesses,
but the law of Dubai (where it was executed)
requires only one witness to attest to a will. Can
the will be probated in the Philippines?
A: Yes, the will can be probated in the
Philippines. The law governing the extrinsic
validity of a will may be that law governing the
place of execution. The will subject of the case
at bar, being attested to by 2 witnesses,
complies with the law of Dubai – the place of
execution. Thus, the will may be probated here.
Q: A Filipino & his wife wrote a joint will in
Canada while they were both naturalized
Canadian citizens. Such will is allowed by the
laws of Canada. 5 years later, they reacquired
their Filipino citizenship by taking an oath of
allegiance to the Philippines. One month later,
they both died in a car accident. Can their joint
wills be probated in the Philippines?
A: YES. The formal validity of the will is
determined by the time of its execution. When
the will in this case, the Filipino & his wife were
naturalized Canadian citizens, & thus were
allowed under Art. 817 to draw out their will in
accordance with the laws of Canada.
*Article 818. Two or more persons cannot
make a will jointly, or in the same instrument,
either for their reciprocal benefit or for the
benefit of a third person. (669)
Joint Wills Prohibited
 What is not allowed is ONE DOCUMENT
which constitutes the wills of 2 or more
individuals.
 If there are separate documents, each
serving one independent will (even if
written on the same sheet), they are NOT
joint wills prohibited in this Article.
Reasons for Prohibiting Joint Wills
(SUKR – SUCKER!)
1. The diminution of testamentary Secrecy
2. The danger of Undue influence
3. The danger one testator Killing another
4. Limitations on modes of Revocation
When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippines in a
foreign country, the solemnities established by Philippine laws
shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. (11a)
Q: A man & his wife wrote separate holographic  False testimony. (n)
wills on the two sides of a single sheet of paper.
Are the 2 wills joint wills? Requisites for a Witness to a Will
A: NO. This is not considered a joint will. A joint 1. Must be of sound mind
will is one where the wills of the 2 testators are 2. Must be 18 years old & above
contained in a single document, where both 3. Must be able to read & write
their dispositions are jointly discussed & dealt 4. Must not be dumb, deaf or blind
with. In this case, however, the man wrote his 5. Must be domiciled in the Philippines
will on one side, & his wife on the other, making 6. Must not be convicted of falsification of
them, in essence, two separate wills contained public document & perjury
in one sheet of paper. Thus, the will is not really
joint. Q: Why can’t he be dumb?
A: Because it would be difficult for him to testify.
Article 819. Wills, prohibited by the preceding
article, executed by Filipinos in a foreign Competence v. Credibility
country shall not be valid in the Philippines, CASE: GONZALES V. CA
even though authorized by the laws of the Facts: Gabriel, decedent, died without issue. She
country where they may have been executed. executed a typewritten will, witnessed by
(733a) Matilde, Celso & Maria, which named Lutgarda,
her niece, as her universal heir. Rizalina,
Outline on Joint Wills Gabriel’s other niece, opposed. She contested
Executed By Status the probate of the will as there was no proof
Filipinos in the Void that the 3 instrumental witnesses were
Philippines “credible” witnesses. She claimed that this is an
Filipinos abroad Void absolute requirement which must be complied
Aliens abroad Art. 816; may be with before an alleged last will may be admitted
made in accordance to probate & that to be a credible witness, there
with the law of his must be evidence on record that the witness
country or where he has a good standing in his community, or that
resides he is honest and upright, or reputed to be
Aliens in the Philippines Conflicting views; trustworthy and reliable. She contended that the
some say void, term “credible" is not synonymous with
some say Art. 817, “competent” for a witness may be competent
which means it can under Art. 820 & 821 & still not be credible as
be made in required by Art. 805. Is Rizalina’s contention
accordance with the correct?
law of his country Held: NO. Under the law, there is no mandatory
A Filipino and an alien Void as to Filipino; requirement that the witness testify initially or
as to the alien, at any time during the trial as to his good
depends if he’s standing in the community, his reputation for
abroad or in the trustworthiness, his honesty & uprightness in
country order that his testimony may be believed &
accepted by the trial court. It is enough that the
Article 819. Wills, prohibited by the preceding qualifications enumerated in Art. 820 are
article, executed by Filipinos in a foreign complied with, such that the soundness of his
country shall not be valid in the Philippines, mind can be shown by or deduced from his
even though authorized by the laws of the answers to the questions propounded to him,
country where they may have been executed. that his age is shown from his appearance,
(733a) testimony, as well as the fact that he is not
blind, deaf, dumb & that he is able to read &
write, & that he has none of the
SUBSECTION 4. - Witnesses to Wills
disqualifications.
1. Unlike in a naturalization proceeding,
Article 820. Any person of sound mind & of
which requires character witnesses, in
the age of 18 years or more, & not blind, deaf
probate proceedings, the instrumental
or dumb, and able to read & write, may be a
witnesses are not character witnesses for
witness to the execution of a will mentioned in
they merely attest the execution of a will
Art. 805 of this Code. (n)
& affirm the formalities attendant to said
execution.
Article 821. The following are disqualified 2. The competency of a person to be an
from being witnesses to a will: instrumental witness to a will is
(1) Any person not domiciled in the Philippines; determined by the statute (Arts. 820 &
(2) Those who have been convicted of – 821), whereas his credibility depends on
 Falsification of a document, the appreciation of his testimony & arises
 Perjury or
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 from the conclusion of the Court that said
witness is telling the truth. Thus, in Vda.
de Arroyo v. El Bealerio del Santtssimo
Rosario de Molo, SC held: “Competency as
a witness is one thing, & it is another to
be a credible witness, so credible that the
Court must accept what he says. Trial
courts may allow a person to testify as a
witness upon a given matter because he
is competent, but may thereafter decide
whether or not to believe his testimony.”
3. The instrumental witnesses, to be
competent, must be shown to have the
qualifications under the law. For their
testimony to be credible, that is, worthy of
belief & entitled to credence, it is not
mandatory that evidence be first
established on record that the witnesses
have a good standing in the community or
that they are honest & upright or reputed
to be trustworthy, for a person is
presumed to be such unless the contrary
is established otherwise. In other words,
the instrumental witnesses must be
competent & their testimonies must be
credible before the court allows the
probate of the will they have attested.
Article 822. If the witnesses attesting the
execution of a will are competent at the time of
attesting, their becoming subsequently
incompetent shall not prevent the allowance of
the will. (n)
Competence of Witnesses – as of Time of
Attesting
Just like in testamentary capacity, witnesses
need to be competent only at the time of the
execution of the will.
CASE: UNSON V. ABELLA
Facts: Only the two witnesses, Gonzalo &
Eugenio, testified as to the authenticity of the
will. The 3rd witness, Pedro, was not presented
because he was hostile with Unson, supposed
heir, & has been meeting with the oppositors
since the filing of the petition for the probate of
the will of Josefa. Is this will valid despite the
failure to present all 3 witnesses?
Held: YES. If opposition is presented to the
probate of a will, the general rule is that all the
attesting witnesses must be produced.
Exceptions – when one of the witnesses is:
 Dead
 Cannot be served with process of the
court
 His reputation for truth is questioned or
 He appears to be hostile to the cause of
the parties seeking the probate of the will.
In such cases the will may be admitted to
probate, if upon the evidence actually
introduced, the court is satisfied of the due
execution of the will, inasmuch as even if said
witness had been produced & had testified
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against the application, the result would not
have been changed, if the court was satisfied
upon the evidence adduced that the will has
been executed in the manner prescribed by the
law.
Article 823. If a person attests the execution
of a will, to whom or to whose spouse, or
parent, or child, a devise or legacy is given by
such will, such devise or legacy shall, so far
only as concerns such person, or spouse, or
parent, or child of such person, or any one
claiming under such person or spouse, or
parent, or child, be void, unless there are 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. (n)
Mel talked about this Article.
Witness Cannot Succeed if There are Only 3
 A witness cannot succeed to a legacy or
devise when there are only 3 witnesses.
 BUT: The competence of the person as a
witness is not affected.
o Assuming all other formal requisites
are present, therefore, the will is
valid but the witness (or the
relatives specified in this article)
cannot inherit.
Application of Article Not Limited to
Devisees/Legatees
 The disqualification in Art. 823 extends to
heirs, devisees, & legatees
 All testamentary institutions are covered
 BUT: if the witness or the specified relative
involved is also entitled to a legitime or an
intestate share, that portion is not
affected by the party’s witnessing the will.
Illustrative Scenario
X executes an attested will, witnessed by 3
instrumental witnesses, A, B, & C. B is X’s son.
One of the provisions of the will is a legacy of
P10,000 to B.
 The legacy is void.
 BUT B’s legitime is unaffected.
Q: What if the testator says, “I appoint Mr. Juan
dela Cruz as my sole heir.” Is that OK?
A: It’s OK if there are 3 other witnesses. IF NOT,
then that is no longer allowed.
Q: What if there are 4 witnesses, and 2 of them
are given legacies. Is that OK?
A: It’s OK because as to each one of them there
are still 3 other witnesses unless the others are
also either spouses, witnesses or children.
Article 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. (n)
Why?
A charge is not a testamentary disposition.
SUBSECTION 5.
Codicils & Incorporation by Reference
Article 825. A codicil is –
 A supplement or addition to a will,
 Made after the execution of a will &
annexed to be taken as a part thereof,
 By which disposition made in the original
will is explained, added to, or altered. (n)
Article 826. In order that a codicil may be
effective, it shall be executed as in the case of
a will. (n)
Republication – validating a disposition in a void
will (ex. a notarial will without date or signature,
or a page with a missing signature; this must be
republished)
Codicil – adds on to a valid will
There can be annexes in the will, provided that
the annexes are really in existence, clearly
identified, & ALL are signed (except when too
voluminous)
Codicil v. Subsequent Will
Codicil Will
Explains, adds to, or Makes independent &
alters a disposition in distinct dispositions
a prior will
*Note: The distinction is purely academic, since
a codicil has to follow the formalities of a will
anyway.
Must the Codicil Conform to the Form of the Will
to Which it Refers?
No. The law does not require this.
 Ex. an attested will may have a
holographic codicil.
Q: Must a codicil be probated?
A: Yes.
Q: Pedro executed a will instituting Pablo as sole
heir of his estate worth P5 million. Afterwards,
he executed a codicil giving a legacy of P1
million to his church. Is his will deemed
revoked?
A1: No. A codicil can only explain or alter
dispositions made in the original will. It cannot
contain new testamentary dispositions. Insofar
as the subject codicil provided for a legacy to
the church of P1 million, the same is void. Thus,
the original will remains substantively intact
and, as such, as is not revoked.
A2: No, the whole will is not deemed revoked.
The law states than an implied revocation shall
only affect those parts of the original will that
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are inconsistent with or contrary to its
provisions.
Article 827. If a will, executed as required by
this Code, incorporates into itself by reference
any document or paper, such document or
paper shall not be considered a part of the will
unless the following requisites are present:
(EDI-PS)
(1) The document or paper referred to in the
will must be in Existence at the time of
the execution of the will;
(2) The will must clearly Describe & Identify
the same, stating among other things the
number of pages thereof;
(3) It must be identified by clear &
satisfactory Proof as the document or
paper referred to therein; &
(4) It must be Signed by the testator & the
witnesses on each & every page, except
in case of voluminous books of account
or inventories. (n)
Documents Pertained To
This article can refer only to documents such as
inventories, books of accounts, documents of
title, & papers of similar nature.
 The document should NOT make
testamentary dispositions, for then the
formal requirements for wills would be
circumvented.
Can Holographic Wills Incorporate Documents
by Reference?
No. Art. 824 requires the signatures of the
testator & the witnesses on every page of the
incorporated document (except voluminous
annexes).
 It thus seems that only attested wills are
witnessed.
 UNLESS: a testator has his holographic will
witnessed for the heck of it.
SUBSECTION 6.
Revocation of Wills and Testamentary
Dispositions
Article 828. A will may be revoked by the
testator at any time before his death. Any
waiver or restriction of this right is void. (737a)
Essential Revocability of Wills
Wills are essentially revocable or ambulatory.
 This characteristic cannot be waived by
the testator.
 It is revocable at the testator’s pleasure
during his lifetime.
 This is consistent with the fact that
successional rights vest only upon the
testator’s death.
Article 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
– obliteration
 According to the law of the place where are established according to the Rules of
the will was made, or Court. (n)
 According to the law of the place in which
the testator had his domicile at the time; Modes of Revoking a Will Under Philippine Law
And if the revocation takes place in this 1. By operation of law
country, when it is in accordance with the  May be total or partial
provisions of this Code. (n)  Examples --
(1) Preterition
Rules for Revocation (2) Legal separation
Where Revocation Law to Follow (3) Unworthiness to succeed
Made (4) Transformation, alienation, or
Philippines Philippine law loss of the object devised or
Outside the If the testator is not bequeathed
Philippines domiciled in the (5) Judicial demand of a credit given
Philippines as a legacy
 Follow the law of the 2. By a subsequent will or codicil
place where the will  Requisites
was made, OR (1) The subsequent instrument
 Follow the law of the must comply with the formal
place where the requirements of a will;
testator was (2) The testator must possess
domiciled at the time testamentary capacity;
of revocation. (3) The subsequent instrument
must either contain an express
If the testator is revocatory clause or be
domiciled in the incompatible with the prior will
Philippines (not (revocation may be express or
governed by Art. 829) implied).
 Follow Philippine law  The will must eventually be probated.
(domiciliary 3. By physical destruction
principle), OR  4 Ways of Destroying
 Follow the law of the (1) Burning
place of revocation (2) Tearing
(lex loci (3) Cancelling
celebrationis), OR (4) Obliterating
 Follow the law of the  Physical destruction may be done
place where the will personally by the testator or by another
was made. person acting on his behalf & by his
*Note how the nationality theory is abandoned express direction.
in favor of the domiciliary theory in this  Effect of unauthorized destruction – the
situation. will may still be proved as lost or
destroyed
Revocation can be done by an alien. o HOWEVER: This is only possible
with attested wills
*Article 830. No will shall be revoked except  If the will is holographic, it
in the ff. cases: cannot be probated if it is
(1) By implication of law; or lost, even if the loss or
(2) By some will, codicil, or other writing destruction was
executed as provided in case of wills; or unauthorized, UNLESS a
(3) By burning, tearing, cancelling, or copy survives.
obliterating the will with the intention of  Elements of Revocation by Physical
revoking it, (1) by the testator himself, or (2) Destruction
by some other person in his presence, & by his (1) Corpus – the physical destruction
express direction. itself; there must be evidence
 If burned, torn, cancelled, or obliterated thereof
by some other person, without the (2) Animus – there must be:
express direction of the testator, the will a. Capacity & intent to revoke
may still be established, & the estate b. The testator must have
distributed in accordance therewith, if: completed everything he
o Its contents, & intended to do
o Due execution, &
o The fact of its unauthorized CASE: TESTATE ESTATE OF ADRIANA MALOTO V. CA
destruction, cancellation, or
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Facts: Adriana died. There is an issue as to
whether or not she had revoked a will. The will
was burnt by her maid in the presence of 2
witnesses, but Adriana was not in the room
when it happened. Meanwhile, it was discovered
that there was a copy of the will with Adriana’s
lawyer. Based on this evidence, is the will
considered revoked?
Held: NO. The physical act of 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 & in the
presence of the testator. Of course, it goes
without saying that the document destroyed
must be the will itself.
In this case, while animus revocandi, or the
intention to revoke, may be conceded, for that is
a state of mind, yet that requisite alone would
not suffice. “Animus revocandi” is only one of
the necessary elements for the effective
revocation of a will. The intention to revoke
must be accompanied by the overt physical act
of burning, tearing, obliterating, or cancelling
the will carried out by the testator or by another
person in his presence & under his express
direction. There is paucity of evidence to show
compliance with these requirements. For one,
the document or papers burned by Adriana’s
maid was not satisfactorily established to be a
will at all, much less the will of Adriana. For
another, there is no proof that the burning was
done under the express direction of Adriana.
And then, the burning was not in her presence.
Both witnesses were one in stating that they
were the only ones present at the place where
the stove (presumably in the kitchen) was
located in which the papers proffered as a will
were burned.
Loss or Unavailability of a Will
The loss or unavailability of a will may, under
certain circumstances, give rise to the
presumption that it had been revoked by
physical destruction.
CASE: GAGO V. MAMUYAC
Facts: Miguel died. A carbon copy of a will was
presented, but it was contested that this was
already cancelled by Miguel. According to some
witnesses, Miguel had executed a will while he
was alive. But according to Carlos, Miguel had
assured him that the will was cancelled, & the
house which was disposed of in that will was
safe to sell. Another testator said that the will
was actually last seen with Miguel himself. Now,
a copy of the will could not be found. Is the will
considered revoked?
Held: YES. The law does not require any
evidence of the revocation or cancellation of a
will to be preserved. The fact that such
cancellation has taken place must either remain
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unproved or be inferred from evidence showing
that, after due search, the original will could not
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 & it cannot
be found after his death. It will not be presumed
that such will has been destroyed by any other
person without the knowledge or authority of
the testator. The force of the presumption of
cancellation or revocation by the testator, while
varying greatly, being weak or strong according
to the circumstances, is never conclusive, but
may be overcome by proof that the will was not
destroyed by the testator with intent to revoke
it.
In view of the fact that the original will could not
be found after the death of the testator Miguel
& in view of the positive proof that the same
had been cancelled, the will is deemed revoked.
In a proceeding to probate a will the burden of
proof is upon the proponent clearly to establish
not only its execution but its existence. Having
proved its execution by the proponents, the
burden is on the contestant to show that it has
been revoked. In this case, however, there was
positive proof of revocation.
Q: X got mad and began to burn his will.
However, he changed his mind and pulled it
back so it was only partially burnt but only at
the tips. Is this considered a valid will still?
A: Technically, yes it is possible.
Q: X quarreled with his wife, Y. So X throws the
will making his wife his universal heir into the
trash. The next day however X & Y are
reconciled. If the act of tearing, burning, etc. is
not complete, can there be revocation?
A: Destruction must be COMPLETE.
Article 831. Subsequent wills which do not
revoke the previous ones in an express
manner, annul only such dispositions in the
prior wills as are inconsistent with or contrary
to those contained in the later wills. (n)
Kinds of Revocation
 Express – through a revocatory clause
 Implied – through incompatibility
Effect of Subsequent Will Under New Civil Code
The execution of a subsequent will does not
ipso facto revoke a prior one.
Article 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. (740a)

Efficacy of the Revocatory Clause
The efficacy of the revocatory clause does not
depend on the testamentary dispositions of the
revoking will.
 GR: Revocation is an absolute provision,
independent of the acceptance or
capacity of the new heirs
 EXC: When the testator so provides
Illustrative Scenario
X executes a will, naming A as his universal heir.
Two years later, X executes a second will
revoking the first & naming B as his universal
heir. X then dies & B renounces the inheritance.
 Despite B’s renunciation, the first will
remains revoked.
*Dependent Relative Revocation
Where the testator provides in the subsequent
will that the revocation of the prior one is
dependent on the capacity or acceptance of the
heirs, devisees, or legatees instituted in the
subsequent will.
 Where the act of destruction is connected
with the making of another will so as fairly
to raise the inference that the testator
meant the revocation of the old to depend
upon the efficacy of the new disposition
intended to be substituted, the revocation
will be conditional & dependent upon the
efficacy of the new disposition; & if, for
any reason, the new will intended to be
made as a substitute is inoperative, the
revocation fails & the original will remains
In full force.
 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.
o BUT: A mere intent to make at some
time a will in place of that destroyed
will not render the destruction
conditional. It must appear that the
revocation is dependent upon the
valid execution of a new will.
 THUS, this applies ONLY when it appears
that the testator intended his act of
revocation to be conditioned on the
making of a new will or on its validity.
Institution of Heirs, Legatees, or Devisees in the
Subsequent Will Subject to a Suspensive
Condition
 Whether or not the revocation of the prior
will is absolute or conditional depends
always on the testator’s intent.
o If the subsequent will contains a
revocatory clause which is absolute
or unconditional, the revocation will
be absolute, & the non-happening of
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the suspensive condition will be
immaterial.
o BUT: If the testator states in the
subsequent will that the revocation
of the prior will is subject to the
occurrence of the suspensive
condition, or if the will does not
contain a revocatory clause, the
revocation will depend on whether
the condition happens or not.
 If the suspensive condition on
which an institution depends
does not occur, the
institution is deemed never
to have been made & the
prior institution will be
efficacious.
 This is in accord with the
juridical nature of suspensive
conditions, & is an instance
of dependent relative
revocation.
*This concept was discussed by Mel.
Dependent Relative Revocation in relation to
Revocation by Physical Destruction
In Molo v. Molo, the physical destruction of the
will did not revoke it, on the inference, drawn by
the Court, that the testator meant the
revocation to depend on the validity of a new
one.
CASE: MOLO V. MOLO
Facts: Mariano left 2 wills, one made in 1918 &
another in 1939. The latter will contains a clause
expressly revoking the 1919 will. The probate
court denied admission to the 1939 will for
failure to comply with legal requisites for
validity. As such, Mariano’s wife attempted to
get the 1919 will probated. Only a photocopied
version of the 1919 will was presented; it was a
duplicate he gave to his wife. Can the 1919 will
be admitted to probate?
Held: YES. A subsequent will, containing a
clause revoking a previous will, having been
disallowed, for the reason that it was not
executed in conformity with the provisions of
Sec. 618 of the Code of Civil Procedure as to the
making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said
revocatory clause is void.
Additionally, however, it is the contention of
oppositors that the fact that there is a 1939 will
shows an intent on the part of Mariano to revoke
the 1919 will. But there is no direct evidence of
voluntary or deliberate destruction of the 1 st will
by the testator. Also, it is assumed that the
testator may have thought that the revocatory
clause in the subsequent will was valid & the
latter would be given effect. In such a case, the
1918 will could be considered valid under the
principle of “dependent relative revocation.”
Thus, even in the supposition that the
destruction of the original will by the testator
could be presumed from the failure of Mariano’s
wife to produce the original in court, such
destruction cannot have the effect of defeating
the prior will of 1918 because of the fact that it
is founded on the mistaken belief that the will of
1939 has been validly executed and would be
given due effect. The theory on which this
principle is predicated is that the testator did
not intend to die intestate. And this intention is
clearly manifest when he executed two wills on
two different occasions & instituted his wife as
his universal heir. There can therefore be no
mistake as to his intention of dying testate.
CASE: DIAZ V. DE LEON
Facts: There were 2 wills. The 2nd will, based on
the evidence, did not have all the necessary
requisites to constitute a sufficient revocation.
Also, after the execution of the 1 st will, the
testator asked that the 1st will be returned to
him. The testator then ordered his servant to
tear the document in his presence, before a
nurse who testified to this effect. Is the 1 st will
revoked despite the insufficiency of the
revocation in the 2nd will?
Held: YES. The intention of revoking the will is
manifest from the established fact that the
testator was anxious to withdraw the provisions
he had made in his 1 st will. This fact is disclosed
by the testator’s own statements to the
witnesses where he was confined. The original
will herein presented for probate having been
destroyed with animo revocandi, cannot now be
probated.
Rule if Implied Revocation
The rule in Art. 832 applies even if the
revocation of the prior will by the subsequent
will is implied (e.g., by incompatibility of
provisions, not by a revocatory clause).
Q: There is Will 1 and Will 2. For Will 2, it is valid
but the heirs renounced. Is Will 2 considered
void?
A: No, Will 2 is considered valid still and Will 1
will NOT be revived. This is why the
renunciations will remain, because the 2 nd will is
considered still valid.
Q: There is Will 1 and Will 2. Will 2 is defective
because there is a failure to follow the requisites
in the law. Which will is considered the valid
will?
A: The valid will is Will 1 because the second will
is deemed never to have been made.
Q: What is meant by the doctrine of dependent
relative revocation?
A: The doctrine of dependent relative revocation
provides that when the revocation of the
previous will is dependent of the effectivity of
the subsequent will, the previous will is not
invalidated when the subsequent will is
invalidated. In this case, the previous will is the
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one that will be controlling.
Q: Since there is already probate, is revocation
no longer allowed?
A: This does not follow, the testator who files for
probate ante mortem may still revoke his will &
just have another probate if he wishes.
Article 833. A revocation of a will based on a
false cause or an illegal cause is null and void.
(n)
Revocable Ad Nutum
As a general rule, wills are revocable at the
testator’s pleasure.
Requisites for the Application of Art. 833
(1) The cause must be concrete, factual & not
purely subjective
 Ex. If the testator wants to revoke
because he discovered that the heir
was Ilocano & to him, all Ilocanos
are bad, the revocation is valid; the
ground is purely subjective & thus
the will cannot be revoked under
this Art.
(2) It must be false
(3) The testator must NOT know of its falsity
(4) It must appear from the will that the
testator is revoking because of the cause
which he did not know was false.
Physical Destruction of a Probate Will
If the revocation is by physical destruction, &
the revoked will is holographic, then though the
revocation is void, probate will not be possible.
Revocation for Illegal Cause
The illegal cause must be stated in the will as
the cause of the revocation for the revocation to
be void.
Article 834. The recognition of an illegitimate
child does not lose its legal effect, even though
the will wherein it was made should be
revoked. (741)
Recognition of an Illegitimate Child
Recognition is an irrevocable act; the
recognition of an illegitimate child is not
revocable.
Related Family Code Provisions
Admission of illegitimate filiation in a will
constitutes proof of illegitimate filiation.
 Illegitimate children may establish their
illegitimate filiation in the same way & on
the same evidence as legitimate children
(Art. 175, Family Code).
SUBSECTION 7.
Republication & Revival of Wills
Article 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. (n)
Article 836. The execution of a codicil
referring to a previous will has the effect of
republishing the will as modified by the codicil.
(n)
Republishing a Will That is Void due to
Formalities
If the testator wants to republish a will that is
void as to form, the only way is to –
(1) Execute a subsequent will &
(2) Reproduce (i.e., copy out) the dispositions
of the original will.
Mere reference to the prior will in the
subsequent will is not enough.
When Will is Void as to Form
A will is void as to form when it does not comply
with –
(1) Art. 804 – 808 (forms of attested wills)
(2) Art. 810 - Art. 814 (forms of holographic
wills)
(3) Art. 818 & 819 (prohibition on joint wills)
In 1990, X executed Will #3, revoking Will #2.
The revocation of Will #2 by Will #3 does not
revive Will #1, unless Will #3 expressly revives
Will #1.
Theory of Instant Revocation
The Art. is based on this theory, i.e., that the
revocatory effect of the second will (Will #2) is
immediate.
If Revocation of 1st Will Implied
Art. 837 applies only when the revocation of the
1st will by the 2nd will is express.
 If the revocation is implied, the revocation
of Will #3 of Will #2 will end up reviving
Will #1, unless Will #3 & Will #1 are
inconsistent.
Exception to Art. 838
An exception is where the 2nd will is holographic
& is revoked by physical destruction; probate
will be forever foreclosed, unless a copy
survives.
SUBSECTION 8.
Allowance and Disallowance of Wills

Solution for the Testator Article 838. No will shall pass either real or
If the testator wishes to republish a will that is personal property unless it is proved & allowed
either in accordance with the Rules of Court.
(a) Void for a reason other than a formal The testator himself may, during his lifetime,
defect, OR petition the court having jurisdiction for the
 Ex. A will that institutes 1 of 3 allowance of his will. In such case, the
attesting witnesses pertinent provisions of the Rules of Court for
(b) Previously revoked the allowance of wills after the testator's death
The only thing necessary to republish it is for shall govern.
the testator to execute a subsequent will or The SC shall formulate such additional Rules of
codicil referring to the previous will. Court as may be necessary for the allowance of
 There is no need to reproduce the wills on petition of the testator.
provisions of the prior will in the Subject to the right of appeal, the allowance of
subsequent instrument. the will, either during the lifetime of the
testator or after his death, shall be conclusive
Summary as to its due execution. (n)
Reason for Invalidity Requisites
Void for formal defect (1)Execute a Probate Mandatory
subsequent will & The probate of a will is mandatory.
(2)Reproduce the
dispositions of the CASE: GUEVARA V. GUEVARA
original will. Facts: Victorino died, leaving 2 children behind –
legitimate son Ernesto, & natural daughter
Void for reasons other Execute a subsequent Rosario. Victorino executed a will where he
than formal defects will or codicil referring bequeathed properties to Rosario, but said will
Previously revoked to the previous will. was not initially probated. For 4 years after his
death, though, Rosario filed an action against
Ernesto to be acknowledged as Victorino’s
Article 837. If after making a will, the testator
natural child. To prove this, she presented the
makes a 2nd will expressly revoking the 1st, the
will which had not yet been probated. She then
revocation of the 2nd will does not revive the 1 st
claimed her inheritance, on the basis that
will, which can be revived only by another will
Victorino died intestate, because the will had
or codicil. (739a)
never been probated. The lower courts sided
with Rosario. Were they correct?
Illustrative Scenario
Held: NO. This was an attempt to disregard the
In 1985, X executed Will #1.
last will of the decedent. The presentation of a
In 1987, X executed Will #2, expressly revoking
will to the court for probate is mandatory & its
Will #1.

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allowance by the court is essential &
indispensable to its efficacy.
Provisions of Rule 74 may state that there may
be extrajudicial partitioning through letters of
administration, but this does not mean that the
probate of a will may be circumvented by such
partition. The Rules do not say that in case the
decedent left a will the heirs & legatees may
divide the estate among themselves without the
necessity of presenting the will to the court for
probate.
Under Sec. 1 of Rule 74, in relation to Rule 76, if
the decedent left a will & no debts & the heirs &
legatees desire to make an extrajudicial
partition of the estate, they must first present
that will to the court for probate & divide the
estate in accordance with the will. They may not
disregard the provisions of the will unless the
provisions are contrary to law. Neither may they
do away with the presentation of the will to the
court for probate, because such suppression of
the will is contrary to law and public policy. The
law enjoins the probate of the will and public
policy requires it, because unless the will is
probated and notice thereof given to the whole
world, the right of a person to dispose of his
property by will may be rendered nugatory, as is
attempted to be done in the instant case.
*Note: This is also the rule in our current Rules
of Court.
Sec. 1, Rule 74, Rules of Court.
Extrajudicial settlement by agreement
between heirs. — If the decedent left no will &
no debts & the heirs are all of age, or the
minors are represented by their judicial or legal
representatives duly authorized for the
purpose, the parties may, without securing
letters of administration, divide the estate
among themselves as they see fit by means of
a public instrument filed in the office of the
register of deeds, & should they disagree, they
may do so in an ordinary action of partition.
If there is only one heir, he may adjudicate to
himself the entire estate by means of an
affidavit filled in the office of the register of
deeds.
The parties to an extrajudicial settlement,
whether by public instrument or by stipulation
in a pending action for partition, or the sole
heir who adjudicates the entire estate to
himself by means of an affidavit shall file,
simultaneously with & as a condition precedent
to the filing of the public instrument, or
stipulation in the action for partition, or of the
affidavit in the office of the register of deeds, a
bond with the said register of deeds, in an
amount equivalent to the value of the personal
property involved as certified to under oath by
the parties concerned & conditioned upon the
payment of any just claim that may be filed
under Sec. 4 of this Rule. It shall be presumed
that the decedent left no debts if no creditor
files a petition for letters of administration
within 2 years after the death of the decedent.
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The fact of the extrajudicial settlement or
administration shall be published in a
newspaper of general circulation in the manner
provided in the next succeeding section; but no
extrajudicial settlement shall be binding upon
any person who has not participated therein or
had no notice thereof.
Probate 1 – (1) Existence of the will, (2)
following of formalities, & (3) capacity of the
testator; merit as to the DISTRIBUTION is not
included in Probate 1, EXCEPT in preterition.
Preterition annuls the institution in the will.
Two Kinds of Probate (both in Rule 76, Rules of
Court)
 Post-mortem – after the testator’s death
 Ante-mortem – during his lifetime
Finality of a Probate Decree
Once a decree of probate becomes final in
accordance with the rules of procedure, it is res
judicata.
CASE: DE LA CERNA V. POTOT
Facts: Bernabe & Gervasia executed a joint will,
jointly bequeathing their properties. The probate
court, however, affirmed the validity of the will
(though joint wills were always prohibited under
Philippine law). The probate court’s judgment
had attained finality as it was never appealed.
May the will subsequently be contested because
it is formally defective?
Held: NO. A final judgment rendered on a
petition for the probate of a will is binding upon
the whole world. Petitioners, as heirs and
successors of the late Bernabe, are concluded
by the 1939 decree admitting his will to probate.
The contention that being void the will cannot
be validated, overlooks that the ultimate
decision on whether an act is valid or void rests
with the courts, & here they have spoken with
finality when the will was probated in 1939.
HOWEVER, the will only became final as to the
share of Bernabe; Gervasia was alive at the time
of the probate proceedings, & under the old Civil
Code, there was no such thing as ante-mortem
probate & a testator’s will could not be probated
during her lifetime. Thus, it is correct to say that
the joint will is void as to the share of Gervasia
over the properties owned by her & Bernabe.
Scope of a Final Decree of Probate
A final decree is conclusive as to the due
execution of the will (i.e., extrinsic or formal
validity ONLY)
CASE: GALLANOSA V. ARCANGEL
Facts: Florentino executed a will before his
death, which was already probated in 1939.
Partitioning was already effected pursuant to
the probated will in 1943. In 1967, however,
oppositors to the will, claiming that the will was
executed through fraud & deceit, filed an action
to annul the will with the same probate court.
The court chose to allow the case instead of
dismiss it. Was this action by the court correct?
Held: NO. The 1939 decree of probate is
conclusive as to the due execution or formal
validity of the will. After the finality of the
allowance of a will, the issue as to the
voluntariness of its execution cannot be raised
anymore.
What Are Included in the Term “Formal Validity”
& Therefore Conclusively Settled by a Final
Decree of Probate
1. That the testator was of sound &
disposing mind;
2. That his consent was not vitiated;
3. That the will was signed by him in the
presence of the required number of
witnesses;
4. That the will is genuine.
Essentially, it is conclusive that ALL the formal
requisites of the law have been complied with,
both for attested or holographic wills.
What Formal Validity Encompasses (Dorotheo v.
CA)
1. Whether the will submitted is indeed the
decedent’s last will
2. Compliance with the prescribed
formalities for the execution of wills
3. Testamentary capacity
4. Due execution of the will
What Due Execution Means
1. The testator’s sound & disposing mind
2. Freedom from vitiating factors (duress,
menace, undue influence)
3. Will was genuine; no forgery
4. Proper testamentary age
5. The testator is not expressly prohibited by
law from making a will
In Sum
Extrinsic validity pertains to whether the
testator, being of sound mind, freely executed
the will in accordance with the requisites
prescribed by law.
General Rule & Exception
GR: A decree of probate does not concern itself
with the question of intrinsic validity & the
probate court should not pass upon that issue.
EXC: The probate of a will might become an idle
ceremony if on its face it appears to be
intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be
passed upon, even before it is probated, the
court should meet the issue.
CASE: NEPOMUCENO V. CA
Facts: Martin died. In his last will, he
bequeathed Sofia as his heir & executor. Sofia,
however, was in an adulterous affair with him.
Martin was actually married to Rufina & had two
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kids with her. In the will, Martin made explicit
mention of his wife & kids as well, but prioritized
Sofia. Sofia sought to have the will of Martin
admitted into probate, but this was opposed by
Rufina. The probate court, while ruling that the
will was extrinsically valid, also ruled that the
will was intrinsically void, & disallowed the will.
Sofia protested that the probate court should
not have ruled on the intrinsic validity when it
was merely tasked with admitting the will into
probate. Was Sofia’s contention correct?
Held: NO. The court acted within its jurisdiction
when after declaring the will to be validly drawn,
it went on to pass upon the intrinsic validity of
the will and declared the devise in favor of Sofia
void.
Art. 739 of the Civil Code provides: “The ff.
donations shall be void: (1) Those made
between persons who were guilty of adultery or
concubinage at the time of the donation.” Also,
Art. 1028 of the Code provides: “The
prohibitions mentioned in Art. 739, concerning
donations inter vivos shall apply to
testamentary provisions.” From the face of the
will, it was already obvious that it was void, for
Martin already admitted that he was married to
Rufina & had kids with her but bequeathed Sofia
with everything.
The general rule is that in probate proceedings,
the court’s area of inquiry is limited to an
examination & resolution of the extrinsic validity
of the will. But as an exception, when there are
“practical considerations,” a probate court may
already rule on the intrinsic validity of the will.
The probate of a will might become an idle
ceremony if on its face it appears to be
intrinsically void.
The prohibition in Art. 739 is against the making
of a donation between persons who are living in
adultery or concubinage. It is the donation
which becomes void. The giver cannot give even
assuming that the recipient may receive. The
very wordings of the Will invalidate the legacy
because the testator admitted he was disposing
the properties to a person with whom he had
been living in concubinage.
Lesson from Nepomuceno
A probate court may pass upon the issue of
intrinsic validity if on the face of the will, its
intrinsic nullity is patent.
Q: What if you question the validity of the will
on appeal?
A: That’s allowed and will not be considered res
judicata. If the higher courts find that the trial
court erred,
Q: If the will has any of these, what will happen?
A: It will be declared void.
Article 839. The will shall be disallowed in any
of the ff. cases: (FIFIFI)
(1) If the Formalities required by law have
not been complied with;
 (2) If the testator was Insane, or otherwise
mentally incapable of making a will, at
the time of its execution;
(3) If it was executed through Force or under
duress, or the influence of fear, or
threats;
(4) If it was procured by undue & Improper
pressure & influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was
procured by Fraud;
(6) If the testator acted by mistake or did not
Intend that the instrument he signed
should be his will at the time of affixing
his signature thereto. (n)
Art. 839 is an Exclusive List
These are the only grounds for which a will may
be invalidated.
Status of a Will
A will is either valid or void.
 If none of the defects enumerated in Art.
839 are present, it is valid;
 If any one of the defects is present, it is
void.
 The issue of formal validity or nullity is
precisely what the probate proceedings
will determine.
 There is no such thing as a voidable will.
THERE IS NO SUCH THING AS A VOIDABLE WILL.
A will is either valid or void.
Invalidating Holographic Wills
In a petition to admit a holographic will to
probate, the only issues to be resolved are:
a. Whether the instrument submitted is,
indeed, the decedent's last will and
testament;
b. Whether said will was executed in
accordance with the formalities prescribed
by law;
c. Whether the decedent had the necessary
testamentary capacity at the time the will
was executed; and,
d. Whether the execution of the will and its
signing were the voluntary acts of the
decedent.
Force
Art. 1335, Civil Code. There is violence when in
order to wrest consent, serious or irresistible
force is employed.
Duress
Art. 1335, Civil Code. There is intimidation when
one of the contracting parties is compelled by a
reasonable and well-grounded fear of an
imminent & grave evil upon his person or
property, or upon the person or property of his
spouse, descendants or ascendants, to give his
consent.
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To determine the degree of intimidation, the
age, sex & condition of the person shall be
borne in mind.
A threat to enforce one’s claim through
competent authority, if the claim is just or legal,
does not vitiate consent.
Undue or Improper Pressure or Influence
Art. 1337, Civil Code. There is undue influence
when a person takes improper advantage of his
power over the will of another, depriving the
latter of a reasonable freedom of choice. The
following circumstances shall be considered: the
confidential, family, spiritual & other relations
between the parties, or the fact that the person
alleged to have been unduly influenced was
suffering from mental weakness, or was
ignorant or in financial distress.
Fraud
Art. 1338, Civil Code. There is fraud when,
through insidious words or machinations of one
of the contracting parties, the other is induced
to enter into a contract which, without them, he
would not have agreed to.
Mistake
Art. 1331. In order that mistake may invalidate
consent, it should refer to the substance of the
thing which is the object of the contract, or to
those conditions which have principally moved
one or both parties to enter into the contract.
Mistake as to the identity or qualifications of one
of the parties will vitiate consent only when
such identity or qualifications have been the
principal cause of the contract.
A simple mistake of account shall give rise to its
correction.
CASE: REYES V. CA
Facts: In his will, the testator assigned all his
properties to someone he referred to as his
“wife.” However, it turns out the woman he
named as his “wife” was not, in fact, his wife. Is
the will still valid?
Held: YES. The propriety of the institution of the
“wife” as one of the devisees/legatees already
involved inquiry on the will's intrinsic validity
and which need not be inquired upon by the
probate court.
Rules on Extrinsic vis-à-vis Intrinsic Validity from
Reyes
GR: Courts in probate proceedings are limited to
pass only upon the extrinsic validity of the will
sought to be probated.
 The court merely inquires on –
o Its due execution,
o Whether or not it complies with the
formalities prescribed by law, &
o The testamentary capacity of the
testator.
  It does not determine nor even by
implication prejudge the validity or
efficacy of the will’s provisions.
EXC: The intrinsic validity of a will may be
passed upon because “practical considerations”
demand it, e.g., –
 When there is preterition of heirs
 When the testamentary provisions are of
doubtful legality
 Where the parties agree that the intrinsic
validity be first determined
The rule on probate is not inflexible and
absolute. Under exceptional circumstances, the
probate court is not powerless to do what the
situation constrains it to do and pass upon
certain provisions of the will.
Q: How do you compare Reyes to Nepomuceno?
A: There are cases when the intrinsic validity of
a will may be looked into.
CASE: BALANAY V. MARTINEZ
Facts: The testator disposed of conjugal assets
in her will as if she owned them all (which she
didn’t). The trial court first ruled upon the
intrinsic validity of the will then it subsequently
declared the will void. Was the trial court correct
to rule on the matter already?
Held: YES. The trial court acted correctly in
passing upon the will’s intrinsic validity even
before its formal validity had been established.
The probate of a will might become an idle
ceremony if on its face it appears to be
intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be
passed upon, even before it is probated, the
court should meet the issue.
It must be noted that the statement of the
testatrix that she owned the southern half of the
conjugal lands is contrary to law because,
although she was a co-owner thereof, her share
was inchoate and pro-indiviso.
HOWEVER, the trial court erred in declaring the
entire will void. Such illegal declaration does not
nullify the entire will. It is only that particular
provision that would be disregarded. The rule is
that the invalidity of one of several dispositions
contained in a will does not result in the
invalidity of the other dispositions, unless it is to
be presumed that the testator would not have
made such other dispositions if the first invalid
disposition had not been made.
CASE: RODRIGUEZ V. RODRIGUEZ
Facts: The testator wrote out in his will that his
children would get his apartment. Before the
testator died, however, he had sold the
apartment to his girlfriend. Upon the testator’s
death, the heirs protested the sale of the
apartment to the girlfriend, & claimed
ownership of the property by succession. They
alleged that the deed of sale was simulated and
void. But the will was never probated. Is the sale
void?
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Held: NO. The sale is valid, & the girlfriend owns
the property. The heirs failed to prove their right
of possession, as the last will & the Partition
Agreement have no legal effect since the will
has not been probated. Before any will can have
force, it must be probated. This cannot be
dispensed with and is a matter of public policy.
A Partition Agreement which was executed
pursuant to a will that was not probated cannot
be given effect.
Moreover, at the time the deed of sale was
executed in favor of the girlfriend, the testator
remained the owner thereof since ownership
would only pass to his heirs at the time of his
death. Thus, as owner of the property, he had
the absolute right to dispose of it during his
lifetime.
CASE: HEIRS OF P. URETA V. HEIRS OF L. URETA
Facts: Alfonso “executed” 4 deeds of sale
covering parcels of land in favor of his 3 children
(Policronio included) & his common-law wife to
lessen inheritance taxes. Despite the “sale,”
Alfonso continued to enjoy the land until his
death. When Alfonso died, Alfonso’s heirs
executed an extrajudicial partition over the land.
Conrado, the representative of the heirs of
Policronio signed the extrajudicial partition but
subsequently argued that he did not understand
what he signed.
The CA held that the extrajudicial partition is
void since there was no special power of
attorney given to Conrado by the rest of the
heirs of Policronio. There are thus two issues in
this case –
1. Was the “sale” of the parcels of land
during Alfonso’s valid?
2. Was the extrajudicial partition valid?
Held: NO to both.
1. Where a deed of sale states that the
purchase price has been paid but in fact
has never been paid, the deed of sale is
void for lack of consideration.
2. The heirs of Alfonso were of the position
that the absence of the Heirs of Policronio
in the partition or the lack of authority of
their representative results, at the very
least, in the preterition & not the invalidity
of the entire deed of partition. But this
theory is NOT viable. Preterition is a
concept of testamentary succession. In
the absence of a will, there can be no
preterition.
CASE: PALAGANAS V. PALAGANAS
Facts: Ruperta, a Filipino who became a
naturalized US citizen, died single & childless. In
the last will she executed in California, she
designated her brother, Sergio, as the executor
of her will for she had left properties in the
Philippines & in the U.S. May a will executed by
a foreigner abroad be probated in the
Philippines although it has not been previously
probated & allowed in the country where it was
executed?
Held: Yes. Our rules require merely that the
petition for the allowance of a will must show,
so far as known to the petitioner:
a) The jurisdictional facts;
b) The names, ages, & residences of the
heirs, legatees, & devisees of the testator
or decedent;
c) The probable value & character of the
property of the estate;
d) The name of the person for whom letters
are prayed; &
e) If the will has not been delivered to the
court, the name of the person having
custody of it.
Jurisdictional facts refer to the fact of death of
the decedent, his residence at the time of his
death in the province where the probate court is
sitting, or if he is an inhabitant of a foreign
country, the estate he left in such province. The
rules do not require proof that the foreign will
has already been allowed and probated in the
country of its execution.
*Note: There is also a reprobate of a will. Rule
77 of the Rules of Court specifically governs
reprobate. In reprobate, the local court
acknowledges as binding the findings of the
foreign probate court provided its jurisdiction
over the matter can be established. Reprobate
or re-authentication of a will already probated
and allowed in a foreign country is different
from that probate where the will is presented for
the first time before a competent court.
RULE 76 - Allowance or Disallowance of Will
Section 1. Who may petition for the allowance
of will. — Any executor, devisee, or legatee
named in a will, or any other person interested
in the estate, may, at any time after the death
of the testator, petition the court having
jurisdiction to have the will allowed, whether
the same be in his possession or not, or is lost
or destroyed.
The testator himself may, during his lifetime,
petition the court for the allowance of his will.
Section 2. Contents of petition. — A petition for
the allowance of a will must show, so far as
known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the
heirs, legatees, and devisees of the testator or
decedent;
(c) The probable value and character of the
property of the estate;
(d) The name of the person for whom letters
are prayed;
(e) If the will has not been delivered to the
court, the name of the person having custody
of it.
But no defect in the petition shall render void
the allowance of the will, or the issuance of
letters testamentary or of administration with
the will annexed.
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Section 3. Court to appoint time for proving
will. Notice thereof to be published. — When a
will is delivered to, or a petition for the
allowance of a will is filed in, the court having
jurisdiction, such court shall fix a time and
place for proving the will when all concerned
may appear to contest the allowance thereof,
and shall cause notice of such time and place
to be published 3 weeks successively, previous
to the time appointed, in a newspaper of
general circulation in the province.
But no newspaper publication shall be made
where the petition for probate has been filed by
the testator himself.
Section 4. Heirs, devisees, legatees, and
executors to be notified by mail or personally.
— The court shall also cause copies of the
notice of the time and place fixed for proving
the will to be addressed to the designated or
other known heirs, legatees, and devisees of
the testator resident in the Philippines at their
places of residence, and deposited in the post
office with the postage thereon prepaid at least
20 days before the hearing, if such places of
residence be known. A copy of the notice must
in like manner be mailed to the person named
as executor, if he be not the petitioner; also, to
any person named as co-executor not
petitioning, if their places of residence be
known. Personal service of copies of the notice
at least 10 days before the day of hearing shall
be equivalent to mailing.
If the testator asks for the allowance of his own
will, notice shall be sent only to his compulsory
heirs.
Section 5. Proof at hearing. What sufficient in
absence of contest. — At the hearing
compliance with the provisions of the last two
preceding sections must be shown before the
introduction of testimony in support of the will.
All such testimony shall be taken under oath
and reduced to writing. It no person appears to
contest the allowance of the will, the court may
grant allowance thereof on the testimony of
one of the subscribing witnesses only, if such
witness testify that the will was executed as is
required by law.
In the case of a holographic will, it shall be
necessary that at least one witness who knows
the handwriting and signature of the testator
explicitly declare that the will and the signature
are in the handwriting of the testator. In the
absence of any such competent witness, and if
the court deem it necessary, expert testimony
may be resorted to.
Section 6. Proof of lost or destroyed will.
Certificate thereupon. — No will shall be proved
as a lost or destroyed will unless the execution
and validity of the same be established, and
the will is proved to have been in existence at
the time of the death of the testator, or is
shown to have been fraudulently or
accidentally destroyed in the lifetime of the
testator without his knowledge, nor unless its
provisions are clearly and distinctly proved by
at least 2 credible witnesses. When a lost will is
proved, the provisions thereof must be
distinctly stated and certified by the judge,
under the seal of the court, and the certificate
must be filed and recorded as other wills are
filed and recorded.
Section 7. Proof when witnesses do not reside
in province. — If it appears at the time fixed for
the hearing that none of the subscribing
witnesses resides in the province, but that the
deposition of one or more of them can be taken
elsewhere, the court may, on motion, direct it
to be taken, and may authorize a photographic
copy of the will to be made and to be
presented to the witness on his examination,
who may be asked the same questions with
respect to it, and to the handwriting of the
testator and others, as would be pertinent and
competent if the original will were present.
Section 8. Proof when witnesses dead or
insane or do not reside in the Philippines. — If
the appears at the time fixed for the hearing
that the subscribing witnesses are dead or
insane, or that
none of them resides in the Philippines, the
court may admit the testimony of other
witnesses to prove the sanity of the testator,
and the due execution of the will; and as
evidence of the execution of the will, it may
admit proof of the handwriting of the testator
and of the subscribing witnesses, or of any of
them.
Section 9. Grounds for disallowing will. — The
will shall be disallowed in any of the following
cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time
of its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was procured
by fraud or trick, and he did not intend that the
instrument should be his will at the time of
fixing his signature thereto.
Section 10. Contestant to file grounds of
contest. — Anyone appearing to contest the
will must state in writing his grounds for
opposing its allowance, and serve a copy
thereof on the petitioner and other parties
interested in the estate.
Section 11. Subscribing witnesses produced or
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accounted for where will contested. — If the
will is contested, all the subscribing witnesses,
and the notary in the case of wills executed
under the Civil Code of the Philippines, if
present in the Philippines and not insane, must
be produced and examined, and the death,
absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some
of such witnesses are present in the Philippines
but outside the province where the will has
been filed, their deposition must be taken. If
any or all of them testify against the due
execution of the will, or do not remember
having attested to it, or are otherwise of
doubtful credibility, the will may nevertheless,
be allowed if the court is satisfied from the
testimony of other witnesses and from all the
evidence presented that the will was executed
and attested in the manner required by law.
If a holdgraphic will is contested, the same
shall be allowed if at least 3 witnesses who
know the handwriting of the testator explicitly
declare that the will and the signature are in
the handwriting of the testator; in the absence
of any competent witnesses, and if the court
deem it necessary, expert testimony may be
resorted to.
Section 12. Proof where testator petitions for
allowance of holographic will. — Where the
testator himself petitions for the probate of his
holographic will and no contest is filed, the fact
that the affirms that the holographic will and
the signature are in his own handwriting, shall
be sufficient evidence of the genuineness and
due execution thereof. If the holographic will is
contested, the burden of disproving the
genuineness and due execution thereof shall
be on the contestant. The testator to rebut the
evidence for the contestant.
Section 13. Certificate of allowance attached to
prove will. To be recorded in the Office of
Register of Deeds. — If the court is satisfied,
upon proof taken and filed, that the will was
duly executed, and that the testator at the time
of its execution was of sound and disposing
mind, and not acting under duress, menace,
and undue influence, or fraud, a certificate of
its allowance, signed by the judge, and
attested by the seal of the court shall be
attached to the will and the will and certificate
filed and recorded by the clerk. Attested copies
of the will devising real estate and of certificate
of allowance thereof, shall be recorded in the
register of deeds of the province in which the
lands lie.
SECTION 2.
Institution of Heir
Article 840. Institution of heir 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 & transmissible rights & legitime of said heirs. (763a)
obligations. (n)
Q: In his will, A instituted the conceived child of
his sister as his sole heir. Is the will valid or not?
A: Yes, it is valid. Anyone can be instituted as an
heir. Even if the child is not yet born, our laws
grant it the civil personality to receive anything
beneficial to it. For as long as she is sufficiently
described that her identity is known, it is valid.
Q: Does this provision apply to devisees &
legatees?
A: Yes.
Article 841. A will shall be valid even though –
1. It should not contain an institution of an
heir, or
2. Such institution should not comprise the
entire estate, &
3. 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 & the remainder of the estate shall pass to
the legal heirs. (764)
At Minimum: Comply with Formalities
Even if the will does not contain any
testamentary disposition, it will be formally valid
AS LONG AS it complies with all the formal
requisites.
Q: What is an example of a will where no heir is
instituted?
A: One example would be when the testator
merely lists his properties and also designates
an executor, but names no heir.
Q: What is the difference between compulsory
and legal heirs?
A: Compulsory heirs are those entitled to a
legitime; not all heirs are compulsory heirs. In
the absence of a will, the properties will go to
the intestate heirs – also referred to as the legal
heirs.
Q: Who are testamentary heirs?
A: Those in the last will and testament. They
may or may not be compulsory heirs.
Q: Who are compulsory heirs?
A: Those entitled to a legitime. Nieces, for
example, are not compulsory heirs by law, but
may be legal heirs.
Article 842. One who has no compulsory heirs
may dispose by will of all his estate or any part
of it in favor of any person having capacity to
succeed.
One who has compulsory heirs may dispose of
his estate provided he does not contravene the
provisions of this Code with regard to the
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Disposing Through Wills
COMPULSORY HEIRS? EXTENT OF DISPOSITION
No compulsory Entire hereditary estate
heirs
With compulsory The disposable portion;
heirs i.e., the net hereditary
estate minus legitimes
Mixed Succession
If the testator disposes by will of less than he is
allowed to, there will be mixed succession
 Testamentary succession - as disposed of
by the will
 Intestate succession – the part not
disposed of by the will
 Compulsory succession - legitimes, of
course, if there are any, pass by strict
operation of law
Q: What if a testator has two nieces, X & Y? The
testator designates that 50% of his property will
go to X. But Y is not named in the will. Who gets
the other 50% of the properties belonging to the
testator?
A: The testamentary heir, X, gets 50% because
that is what the testator wanted. The other 50%
will go to both X & Y, because both of them are
legal heirs.
Article 843. The testator shall designate the
heir by his name & surname, & when there are
2 persons having the same names, he shall
indicate some circumstance by which the
instituted heir may be known.
Even though the testator may have omitted the
name of the heir, should he designate him in
such manner that there can be no doubt as to
who has been instituted, the institution shall be
valid. (772)
Clarity is Important
 The heir, legatee, or devisee must be
identified in the will with sufficient clarity
to leave no doubt as to the testator’s
intention
 What is required is that the identity of the
designated successor be sufficiently
established
 Ex. “I designate as heir to 1/8 of my
estate my eldest first cousin.” -
ALLOWED!
Article 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the
institution when it is possible, in any other
manner, to know with certainty the person
instituted.
If among persons having the same names &
surnames, there is a similarity of circumstances
in such a way that, even with the use of other
proof, the person instituted cannot be
identified, none of them shall be an heir. (773a)
Resolving Ambiguities
 USE Art. 789
o When there is an imperfect
description, or when no person or
property exactly answers the
description, mistakes and omissions
must be corrected, if the error
appears from the context of the will or
from extrinsic evidence, excluding the
oral declarations of the testator as to
his intention [MEL]
o When an uncertainty arises upon the
face of the will, as to the application
of any of its provisions, the testator’s
intention is to be ascertained from the
words of the will, taking into
consideration the circumstances
under which it was made, excluding
such oral declarations.
 If ambiguity cannot be resolved, intestacy
as to that portion will result.
Q: Must the name be stated?
A: Not necessarily, so long as it is very, very
clear who the person being referred to is.
Q: What if the testator gives it to “his handsome
cousin.” Is the designation enough?
A: No, unless he only has one cousin or only 1
male cousin.
Q: What if the testator makes Superman his
heir, is that enough?
A: As a general rule, no, because it is not certain
who is being referred to in the situation. It
depends on the circumstances; perhaps he has
a friend who is referred to as Superman?
Q: What kind of evidence can be presented to
prove the identity of a supposed heir?
A: Any evidence, EXCEPT oral evidence from the
testator.
Article 845. Every disposition in favor of an
unknown person shall be void,
 UNLESS: by some event or circumstance
his identity becomes certain.
 HOWEVER: A disposition in favor of a
definite class or group of persons shall be
valid. (750a)
Refers to Ambiguity, Not Strangers
 A testator may institute someone who is a
perfect stranger to him.
 This provision refers to when the identity
of the heir is so ambiguous as to be
incapable of resolution.
o Ex. “I designate as heir to ¼ of my
estate a fiction writer.”
Article 846. Heirs instituted without
designation of shares shall inherit in equal
parts. (765)
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Collective Designation
GR: There is equality when there is collective
designation
EXC: When there is express stipulation to the
contrary
Applicable Only to Testamentary Heirs
Art. 846 will not apply to an heir who is both a
compulsory and a testamentary heir.
 That person should get both his
legitime & his testamentary portion
Sample Scenario
X, the testator, in his will institutes to ¼ of his
estate the following: A (his son), B (his cousin),
& C (his friend). A, being X’s compulsory heir,
will get his legitime plus 1/3 of the 1/4 given by
will. As testamentary heir, A gets a share equal
to those of B & C, but since A is also a
compulsory heir, & is entitled to his legitime
plus his testamentary share, he will end up
getting a larger slice of X’s estate than B or C.
Q: What is Art. 846 referring to?
A: It is referring to the principle of equality of
shares. If a testator names several people to be
his heir but does not specify the share of each
one of them, they are deemed to have equal
shares.
Article 847. When the testator institutes some
heirs individually & others collectively as when
he says, "I designate as my heirs A & B, & 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. (769a)
Equality & Individuality of Designation
 Follow the basic rule of equality!
 Presumption: Heirs collectively referred to
are designated per capita along with
those separately designated.
 If the testator intends a block designation,
he should so specify.
Q: A childless bachelor instituted his father & 3
brothers as his sole heirs in his will. How will you
distribute his estate of P 2 million among them?
A: They will each get equal proportions of the
free portion of the estate. When the testator
stipulates one heir individually and others
collectively, it is presumed that they are all
instituted individually. If the testator intended
collective institution, he should expressly state
so. However, in this case, the father will actually
receive more than the 3 brothers since he is a
compulsory heir entitled to his legitime. The
father will get P 1 million as his legitime & the
remaining millions will be divided equally
among the 4 voluntary heirs.
Article 848. If the testator should institute his
brothers & sisters, & he has some of full blood
& others of half blood, the inheritance shall be
distributed equally unless a different intention
appears. (770a)
Art. 848: Only Testamentary Succession
 Art. 848 refers only to testamentary
succession.
 In intestacy: Art. 1006 11 applies, which
establishes a proportion of 2:1 between
full- & half-blood brothers & sisters
(without prejudice to the rule prohibiting
succession ab intestato between
legitimate & illegitimate siblings. [Art.
992]12
Testamentary v. Intestate
Testamentary Intestate
Equality of shares Proportion of 2:1
of full- and half- between full- & half-
blood siblings, blood brothers & annulled under Art. 850, the ff. requisites must
unless the testator sisters (Art. 1006), &
provides otherwise only if the
disqualification in
Art. 992 does not
apply
Q: In his will, Roberto instituted two legitimate
brothers & two illegitimate brothers as his sole
heirs. How will you distribute his estate among
them?
A: In the absence of any stipulation to the
contrary, the law presumes that the testator
intended that the estate be divided among
them in equal parts. There is no difference
between an illegitimate & legitimate sibling
when it comes to testamentary succession.
Article 849. When the testator calls to the
succession a person & his children they are all
deemed to have been instituted simultaneously
& not successively. (771)
Article 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
11 Article 1006. Should brother & sisters of the full blood
survive together with brothers & sisters of the half blood, the
former shall be entitled to a share double that of the latter.
(949)
12 Article 992. An illegitimate child has no right to inherit
ab intestato from the legitimate children & relatives of his
father or mother; nor shall such children or relatives inherit in
the same manner from the illegitimate child. (943a)
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that the testator would not have made such
institution if he had known the falsity of such
cause. (767a)
Art. 850 Summary
GR: The falsity of the stated cause for the
testamentary institution does not affect its
validity or efficacy.
EXC: The falsity of the stated cause for
institution will set aside the institution, if certain
factors are present.
CASE: AUSTRIA V. REYES
Facts: Basilia filed a petition for probate of her
last will. Her petition was opposed by her nieces
& nephews (Ruben’s group), as in Basilia’s will,
there were 5 individuals (Perfecto’s group) that
she considered as her legal heirs who would
inherit her estate. When Basilia died 2 years
later & proceedings on her will began, Ruben’s
group claimed that the adoption papers of
Perfecto’s group were fake; thus, they were
never actually adopted. Basilia’s will stated that
she would give to her adopted children equal
shares of her estate as their compulsory
legitime. Does the falsity of the adoption, via
the lack of adoption papers, negate the right of
Perfecto’s group?
Held: NO. Before the institution of heirs may be
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 if he had known the falsity
of the cause.
Art. 850 is a positive injunction to ignore
whatever false cause the testator may have
written in his will for the institution of heirs.
Such institution may be annulled only when one
is satisfied, after an examination of the will, that
the testator clearly would not have made the
institution if he had known the cause for it to be
false. Would the late Basilia have caused the
revocation of the institution of heirs if she had
known she was mistaken in treating these heirs
as her legally adopted children? Or would she
have instituted them nonetheless?
The decedent’s will, which alone should provide
the answer, is mute on this point or at best is
vague and uncertain. The phrases ‘mga
sapilitang tagapagmana' and ‘sapilitang mana,'
were borrowed from the language of the law on
succession and were used, respectively, to
describe the class of heirs instituted and the
abstract object of the inheritance. They offer no
absolute indication that the decedent would
have willed her estate other than the way she
did if she had known that she was not bound by
law to make allowance for legitimes. Her
disposition of the free portion of her estate
(fibre disposicion) which largely favored the
Perfecto group shows a perceptible inclination
on her part to give to the respondents more
than what she thought the law enjoined her to
give to them.
Doubts in Favor of Testacy
Whatever doubts one entertains in his mind
should be swept away by these explicit
injunctions in the Civil Code: The words of a will
are to receive an interpretation which will give
to every expression some effect, rather than
one which will render any of the expressions
inoperative; and of two modes of interpreting a
will, that is to be preferred which will prevent
intestacy
Balane Thinks: What Paragraph 1 Should Be
Art. 851. If the testator has instituted only one
heir, and the institution is limited to an aliquot
part of the inheritance less than the entire
disposable portion, legal succession takes place
with respect to the remainder of the disposable
portion.
Q: What are the requisites before the institution
of an heir may be annulled under Art. 850?
A: The requisites as provided in Austria v. Reyes
are –
1. The cause of the institution of the 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
intention, had he known the falsity of the cause.
Q: In his will, Tom instituted as his sole heir
Rosario, whom he believed to be the daughter
of his wife in a previous relationship. The
allowance of his will was opposed by his brother
on the ground that Rosario was not really the
daughter of Tom’s wife but of her sister. If you
were the judge, how will you rule?
A: I would rule in favor of Rosario. In order for a
false cause to invalidate the institution of an
heir, such cause must be expressly stated in the
will and it must be seen that if it were not for
such cause, the heir would not have been so
instituted. Absent these requisites, the false
cause will simply be considered unwritten and
the institution of the heir will remain valid.
Article 851. If the testator has instituted only
one heir, & the institution is limited to an
aliquot part of the inheritance, legal succession
takes place with respect to the remainder of
the estate.
The same rule applies if the testator has
instituted several heirs, each being limited to
an aliquot part, & all the parts do not cover the
whole inheritance. (n)
Balane Explains
Legal succession does not take place with
respect to the remainder of the estate, but to
the remainderof the disposable portion. There
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may, after all, be compulsoryheirs whose
legitimes will therefore cover part of the estate;
the legitimes do not pass by legal or intestate
succession.
Better Version
If the testator has instituted only one heir, and
the institution is limited to an aliquot part of the
inheritance less than the entire disposable
portion, legal succession takes place with
respect to the remainder of the disposable
portion.
The same rule applies, if the testator has
instituted several heirs, each being limited to an
aliquot part, and all the parts do not cover the
whole disposable portion.
Q: What if A has no compulsory heirs & gave
50% to another named in his will?
A: The rest goes to his legal heirs.
Q: What if there were 2 designated heirs? What
happens to the other 50%?
A: 50% or whatever wasn’t given will still go to
the legal heirs.
Article 852. If it was the intention of the
testator that the instituted heirs should
become sole heirs to the whole estate, or the
whole free portion, as the case may be, & each
of them has been instituted to an aliquot part
of the inheritance & their aliquot parts together
do not cover the whole inheritance, or the
whole free portion, each part shall be increased
proportionally. (n)
Q: What is the difference between Art. 851 &
Art. 852/3?
A: In Art. 851, the intent was really to give only
a specific portion. In Art. 852/3, the intent was
to give ALL of the property, which is why there
is an increase or decrease.
Article 853. If each of the instituted heirs has
been given an aliquot part of the inheritance, &
the parts together exceed the whole
inheritance, or the whole free portion, as the
case may be, each part shall be reduced
proportionally. (n)
When Art. 851 & 852 Apply
(1) There is more than one instituted heir,
(2) The testator intended them to get the whole
estate or the whole disposable portion, as the
case may be, &
(3) The testator has designated a definite
portion for each heir.
Situations Contemplated
The total of all the portions is less than the
whole estate (or the whole disposable portion).
Therefore, a proportionate increase is necessary.
 The difference cannot pass by intestacy
because the testator’s intention is clear
 to give the instituted heirs the entire Manresa’s Definition
amount. Preterition consists in –
(1) The omission of an heir in the will,
Scenario 1 (2) Either because he is not named, or, although
X dies without any compulsory heirs but leaves he is named as a father, son, etc., he is neither
a will containing the following disposition: “I instituted as an heir nor expressly disinherited,
institute A, B, and C to my entire estate in the nor assigned any part of the estate, thus being
following proportions: A-1/2; B-2/3; C-1/8.” At tacitly deprived of his right to the legitime.
the time of his death, X’s estate is valued at
P600,000. Manresa’s Definition Broken Down
1. The total of the specified portions is only Preterition is:
23/24. A proportionate increase should be (1) Not naming an heir at all
made. (2) Mentioning an heir without instituting him or
Per the proportions specified in the will: expressly disinheriting him
A = 300,000 (3) Not assigning him to some part of the
B = 200,000 properties
C = 75,000  A donation inter vivos is an advance of the
---------------------- legitime under Art. 906, 909, 910 & 106213
575,000
2. Formula for A: Preterition
It is the implied removal of an heir (as opposed
300,000 X to disinheritance, which is express)
------------------ = ------------------  Ex. When X leaves in his will all his
575,000 600,000 properties to his children in a 2 nd
marriage, without mentioning kids from
3. Final Answers the 1st marriage, there is preterition
A = 313,043.48
B = 208,695.65 Q: What type of heir is concerned in preterition?
C = 78,260.87 A: The compulsory heir ONLY. No other type is
contemplated.
Scenario 2
X dies with Y (a legitimate child) as his only What is Not Considered Preterition
compulsory heir. X leaves a will stating: “I give (1) If the heir in question is instituted in the will
A, B, and C the entire disposable portion (1/2) of but the portion given to him by will is less than
my estate, such that A is to get 1/4 of the his legitime, there is no preterition.
estate; B, 1/8 thereof; and C 1/12 thereof.” X’s (2) If the heir is given a legacy or devise, there
net estate is worth P600,000. is no preterition.
(3) If the heir has received a donation Inter
Of X’s P600.000 estate, then, the sharings will vivos
be: Y = 300,000 (his legitime) (4) If the heir is not mentioned in the will nor
A = 163,636.19 was a recipient of a donation inter vivos, but not
B = 81,818.19 all of the estate is disposed of by will, there is
C = 54,545.45 no preterition

Art. 854 Formula as espoused by Dean Mel Sta.
Maria:
Aggregate amt. of estate x share given to heir
————————————————————————
————————
Total amount given to all
*Article 854. The preterition or omission of
one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the
execution of the will or born after the death of
the testator, shall annul the institution of heir;
 BUT: The devises & legacies shall be valid
insofar as they are not inofficious.
If the omitted compulsory heirs should die
before the testator, the institution shall be
effectual, without prejudice to the right of
representation. (814a)
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What IS Considered Preterition
When the direct heir receives NOTHING from –
(1) Testamentary succession
(2) Legacy or devise
(3) Donation inter vivos
13 “Art. 909. Donations given to children shall be charged to
their legitime.
Donations made to strangers shall be charged to that part of
the estate of which the testator could have disposed by his
last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced ac- cording to the
rules established by this Code.
Art. 910. Donations which an illegitimate child may have
received during the lifetime of his father or mother, shall be
charged to his legitime.
“Should they exceed the portion that can be freely disposed
of, they shall be reduced in the manner prescribed by this
Code.
Art. 1062. Collation shall not take place among compulsory
heirs if the donor should have so expressly provided, or if the
donee should repudiate the inheritance, unless the donation
should be reduced as inofficious.
(4) Intestacy
*Preterition is TOTAL omission of a compulsory
heir from the inheritance.
CASE: MANINANG V. CA
Facts: When Clemencia died, she left a will
which said –
It is my will that all my real properties
located in Manila & all my personal
properties shall be inherited upon my
death by Dra. Soledad Maninang with
whose family I have lived continuously
for around the last 30 years now. Dra.
Maninang & her husband Pamping have
been kind to me. ... I have found peace
& happiness with them even during the
time when my sisters were still alive and
especially now when I am now being
troubled by my nephew Bernardo and
niece Salvacion. I am not incompetent
as Nonoy would like me to appear. I
know what is right & wrong. I can decide
for myself. I do not consider Nonoy as
my adopted son. He has made me do
things against my will.
Dra. Soledad filed a petition for the probate of
the will of the decedent. Nonoy then filed a
Motion to Dismiss the Testate Case on the
ground that the holographic will was void
because he, as the only compulsory heir &
adopted son of the decedent, was preterited &,
therefore, intestacy should ensue. In her
Opposition to said Motion to Dismiss, petitioner
Soledad averred that it is still the rule that in a
case for probate of a Will, the court's area of
inquiry is limited to an examination of the
extrinsic validity of the will; and that Nonoy was
effectively disinherited by the decedent. Should
the Motion to Dismiss be granted?
Held: NO. The law enjoins the probate of the Will
and public policy requires it, because unless the
Will is probated and notice thereof given to the
whole world, the right of a person to dispose of
his property by Will may be rendered
nugatory. One exception to this general rule is
when compulsory heir is totally preterited,
making the will intrinsically invalid. However, for
this exception to apply, it becomes important to
examine whether the words in the will in this
case lead to preterition or disinheritance.
The effects flowing from preterition are totally
different from those of disinheritance.
Preterition shall annul the institution of heir. This
annulment is in toto, unless in the will there are,
in addition, testamentary dispositions in the
form of devises or legacies. In ineffective
disinheritance under Art. 918, such
disinheritance shall also "annul the institution of
heirs,” but only "insofar as it may prejudice the
person disinherited," which last phrase was
omitted in the case of preterition. Better stated
yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited
heirs have been illegally deprived.
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The Court remanded the case back to the trial
court for a determination of whether the will
contained a disinheritance or preterition.
[MEL ASKED] Q: What if the son as omitted, but
in his birthday, he was given a car as a gift; is
that preterition?
A: No, because a donation was made in advance
of the legitime.
[MEL ASKED] Q: What if the son was not given a
gift or legacy but his dad only disposed of 20%
of his estate. Is there preterition?
A: NO. The son will still be able to receive
something in that case.
[MEL: If he is a devisee or legatee, then he also
cannot claim preterition.]
Q1: X has 5 kids but only gives all his property
to his 4 heirs. The property is cash worth P1M.
How will this be divided?
A: Since there was a preterited heir, the will
shall be annulled. The P1M will be divided
among the 5 of them.
Q2: Can the 4 kids just agree with the 1 kid that
he’ll just get his legitime from them?
A: NO. The preterited heir gets more in law.
Q3: How about if in the same will, a legacy was
given to the church?
A: The legacy subsists despite the preterition.
The legacy will be given then the 5 kids divide
the rest.
Q: What is meant by inofficious?
A: If it encroaches on the legitime of the
compulsory heirs. An inofficious donation or
legacy will be void to the extent that it is
inofficious.
Q: What if there were 5 kids, but one of them
was disinherited. Later, it was learned that the
disinheritance was not valid. The total worth of
the estate is P1M. How much can the one kid
get?
A: P100,000 out of P1M representing his
legitime. For this defective Preterition, he can
ask for P200,000. One P100K is his legitime, and
the other P100K his share as heir.
CASE: REYES V. BARRETTO-DATU
Facts: Bibliano & Maria were married. When
Bibliano died, he left in his will some portions for
Salud, and some for Milagros, both surnamed
Barretto. Milagros is now contending that the
partitioning of Bibliano’s estate was totally void
& that Salud had not acquired valid title from it
of Bibliano’s properties, on the ground that
Milagros got less in it than what should be her
share under law. The trial court ruled in
Milagros’ favor, stating that the latter was the
only legal heir & was thus entitled to all
properties of Bibliano’s.
Held: Bibliano’s will is VALID. There was no
Preterition, or total omission, of a forced heir,
even if Salud is not actually Bibliano’s daughter.
While the ½ share assigned to Salud impinged
on Milagros’ legitime, Salud did not, for that
reason, cease to be Bibliano’s testamentary
heir.
Heir’s Remedy When He is Named in Will but is
Given Less than He Should Under His Legitime?
1. Art. 906 - Any compulsory heir to whom the
testator has left by any title less than the
legitime belonging to him may demand that the
same be fully satisfied.
2. Art. 907 - Testamentary dispositions that
impair or diminish the legitime of the
compulsory heirs shall be reduced on petition of
the same, insofar as they may be inofficious or
excessive.
CASE: AZNAR V. DUNCAN
Facts: Edward died. In his will, Lucy & Helen
were both named as heirs, but Helen was only
given a legacy to the extent of P3,600. Lucy’s
legitimacy is certain, but Edward did not
acknowledge Helen as his child during his
lifetime; she was judicially declared his daughter
after his death. The trial court ruled there was
preterition, so the will should be annulled. Is
there preterition?
Held: NO. Helen is just entitled to recover her
proper legitime under the law. The estate of the
deceased Edward upon his death consisted of
399 shares in the Plantation Company and a
certain amount in cash. 1/4 of said estate
descended to Helen as her legitime. Since she
became the owner of her share as of the
moment of the death of the decedent, she is
entitled to a corresponding portion of all the
fruits or increments thereof subsequently
accruing. These include the stock dividends on
the corporate holdings. The contention of Lucy
that all such dividends pertain to her according
to the terms of the will cannot be sustained, for
it would in effect impair the right of ownership
of Helen with respect to her legitime.
CASE: SEANGIO V. REYES
Facts: The will of Segundo stated that he was
disinheriting his son, Alfredo, as he was a bad
son & spoke disrespectfully to him. Victoria, his
daughter, was mentioned as having seen the
fight. Is there preterition?
A: NO. Segundo was merely expressing that he
was bequeathing his estate to all compulsory
heirs, except Alfredo. Segundo did not even
institute an heir to the exclusion of his other
heirs. The mere mention of the name of Virginia
(his daughter) in the document as a witness to
the spat is not equivalent to making her a
universal heir.
Direct Line
Art. 964 - A direct line is that constituted by the
series of degrees among ascendants and
descendants.
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Q: What is “direct line”?
A: Direct descendants, or in some cases,
ascendants. Uncles & aunts are collateral
relatives, and not direct.
Q: Is the spouse in the direct line?
A: NO. Although compulsory, a spouse is not in
the direct line.
Q: Are illegitimate children considered in the
direct line?
A: For Manresa, yes, though there is debate.
However, Balane agrees with Manresa, since the
law does not distinguish.
Covered Heirs
Art. 854 is not totally accurate, as it seems to
exclude those born after the will is written but
before the testator dies. Instead, it should be:
“whether living at the time of the execution of
the will or born subsequently, even after the
testator’s death.”
When There Can Be Determination of Existence
of Preterited Heirs
The determination of whether or not there are
preterited heirs can be made only upon the
testator’s death.
Descendants of Heirs Are Affected by Preterition
Should the preterited heir predecease (or be
unworthy to succeed) the testator, the question
of preterition of that heir becomes moot.
However, should there be a descendant of that
heir who is himself preterited, then the effects
of preterition will arise.
 Ex. X has two legitimate children: A & B. X
makes a will which results in the
preterition of A. A predeceases X but
leaves a legitimate child A-1, who is
himself completely omitted from the
inheritance (A-1 being entitled to succeed
X by representation). Art. 854 will apply,
not because A was preterited but because
A-1 was preterited.
 Ex. If the preterited heir who pre-
deceases is a child but the testator is
survived solely by ascendants, who are
entitled to a legitime in default of
descendants.
CASE: ACAIN V. IAC
Facts: Nemesio died & left as universal heirs the
ff.: petitioner, his brothers Antonio, Flores, &
Jose & his sisters Anita, Concepcion, Quirina, &
Laura were instituted as heirs. However, he
excluded his adopted daughter, Virginia, &
widow. Is there preterition?
Held: YES, but only as to the adopted daughter.
Virginia’s legal adoption by the testator has not
been questioned by petitioner. Under Art. 39 of
P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted
person the same rights and duties as if he were
legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It Remedios also claims this is actually a case of
cannot be denied that she was totally omitted & ineffective disinheritance. But SC held
preterited in the will of the testator & that both otherwise. It stated the differences as follows:
adopted child and the widow were deprived of
at least their legitime. Neither can it be denied PRETERITION DISINHERITANCE
that they were not expressly disinherited. Consists in the A testamentary
Hence, this is a clear case of preterition of the omission in the disposition depriving
legally adopted child. testator’s will of the any compulsory heir
As to the wife, she is not considered an heir in forced heirs or any of his share in the
the direct line, even if she is a compulsory heir, one of them, either legitime for a cause
as she is neither an ascendant or descendant. because they are not authorized by law.
She thus cannot claim preterition of her share. mentioned therein, or,
though mentioned,
Effect of Preterition they are neither (1)
 Annulment of the institution of heir instituted as heirs nor
 Validity of legacies & devises to the are (2) expressly
extent that these latter do not impair disinherited.
legitimes. A total omission of an Must be express &
heir, without express must be supported by
CASE: NUGUID V. NUGUID disinheritance a legal cause
Facts: Rosario died without descendants. specified in the will
Surviving her were her parents & siblings. In Implied basis: itself
Rosario’s will, she instituted her sister, Inadvertent omission
Remedios, as her universal heir. The probate of Annuls the institution Nullity is limited to
this will was opposed by Rosario’s parents, who of the heir, in toto; that portion of the
claimed to have been preterited. The will reads: thus, it throws open to estate of which the
I, ROSARIO NUGUID, being of sound and the estate the entire disinherited heirs
disposing mind and memory, having inheritance have been illegally
amassed a certain amount of property, do deprived
hereby give, devise, and bequeath all of the
property which I may have when I die to my
HOWEVER: The
beloved sister Remedios. legacies or devises
Is there preterition? stand, to the extent of
Held: YES. The will here institutes Remedios as the free portion
the sole, universal heir—nothing more. No (merely to be
specific legacies or bequests are therein reduced, not set
provided for. The nullity is thus complete. aside, if the legitimes
Perforce, Rosario died intestate. are impaired) but the
There is no escaping the conclusion that the institution of heirs, if
universal institution of petitioner to the entire any, will be swept
inheritance results in totally abrogating the will. away.
Because, the nullification of such institution of
universal heir—without any other testamentary The will here does not explicitly disinherit the
disposition in the will—amounts to a declaration testatrix’s parents, the forced heirs. It simply
that nothing at all was written. Carefully worded omits their names altogether. Said will rather
and in clear terms, Art. 854 offers no leeway for than be labeled ineffective disinheritance is
inferential interpretation. Giving it an expansive clearly one in which the said forced heirs suffer
meaning will tear up by the roots the fabric of from preterition.
the statute.
One should not be led astray by the statement Curing Ineffective Disinheritance
in Art. 854 that, annulment notwithstanding, If the testator explicitly disinherits the heir, this
“the devises and legacies shall be valid insofar Art. 854 will not apply. Should the disinheritance
as they are not inofficious.” Legacies and be ineffective, for absence of one or other of the
devises merit consideration only when they are requisites for a valid disinheritance, the heir is
so expressly given as such in a will. Nothing in simply entitled to demand his rightful share.
Art. 854 suggests that the mere institution of a
universal heir in a will—void because of Q: In his will, Joseph instituted his three sons
preterition—would give the heir so instituted a David, Isaac, and Abraham to be the sole heirs
share in the inheritance. As to him, the will is of his estate. He did not include Martha,
inexistent. There must be, in addition to such because she was only an adopted child. Can she
institution, a testamentary disposition granting oppose the allowance of his will on the ground
him bequests or legacies apart and separate of preterition?
from the nullified institution of heir. A: Yes, she can oppose the allowance of the will.
The law mandates that a testator’s children be
considered as the primary compulsory heirs.

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Although they receive different portions, they
are all entitled to a part of their parent’s estate
whether they are legitimate, illegitimate,
adopted or legitimated children.
Q: He also did not include his wife, because he
had given her a set of jewelries on their
wedding day. Can she oppose the allowance of
his will on the ground of preterition?
A: No, she cannot oppose the will. The provision
on preterition only covers those in the direct
line, meaning the children, parents and other
ascendants and descendants in the direct line.
The wife is not part of the direct line.
Q: A 40-hectare parcel of land, situated in
Davao City & covered by TCT No. 12345, is
owned by Magdalena & her 3 children, Jose,
Jorge & Melissa, in equal shares. Magdalena
died, & in a document entitled “My Will,” wholly
written, dated & signed in her handwriting, was
found in her aparador. The will states: “It is my
will to give my only property, 40 hectares of
land in Davao City, covered by TCT No. 12345,
to the children of my daughter Melissa, Mariano
& Marjorie.”
 Q1: Is the will extrinsically valid?
 A1: Yes, the will is extrinsically valid. It is a
holographic will, which requires only that
it is wholly written, dated & signed by the
testator in his or her own handwriting.
 Q2: Is the will intrinsically valid?
 A2: No. A testator can only transmit
property, rights & obligations which
belong to him or her. Moreover, the
preterition of compulsory heirs in the
direct line, whether living at the time of
the execution of the will or born after the
testator’s death, shall annul the institution
of heir. Here, the testator Magdalena
disposed of the entire 40 hectares of
property, to the prejudice of her co-
owners. She also totally omitted heirs in
the direct line – Jose, Jorge & Melissa. The
will is this intrinsically void.
 Q3: On the basis of your answers above,
how should the estate of Magdalena be
divided?
 A3: Since there was preterition, the
institution of Mariano & Marjorie as heirs
shall be annulled. While it may be argued
that the disposition of the land was a
devise, it must be noted that the 40-
hectare property was Magdalena’s sole
property & thus her entire estate. As such,
the law on preterition will be followed,
annulling the institution of heir in the will.
Following the law on succession, since
there is no will, succession will proceed
through intestate proceedings, by virtue
of which the compulsory heirs, Jose, Jorge
& Melissa will divide equally, among
themselves, a ¼ pro indiviso share of the
40-hectare property that Magdalena
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actually owns.
Article 855. The share of a child or
descendant omitted in a will must
 First be taken from the part of the estate
not disposed of by the will, if any;
 If that is not sufficient, so much as may be
necessary must be taken proportionally
from the shares of the other compulsory
heirs. (1080a)
Application of Art. 855
This article applies where a compulsory heir is
not preterited but left something (because not
all the estate is disposed of by will) less than his
legitime. Art. 855 really talks of a completion of
legitime.
 This Article is thus misplaced.
How to Fill Up Compulsory Heirs
1. From the portion of the estate left undisposed
of by will.
2. From the shares of the testamentary heirs,
legatees, & devisees, proportionally.
How Art. 855 Actually Applies
1. This coverage should extend not only to
children & descendants, but to ALL compulsory
heirs. As subsequent articles (906, etc.)
mandate, any compulsory heir whose legitime is
impaired may demand that the same be fully
satisfied.
2. The proportionate reductions (after
consuming the undisposed portion) should be
borne not by the compulsory heirs as such but
by the testamentary heirs, including the
devisees & legatees.
Article 856. A voluntary heir who dies before
the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator,
a person incapacitated to succeed, & one who
renounces the inheritance, shall transmit no
right to his own heirs except in cases expressly
provided for in this Code. (766a)
Non-Transmission as Absolute Rule
 This rule of non-transmission is absolute;
there is no exception to it.
 Representation does not constitute an
exception, because in representation the
person represented does not transmit
anything to his heirs. Representation is
rather a form of subrogation.
Summary of Rules
 An heir — whether compulsory, voluntary,
or legal — transmits nothing to his heirs in
case of predecease, incapacity,
renunciation, or disinheritance.
 BUT: Rules of representation will apply –
o In case of (a) predecease or (b)
incapacity of compulsory or legal
heirs
 o In case of disinheritance of Held: The TCT cannot be declared void. While
compulsory heirs Delia’s exclusion had the effect of preterition,
this kind of preterition, in the absence of proof
CASE: PECSON V. CORONEL of fraud & bad faith, does not justify a collateral
Facts: The testator excluded her blood relatives attack on the TCT. The relief would be in Art.
(not compulsory heirs) in her will and appointed 1104, which provides that when a preterition is
an unrelated sole beneficiary. The relatives not done in bad faith or with fraud, the partition
assail the validity of the will because according shall not be rescinded, but the preterited heir
to them it was very unlikely for the testator to shall be paid the value of the share pertaining to
deliberately exclude them and for the former to her. The case should thus be remanded to
appoint a beneficiary who is not her relative. determine the value due to Delia.
Held: The will is valid. Although family ties in
this country are very strongly knit, the exclusion Complete Statement of the Rule
of relatives, who are not forced heirs, from the An heir – whether compulsory, legal, or
inheritance is not an exceptional case. Even if voluntary – transmits NOTHING to his heirs in
the appointment of a beneficiary do not seem to case of [DRIP]
be the most usual and ordinary because the  Disinheritance
beneficiary is not a relative of the testatrix who  Renunciation
has relatives by blood, this alone will not render  Incapacity
the appointment void per se.  Predecease
The fact that the only heir named in the will is HOWEVER, rules of representation will apply
appointed executor is no proof that the [DIP] –
testator's intention was that said executor  In case of Disinheritance of legal heirs, &
should distribute the estate among the relatives  (a) Incapacity or (b) Predecease of
of the testator. A sole heir may also be an compulsory or legal heirs
executor, inasmuch as the function of an
executor is not limited merely to distributing the Outline of Rules
inheritance, but he has other duties and powers, Heir Type Predeceas Incapacit Renunciation Disinheritance
such as to preserve, defend, and liquidate the e y
- Transmits nothing - Transmits - Transmits
inheritance until it is delivered to the person - Representation nothing nothing
entitled to it. Compuls
- No - Representation
Representation
ory
[TNR]
CASE: DEL ROSARIO V. DEL ROSARIO [TNR]
[TNNR]
Facts: Nicolas died. In his will, he named his - Transmits nothing Not applicable
nephews as entitled to allowances from his wife Voluntary
- No Representation
so long as she lived; thereafter, they could still [TNNR] [N/A]
get allowance if they were still studying for a - Transmits nothing - Transmits Not applicable
- Representation nothing
bachelor’s degree. The wife died. May the - No
Legal
nephews still demand allowance? [TNR] Representation [N/A]
Held: NO. The provision in the will granting them [TNNR]
allowance was hinged on the wife being alive.
Now that the wife is dead & they long since SECTION 3. Substitution of Heirs.
graduated from college & received they
bachelor’s degree already, they can no longer Article 857. Substitution is the appointment of
claim allowance. another heir so that he may enter into the
inheritance in default of the heir originally
CASE: MANINANG V. CA instituted. (n)
Facts: Clemencia left a will where she said all
her properties would be inherited by Maninang, Flaw in the Definition
with whose family Celemnia stayed for many The definition above excludes the
years. The will also provided that she “did not fideicommissary. In the fideicommissary, the
consider Bernardo as her adopted son.” Is this second heir does not succeed in default of the
disinheritance or preterition? first, but after the first.
Held: UNCERTAIN. The trial court said this was
preterition and not disinheritance. SC said the Balane’s Version
facts were not conclusive and remanded. Substitution is the appointment of another heir
so that he may enter into the inheritance in
CASE: NON V. CA default of, or subsequent to, the heir originally
Facts: Delia, a retarded child of Virginia, was instituted.
allegedly excluded from the deed of
extrajudicial settlement between Virginia’s Fideicommissary v. Simple Substitution
heirs. As such, on her behalf, a sibling posits  Fideicommissary – the testator imposes a
that the issued TCT to the questioned property restriction or burden on the first heir,
should be declared void.

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 coupled with a selection of a subsequent
recipient of the property.
 Simple substitution – a conditional
institution; the testator simply makes a
second choice, in case the first choice does
not inherit.
Article 858. Substitution of heirs may be:
(SC-BC-RECI-FIDEI)
(1) Simple or Common;
(2) Brief or Compendious;
(3) RECIprocal; or
(4) FIDEIcommissary. (n)
Kinds of Substitution [MEL asked definitions]
(1) Simple or common – Art. 859
(2) Brief or compendious – Art. 860
(3) Reciprocal – Art. 861
(4) Fideicommissary – Art. 863
Reality
There are actually only 2 kinds of substitution:
(1) & (4); they are mutually exclusive & cannot
co-exist. The other 2 are just variations.
Article 859. The testator may designate one
or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die
before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of
the cases to which it refers, shall comprise the
three mentioned in the preceding paragraph,
unless the testator has otherwise provided.
(774)
Causes of Simple Substitution (RIP)
(1) Repudiation of first heir
(2) Incapacity of first heir
(3) Predecease of first heir
How Testator May Provide for Simple
Substitution
(1) By specifying all 3 causes
(2) By merely providing for simple substation
Restricted Simple Substitution
The testator may limit the operation of simple
substitution by specifying only 1 or 2 causes.
Supposing the Substitute Dies Before the 1st
Heir Manifests His Renunciation, May the
Successors of the Substitute Acquire
Testamentary Disposition?
Two views –
 YES, the substitute must have capacity to
succeed.
o Art. 1034 – If the institution, devise
or legacy is conditional, the time of
compliance with the condition shall
also be considered.
o A simple substitution is also a form
of conditional institution.
 NO, the substitute need not have capacity.
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o Art. 1024 – The effects of
acceptance or repudiation of the
inheritance shall always retroact to
the moment of the decedent’s
death.
o Art. 533 – One who validly
renounces an inheritance is deemed
never to have possessed the same.
Q: In his will, Romulo instituted the Society of
Jesus as his heir & his brother, Romulo, Jr., as its
substitute. Romulo, Jr. objected to the institution
of the Society of Jesus as primary heir on the
ground that it is not a natural person & cannot
die. Is the objection valid or not? Explain.
A: The objection is not valid. First, even a
juridical person can have capacity to succeed.
Second, the death of the primary heir is not the
only means by which there can be substitution
(e.g., there is still renunciation). Finally, Romulo,
Jr. has no vested rights over the property of
Romulo. In a simple substitution, the
substitute’s right in the testator’s inheritance
only arises in default of the primary heir
instituted. Considering that Romulo, Jr. has not
shown that the Society of Jesus failed to
succeed, Romulo, Jr. has no enforceable right to
the Society’s institution as heir.
Q: In his last will, Daniel instituted Ernesto to all
his properties, with Carlos as substitute heir.
One day after Daniel died, Ernesto also died.
Will the properties go to Carlos or the heirs of
Ernesto?
A: Daniel’s properties will go to the heirs of
Ernesto. In cases of simple substitution, the
substitution will only take place in the event
that the primary heir instituted predeceases the
testator. This is in line with the fact that
succession at the time of the testator’s death.
Here, Ernesto, the primary heir, died after
Daniel. At the time of Daniel’s death, Ernesto
was still alive, & so the inheritance passed to
Ernesto, not Carlos, the latter being merely a
substitute. As such, since simple substitution
did not take place, the heirs of Ernesto will get
the property.
Article 860. Two or more persons may be
substituted for one; & one person for two or
more heirs. (778)
Technical Distinctions
 Brief — two or more substitutes for one
original heir
 Compendious — one substitute for two or
more original heirs
Brief & Compendious Substitution
This Article talks about brief & compendious
substitution, which may be either
fideicommissary or simple.
Effect of Default in a Case Where 1 Substitutes
2 or more Original Heirs
 If only 1 of the 2 heirs default,
substitution will not take place; the
share left vacant will accrue to the
surviving co-heir/s.
 Substitution will take place only if ALL
the original heirs are disqualified.
 Ex.: X makes the ff. provision in his will:
“I institute to A & B 1/3 of my estate &
nominate C as their substitute.”
o If A predeceases B, the 1/3
portion will accrue to B.
o There is no substitution by C.
 EXCEPTION: If the testator so provides
that there will be substitution in the
event of the death, renunciation &/or
incapacity of any one of the original
heirs.
Article 861. If heirs instituted in unequal
shares should be reciprocally substituted, the
substitute shall acquire the share of the heir
who dies, renounces, or is incapacitated, unless
it clearly appears that the intention of the
testator was otherwise. If there are more than
one substitutes, they shall have the same
share in the substitution as in the institution.
(779a)
Reciprocal Substitution
This Article talks about reciprocal substitution,
which may be either fideicommissary or simple.
Illustration of 2nd Sentence
A, B, & C are instituted, respectively, to ½, 1/3,
& 1/6 of the estate of X.
 If A predeceases X, B & C will acquire A’s ½
portion in the proportion of 2:1 (their
testamentary shares being 1/3 and 1/6
respectively); so on, & so forth.
Q: A executed a will instituting B & C as heirs,
with D as their substitute. B & C figured in a car
accident in which B died immediately, while C
laid in a coma for 6 months. A died one month
before C died.
Q1: Can D claim the inheritance from A?
A: No, D cannot claim the inheritance from A.
The instant case involves a compendious
substitution, wherein 1 heir substitutes 2 or
more heirs in the event they ALL predecease the
testator, renounce, the inheritance or are
incapacitated to succeed. In the case at bar,
only B predeceased the testator A. There was no
renunciation or incapacity on the part of C.
Thus, substitution by D cannot take place. The
only exception to this is if the testator expressly
stipulated that D will succeed in the event that
any of the heirs (B or C) predecease, renounce,
or are incapacitated. Otherwise, as in the case
at bar, D cannot claim the inheritance.
Q2: Can D claim at the least the portion
intended for B?
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A: No, D cannot claim the portion intended for B.
Since D’s substitution did not take place, D did
not become an heir for all intents & purposes of
the law. It is submitted that B’s portion will go to
C.
Article 862. The substitute shall be subject to
the same charges & conditions imposed upon
the instituted heir, unless –
1. The testator has expressly provided the
contrary, or
2. The charges or conditions are personally
applicable only to the heir instituted.
(780)
*Article 863. A fideicommissary substitution
by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation (1) to
preserve & (2) to transmit to a second heir the
whole or part of the inheritance, shall be valid
& shall take effect,
 PROVIDED such substitution does not
go beyond one degree from the heir
originally instituted, &
 PROVIDED further, that the fiduciary or
first heir & the second heir are living at
the time of the death of the testator.
(781a)
Elements of Fideicommissary Substitution (121-
22)
1. A 1st heir (fiduciary/fiduciario) who
takes the property upon the testator’s
death
 Refers to the fiduciary who enters upon
the inheritance, like every other heir, upon
the opening of the succession (i.e., when
the testator dies)
2. A 2nd heir (fideicommissary
heir/Jideicomisario) who takes the
property subsequently from the fiduciary
 The fideicommissary heir does not receive
the property until the fiduciary’s right
expires.
 NOTE: Both heirs enter into the
inheritance, one after the other, each in
his own turn. This distinguishes the
fideicomisaria from the vulgar, in which
the substitute inherits only if the first heir
fails to inherit.
 NOTE: Though the fideicommissary heir
does not receive the property upon the
testator’s death, his right thereto vests at
that time and merely becomes subject to
a period, and that right passes to his own
heirs should he die before the fiduciary’s
right expires
3. The 2nd heir must be 1 degree from the
1st heir
 Refers to the relationship – has to be
within first degree of fiduciary (i.e., child
or parent)
4. The dual (2) obligation imposed upon
the fiduciary to (1) preserve the property
and to (2) transmit it after the lapse of the
period to the fideicommissary heir
5. Both (2) heirs must be living & qualified
to succeed at the time of the testator’s
death
 Must be met ONLY at the testator’s
death; applies not only to the fiduciary
but to the 2nd heir as well.
 The 2nd heir MUST survive the 1st heir.
 If the 2nd heir dies before the 1st heir, the
2nd heir’s own heirs merely take his
place.
CASE: PALACIOS V. RAMIREZ
Facts: Jose died with only his widow, Marcelle, as
his compulsory heir. In his will, he gave
properties to Marcelle, his grandnephews, & his
lover, Wanda. Wanda was the fiduciary of the
nephews in the enjoyment of a usufruct. The
nephews challenged the partitioning,
particularly in favor of Wanda, for being void
because of violating the “one degree” rule,
since they, the fideicommissary heirs, are not
related to Wanda (the instituted fiduciary). Is
this correct?
Held: YES. The substitution shall not go beyond
one degree “from the heir originally instituted.”
The Code thus clearly indicates that the second
heir must be related to & be one generation
from the first heir.
From this, it follows that the fideicommissary
can only be either a child or a parent of the first
heir. These are the only relatives who are one
generation or degree from the fiduciary.
There is thus no absolute duty on the part of
Wanda to substitute herself in favor of the
nephews.
CASE: VDA. DE ARAÑAS V. ARAÑAS
Facts: The testator instituted Vicente, a beloved
nephew, as the first heir, to be replaced
subsequently by her brothers. Valid?
Held: YES.
Balane: Why? It’s because this is not a
fideicommissary substitution, technically. In the
will, Vicente was not given the obligation to
preserve the property & transmit it to the 2nd
heir, a silence which negates the existence of a
fideicommissary substitution.
Essential Requisites of Fiduciaries
(1) Preserve the property
(2) Transmit the property
Important Rules for Fiduciaries
A fiduciary (1st heir) acquires nothing more than
the usufructuary rights over the same half;
ownership belongs to the fideicommissary
CASE: CRISOLOGO V. SINGSON
Facts: Leona died. In dispute is whether or not a
clause in her will was a vulgar or
fideicommissary substituted. The clause
provided that Manuel & Consolacion would both
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enjoy the property, & upon the death of
Consolacion, whether before or after the
testator’s death, the property would be
delivered directly to Manuel & the other
brothers.
Held: It is SIMPLE substitution. It is the essence
of fideicommissary substitution that an
obligation be clearly imposed upon the first heir
to preserve & transmit the property to another,
upon his death or the happening of a particular
event. That is why such a substitution has no
effect unless it is made expressly, either by (1)
giving it such name or (2) imposing upon the
first heir an absolute obligation to deliver the
inheritance to the substitute
The quote from the will shows that the
substitution was not of a clear fideicommissary
kind; it merely provides for the transfer of the
property after he death.
CASE: PCIB V. ESCOLIN
Facts: Linnie died. In her will, she gave her
husband, Charles, the reminder of her estate for
her husband’s natural lifetime; he can sell the
property and exercise all rights of ownership
over it, but when he dies, he must turn over
whatever is left of Linnie’s estate to her siblings.
The will stated that the property would be given
to Linnie’s siblings in the event that Charles
died. How can you characterize this type of
institution?
Held: Linnie’s siblings are simultaneously
instituted alongside Charles, rather than
fideicommissary heirs or heirs under a typical,
simple will.
When another heir is designated to inherit upon
the death of a first heir, the second designation
can have effect only in case the first instituted
heir dies before the testator, whether or not that
was the true intention of said testator. Since
Charles did not die before Linnie, a simple
substitution for the siblings is void.
BUT this is not a plain simple substitution or a
fideicommissary one; it is simultaneous. The
brothers and sisters of Linnie are not substitutes
for Charles because, under her will, they are not
to inherit what Charles cannot, would not or
may not inherit, but what he would not dispose
of from his inheritance; rather, therefore, they
are also heirs instituted simultaneously with
Charles, subject, however to certain conditions,
partially resolutory insofar as Charles was
concerned and correspondingly suspensive with
reference to his brothers and sisters-in-law. It is
partially resolutory, since it bequeaths unto
Charles the whole of her estate to be owned and
enjoyed by him as universal and sole heir with
absolute dominion over them only during his
lifetime, which means that while he could
completely and absolutely dispose of any
portion thereof inter vivos to anyone other than
himself, he was not free to do so mortis causa,
and all his rights to what might remain upon his
death would cease entirely upon the occurrence
of that contingency, inasmuch as the right of his
brothers and sisters-in-law to the inheritance,
although vested already upon the death of
Linnie, would automatically become operative
upon the occurrence of the death of Charles in
the event of actual existence of any remainder
of her estate then.
Contrary to the view of respondents, however, it
was not the usufruct alone of Linnie’s estate, as
contemplated in Art. 869, thatshe bequeathed
to Hodges during his lifetime, but thefull
ownership thereof, although the same was to
last also during his lifetime only, even as there
was no restriction whatsoever against his
disposing or conveying the whole or any portion
thereof to anybody other than himself. The
Court sees no legal impediment to this kind of
institution, in this jurisdiction or under Philippine
law, except that it cannot apply to the legitime
ofCharles as the surviving spouse, consisting of
1/2of the estate, considering that Linnie had no
surviving ascendants nor descendants.
Summary of Tenure of Fiduciary
 Primarily rule – the period indicated by the
testator (which may not exceed 20 years)
 Secondary rule – if the testator did not
indicate a period, then the fiduciary’s
lifetime
Q: In his will, Manuel instituted Narda as his sole
heir, with the obligation to preserve property &
transmit it to her first child after her death. At
the time, Narda was only 12 years old. When
Manuel died, however, Narda was already 20 &
5 months pregnant with her first child. Is there
fideicommissary substitution in this case? Why
or why not?
A: There is a fideicommissary substitution. A
fideicommissary substitution by virtue of which
a first heir or fiduciary is entrusted with the
obligation to preserve the property & transmit
the same to the 2 nd heir the whole or part of the
inheritance shall be valid provided that the
substitution does not go beyond one degree
from the heir originally instituted, & provided
that both the 1st & 2nd heir are alive at the time
of the testator’s death. In this case, all
requisites are met. Narda, the 1st heir, had the
obligation to keep & preserve the property until
her death, at which time the property would be
given by her to the 2 nd heir, her child. Though
her child was not yet born at the time of
Manuel’s death, the Civil Code provides that an
unborn child shall be considered born for all
intents & purposes favorable to it. The child was
thus already considered alive at this time.
Q: In his last will, Andres instituted Rodolfo as
his sole heir to his properties, with full authority
to sell the same, & in the event of Rodolfo’s
death, the remainder of his estate to go to his
friends, Jesus, Mary & Joseph.
 Q1: Is this fideicommissary substation?
Why or why not?
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 A1: There is no fideicommissary
substitution. In a fideicommissary
substitution, the primary obligation of the
fiduciary or 1st heir is to preserve & keep
the property for the 2nd heirs. In this case,
the 1st heir, Rodolfo, was already granted
full authority to sell Andres’ properties.
There is thus no fideicommissary
substitution.
 Q2: Can Jesus, Mary & Joseph claim the
balance after Rodolfo’s death? Why or
why not?
 A2: Yes, Jesus, Mary, & Joseph may claim
the balance after Rodolfo’s death.
According to jurisprudence, the lack of an
absolute obligation to preserve & transmit
the inheritance to a 2nd heir does not
render such institution of heirs void. There
is simply no fideicommissary substitution;
there is, instead, simultaneous institution
(as seen in PCIB v. Escolin). Rodolfo has
the full right of ownership over the
property during his lifetime, with the
condition that, should some of the
property remain when he dies, such
remainder will automatically pertain to
Jesus, Mary & Joseph.
Article 864. A fideicommissary substitution
can never burden the legitime. (782a)
Article 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 those which arise from
legitimate expenses, credits, & improvements,
save in the case where the testator has
provided otherwise. (783)
Express Fideicommissary Substitution
(1) Use of the term fideicommissary, or
(2) Imposing upon the 1st heir the absolute
obligation to preserve & transmit to the 2nd heir
Allowable Deductions
GR: The fiduciary should deliver the property
intact & undiminished to the fideicommissary
heir upon the arrival of the period.
EXC: Only ff. deductions are allowed –
1. Legitimate expenses
 Necessary & useful expenses
 NOT ornamental expenses
2. Credits
3. Improvements
Damage or Deterioration to Property
 If caused by fortuitous event or ordinary
wear & tear – fiduciary is not liable
 If caused by fiduciary’s fault or negligence
– fiduciary is liable
Q: A executed a will instituting B as heir, with C
as substitute.
Q1: If B and C are first cousins, is the
substitution valid or not?
A: Yes, the substitution is valid. The substitution
in the case is a simple one, that is, the
institution of an heir in default of another heir.
The substitution is not a fideicommissary
substitution, in which the 2nd heir
(fideicommissary) must be a relative within one
degree of the 1st heir (fiduciary). For the
foregoing reasons, the substitution is valid.
Q2: If B should die after A, can C claim the
inheritance?
A: NO. C cannot claim the inheritance. Simple
substitution takes place upon the ff. grounds:
(1) Where the 1st heir predeceases the
testator,
(2) Where the 1st heir renounces the
inheritance, &
(3) Where the 1st heir is incapacitated to
succeed.
The case at bar does not contemplate any of
the above listed grounds. Therefore, C cannot
inherit that which was disposed of by the
testator A. Since B (1st heir) died after the
testator A, at the moment of the testator’s
death, the inheritance passed by testamentary
succession to B. It is submitted that B’s heirs
are the ones who can validly claim the
inheritance.
Article 866. The second heir shall acquire a
right to the succession from the time of the
testator's death, even though he should die
before the fiduciary. The right of the second
heir shall pass to his heirs. (784)
Implication of Art. 866
 The 2nd heir’s rights vest upon the
testator’s death
 The 2nd heir does not have to survive the
first heir in order for the substitution to be
effective; the 2nd heirs own heirs simply
take his place, and succeed to the vested
right already possessed by the 2nd heir
Q: A executed a will in which she bequeathed a
house in Baguio to B, with the obligation to pass
it on upon her death, free from all liens and
encumbrance, to her daughter. Would the
substitution be valid if:
Q1: The daughter is born two years after the
death of B?
A: No, the substitution is not valid. As a
fideicommissary substitution, it is not valid
because the fiduciary and the fideicommissary
must both have the capacity to succeed at the
time of the testator’s death. Since the daughter
was not even yet conceived at the time of the
testator’s death, she had no legal capacity to
succeed thereat. Thus, the substitution is not
valid.
Q2: The daughter is born before the death of A
but dies ahead of B?
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A: Yes, the substitution is valid. The daughter as
fideicommissary has a vested right to the
inheritance upon the moment of the testator’s
death. The fideicommissary need not outlive the
fiduciary. Thus, the daughter became a
fideicommissary heir upon the death of the
testator A, but since she (the daughter) died
before the fiduciary B, it is her (the daughter)’s
heirs who will succeed upon the death of the
fiduciary B.
Article 867. The following shall not take
effect:
(EPPI)
(1) Fideicommissary substitutions which are not
made in an Express manner, either by
(5) Giving them this name, or
(6) Imposing upon the fiduciary the
absolute obligation to deliver the
property to a second heir;
(2) Provisions which contain a Perpetual
prohibition to alienate, & even a temporary
one, beyond the limit fixed in Art. 863;
(3) Those which impose upon the heir the
charge of Paying to various persons
successively, beyond the limit prescribed in
Art. 863, a certain income or pension;
(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
secret Instructions communicated to him by
the testator. (785a)
(1) No Express Stipulation
This does not lead to the nullification of the
institution; it just means it’s not fideicommissary
(2) Limits to Substitution
 Fideicommissary substitution – the 1st heir’s
lifetime
 No fideicommissary – 20 years
(3) Limit as to Beneficiaries
 There can only be 2 beneficiaries of the
pension, one after the other
 The 2nd must be 1 degree from the first
 BUT: There is no prohibition against
simultaneous beneficiaries
(4) Dummy
The substitute heir is only a dummy; the one
who benefits is the one to whom the secret
instructions refer. This makes the entire
provision VOID.
Article 868. The nullity of the fideicommissary
substitution does not prejudice the validity of
the institution of the heirs first designated; the
fideicommissary clause shall simply be
considered as not written. (786)
What Happens if the Fidecommissary
Substitution is Void or Ineffective?
It will be like it was not written.

What Happens if the Clause on the Fiduciary is
Declared Void?
The article provides no answer. But Balane
believes that the nullity or inefficacy of the
institution of the fiduciary should not nullify the
institution of the fideicommissary heir; instead,
the right should become absolute & effective.
Article 869. A provision whereby the testator
leaves to a person the whole or part of the
inheritance, & to another the usufruct, shall be
valid. If he gives the usufruct to various
persons, not simultaneously, but successively,
the provisions of Art. 863 shall apply. (787a)
Successive Usufructuaries
If the testator institutes successive
usufructuaries, there can only be 2 of them one
after the other. As to the 2 of them, all requisites
of Art. 863 must be present.
Article 870. The dispositions of the testator
declaring all or part of the estate inalienable
for more than 20 years are void. (n)
Fideicommissary Substitution
If there is fideicommissary substitution, this
provision will not apply. Art. 863 (i.e., lifetime of
the 1st heir) will govern the period.
CASE: Vda. de Arañas v. Arañas
Facts: When Vda. de Arañas died, she divided
her properties to her siblings, but left a specific
portion for the usufruct of her beloved nephew,
stating that after his death, the properties can
be turned over to her brothers. Her brothers
claimed that the nephew had already been
enjoying the property for 20 years; thus, he
already had to turn it over. Is this correct?
Held: NO. This is a fideicommissary substitution,
which will not rely on the 20-year prescription
period. A fiduciary can hold on to the property
until the end of his life, & is not subject to the
20-year limitation.
SECTION 4.
Conditional Testamentary Dispositions &
Testamentary Dispositions With a Term
GENERAL PROVISIONS
Article 871. The institution of an heir may be
made
 Conditionally, or
 For a certain purpose or cause. (790a)
Three Kinds of Testamentary Dispositions in this
Section
1. Conditional dispositions
2. Dispositions with a term
3. Dispositions with a mode (modal
dispositions)
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Definitions
1. Condition – makes the performance of an
obligation dependent upon a future or
uncertain event, or upon a past event
unknown to the parties (Art. 1179, par. 1)
2. Term – makes the performance of an
obligation dependent on a day certain
which has been fixed (Art. 1193)
 A day certain is understood to be
that which must necessarily come,
although it may not be known when.
3. Mode – Art. 882
 The statement of the object of the
institution, or the application of the
property left by the testator, or the
charge imposed by him, shall not be
considered as a condition unless it
appears that such was his intention.
 That which has been left in this
manner may be claimed at once
provided that the instituted heir or
his heirs give security for
compliance with the wishes of the
testator & for the return of anything
he or they may receive, together
with its fruits & interests, if he or
they should disregard this
obligation.
Why Testators Can Place Conditions, Terms or
Modes on their Wills
Testamentary freedom gives the testator the
right to dispose his estate according to his will.
Article 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. (813a)
CONDITIONS
Article 873. Impossible conditions & those
contrary to law or good customs shall be
considered as not imposed & shall in no
manner prejudice the heir, even if the testator
should otherwise provide. (792a)
Effect of Impossible Conditions
The testamentary disposition itself will not be
annulled; instead, it will be considered pure or
unconditional.
 Same rule in donations – they are similar
because they are both gratuitous &
liberality is the basis of the grant
 Different in obligations – impossible
conditions in obligations shall annul the
obligation; consistent with onerous nature
of obligations
Case:
Facts: The will of Joseph stated –
"Although by law I am a Turkish
citizen...having resided for a
 considerable length of time in the
Philippines where I succeeded in
acquiring all of the property that I now
possess, it is my wish that the
distribution of my property, my will, be
made and disposed of in accordance
with the laws in force in the Philippines,
requesting all of my relatives to respect
this wish; otherwise, I annul whatever
disposition found in this will favorable to
the person/s who fail to comply with this
request."
Does this will contain a condition?
Held: YES. The institution in this will is
conditional, & the condition is that the instituted
legatees must respect the testator's will to
distribute his property, not in accordance with
the laws of his nationality, but in accordance
with the laws of the Philippines. However, the
SC held that this condition is void, being
contrary to law, for Art. 792 provides,
"Impossible conditions and those contrary to law
shall be considered as not imposed and shall not
prejudice the heir or legatee in any manner
whatsoever, even should the testator otherwise
provide." And said condition is contrary to law
because it expressly ignores the testator's
national law, according to Art. 10
("Nevertheless, legal and testamentary
successions, in respect to the order of
succession as well as to the amount of the
successional rights & the intrinsic validity of
their provisions, shall be regulated by the
national law of the person whose succession is
in question, whatever may be the nature of the
property or the country in which it may be
situated."). Thus, the condition is considered
unwritten, & the institution of legatees is
unconditional & valid, even as to Andre (who
opposed on the ground that Turkish laws apply).
All of the remaining clauses are valid.
Article 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
o By the deceased spouse, or
o 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. (793a)
Conditions Prohibiting Marriage
A. General Rule
 If a 1st marriage is prohibited – condition is
always considered not imposed
 If a subsequent marriage is prohibited –
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o If imposed by the deceased spouse
or his or her ascendants or
descendants – valid
o If imposed by anyone else –
considered not written
B. Usufruct, Allowance or Personal Prestation
 This is technically a way to bypass the 1 st
par., but it should not be so worded to
constitute the prohibition under par. 1
 Can apply to 1st or subsequent marriages
C. Condition to Marry
 The Art. does not prohibit the imposition
of a condition to marry (either with
reference to a particular person or not)
D. Relative Prohibitions
 The provision does not declare void a
relative prohibition
Q: Can the will of the testator state that his
daughter cannot marry a Japanese man, or that
she cannot marry a man younger than her for 5
years or more?
A: If the daughter violates the condition, the
other heirs may file suit against her to get her
share back; she may also be required to post a
bond or security to ensure compliance.
Q: A institutes his daughter B as his sole heir,
provided that she will never marry a lawyer. Is
the condition valid or not?
A: Yes, the condition is valid. It is in the nature
of a relative prohibition. What the Civil Code
proscribes is an absolute prohibition to contract
a first marriage, unless made by the widower or
widow.
Article 875. Any disposition made upon the
condition that the heir shall make some
provision in his will in favor of the testator or of
any other person shall be void. (794a)
Scriptura Captatoria (Legacy-Hunting
Dispositions)
Legacy-hunting dispositions, whether to heirs or
legatees, are void.
Reasons for Prohibition
1. It converts testamentary grants into
contractual transactions;
2. It deprives the heir of testamentary
freedom;
3. It gives the testator the power to dispose
mortis causa not only of his property but
also of his heir’s.
What is Declared Void
The testamentary disposition which contains the
disposition is void
 NOT JUST the condition
What if the Testamentary Disposition Requires a
Donation Intervivos in Favor of the Testator or a
Third Person?
Balane thinks this should still be prohibited.
Q: What is meant by Scriptura Captatoria? return of the value of property,
A: Scriptura Captatoria refers to a legacyhunting fruits, & interests, in case of
disposition, that is, a testamentary disposition contravention
made in favor of another in consideration of
such heir executing a testamentary disposition Q: In what instances is Caucion Muciana
in favor of the testator or a 3rd person. The required?
same is void the whole disposition and not just A: Caucion Muciana (the security to guarantee
the condition. compliance with obligations, the contravention
of which would give rise to an obligation to
Article 876. Any purely potestative condition return the fruits and proceeds of the disposition)
imposed upon an heir must be fulfilled by him is required in:
as soon as he learns of the testator's death. 1. Ensuring compliance with negative
This rule shall not apply when the condition, potestative conditions (Art. 879);
already complied with, cannot be fulfilled 2. Testamentary dispositions with a
again. (795a) suspensive term (Art. 885); &
3. Ensuring compliance with modal
Article 879. If the potestative condition obligations (Art. 882).
imposed upon the heir is negative, or consists
in not doing or not giving something, he shall Article 877. If the condition is casual or
comply by giving a security – mixed, it shall be sufficient if it happen or be
 That he will not do or give that which has fulfilled at any time before or after the death of
been prohibited by the testator, & the testator,
 That in case of contravention he will  UNLESS he has provided otherwise.
return whatever he may have received, Should it have existed or should it have been
together with its fruits & interests. (800a) fulfilled at the time the will was executed & the
testator was unaware thereof, it shall be
Article 883, par. 2. If the person interested in deemed as complied with.
the condition should prevent its fulfillment, If he had knowledge thereof, the condition shall
without the fault of the heir, the condition shall be considered fulfilled only when it is of such a
be deemed to have been complied with. nature that it can no longer exist or be
complied with again. (796)
Potestative, Causal & Mixed Conditions
 Potestative Condition – one that depends Article 883, par. 2. If the person interested in
solely on the will of the heir, legatee or the condition should prevent its fulfillment,
devisee without the fault of the heir, the condition shall
 Causal Condition – one that depends on be deemed to have been complied with.
the will of a third person or on chance
 Mixed Condition – one that depends partly Rules for Causal or Mixed Conditions (Art. 877)
on the will of the heir, devisee or legatee  GR: May be fulfilled at any time before or
& partly on the will of either a third person after the testator’s death
or chance  EXC: The testator otherwise provides
 Qualifications
Rules for Potestative Conditions o If already fulfilled at the time of the
 Positive (Art. 876) execution of the will –
General Must be fulfilled as soon as If the Deemed fulfilled
Rule the heir learns of the testator is
testator’s death unaware of
Exception 1. If the condition was the fact of
already complied with fulfillment
at the time the heir If testator is Depends –
learns of the testator’s aware 1.If it can no
death & thereof longer be
2. If the condition is of fulfilled again –
such a nature that it deemed fulfilled
cannot be fulfilled again 2.If it can be
Effect of Condition is deemed fulfilled again –
Constructi fulfilled must be fulfilled
ve again
Complianc
e  Constructive Compliance (Art. 883, par. 2)
o If causal – not applicable
 Negative (Art. 879) o If mixed –
o The heir must give security to If dependent Not applicable
guarantee (caucion muciana) the partly on
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 chance
If dependent 1.If third party is an Article 878. A disposition with a suspensive
partly on the interested party – term does not prevent the instituted heir from
will of a 3rd applicable  Acquiring his rights &
party 2.If third party is  Transmitting them to his heirs even
not an interested before the arrival of the term. (799a)
party – not
applicable When Heir’s Right Vests When There is a Term
In dispositions with a term, the heir’s right vests
Article 880. If the heir be instituted under a upon the testator’s death.
suspensive condition or term, the estate shall  IF the heir dies before the arrival of the
be placed under administration until – suspensive term, he merely transmits his
 The condition is fulfilled, or right to his own heirs who can demand the
 It becomes certain that it cannot be property when the term arrives.
fulfilled, or  Rule is similar to Art. 866
 The arrival of the term. (fideicommissary substitutions)
The same shall be done if the heir does not
give the security required in the preceding Rule on Conditional Institutions
article. (801a)  The law is silent.
 But see: Art. 1034, par. 3 – If the
What Happens to the Property institution, devise, or legacy should be
Between the time of the testator’s death & the conditional, the time of the compliance
time of the fulfillment of the suspensive with the condition shall also be
condition or certainty of its non-occurrence – considered.
placed under administration o What do we get from this provision?
 If condition happens – property is turned Their should be both living &
over to the instituted heir qualified to succeed both:
 If it becomes certain the condition will 1. At the time of the testator’s
not happen – the property will be turned death &
over to 2. At the time of the happening
o A secondary heir, if there is one, of the condition.
or
o The intestate heir Article 885. The designation of the day or
time when the effects of the institution of an
Not Applicable to Institutions with a Term heir shall commence or cease shall be valid.
The above does not apply to institutions with a In both cases, the legal heir shall be considered
term, despite the wording of the Art. as called to the succession until the arrival of
the period or [from] its expiration. But in the
Second Par. of Art. 880 first case he shall not enter into possession of
The property will be in the executor’s or the property until after having given sufficient
administrator’s custody until the heir furnishes security, with the intervention of the instituted
the caucion muciana. heir. (805)

Article 881. The appointment of the If the Term is Suspensive

administrator of the estate mentioned in the
preceding article, as well as the manner of the
administration & the rights & obligations of the
administrator shall be governed by the Rules of
Court. (804a)
Rules Governing Appointment of Administrator
This would be Rules 77-90, Revised Rules of
Court.
Article 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.
(791a)
Civil Code Provisions
Refer to Art. 1179-1192.
TERMS
Before the arrival of the term, the property
should be delivered to the intestate heirs.
 A Caucion Muciana has to be posted.
If the Term is Resolutory
Before the arrival of the term, the property
should be delivered to the instituted heir.
 No Caucion Muciana is required.
Q: Who has possession of the property if there is
a suspensive term or condition?
A: In a suspensive condition, the property is
placed under administration and not placed with
the intestate heirs. But if the property is subject
to a suspensive term, the property can be given
to the intestate heirs, and when they return the
property, they give it to the rightful heir.
Q: If the condition or term is resolutory, who
gets the property at the death of the testator?

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A: The heir acquires it upon death.
MODES
Article 882. The statement of –
 The object of the institution, or
 The application of the property left by the
testator, or
 The charge imposed by him,
shall NOT be considered as a condition unless it
appears that such was his intention.
That which has been left in this manner may be
claimed at once
 PROVIDED that the instituted heir or his
heirs give security
o For compliance with the wishes of
the testator &
o For the return of anything he or
they may receive, together with its
fruits & interests, if he or they
should disregard this obligation.
(797a)
What’s a Mode?
A mode is an obligation imposed upon the heir,
without suspending (as a condition does) the
effectivity of an institution.
 A mode must clearly be imposed as an
obligation in order to be considered as
one. Mere preferences or wishes
expressed by the testator are not
modes.
 A mode functions like a resolutory
condition.
What is Stated by the Testator in Modal
Institutions
1. The object of the institution;
2. The purpose or application of the property
left by the testator, or
3. The charge imposed by the testator upon
the heir.
CASE: RABADILLA V. CA
Facts: Jorge was instituted as a devisee of a
parcel of land in Bacolod. In the codicil wrote,
the decedent stated that, should he die & Jorge
receive the property, Jorge shall have the
obligation to give Maria 75 piculs of export
sugar until the day Maria dies. Jorge’s heir,
according to the codicil, would be subject to the
same obligation. It even stated that, should the
property be transferred to another (via sale,
lease, or mortgage), the transferee would have
the same obligation. Otherwise, the codicil
continued, Maria would have the right to seize
the property & turn the property over to the
decedent’s nearest descendants.
Jorge died & was survived by his wife & kids,
one of them being Johnny, the petitioner. The
property was mortgaged to two banks. Neither
the heirs nor the banks, however, delivered
sugar to Maria.
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Maria, the woman mentioned in the codicil,
instituted an action to enforce the provisions of
the codicil. Was the institution modal?
Held: YES. The institution was modal, as
opposed to conditional.
1. A “mode” imposes an obligation upon
the heir or legatee but it does not affect
the efficacy of his rights to the
succession. On the other hand, in a
conditional testamentary disposition,
the condition must happen or be fulfilled
in order for the heir to be entitled to
succeed the testator. The condition
suspends but does not obligate; & the
mode obligates but does not suspend.
To some extent, it is similar to a
resolutory condition.
2. From the provisions of the Codicil
litigated upon, it can be gleaned that
the testatrix intended that subject
property be inherited by Jorge. It is
likewise clear that the testatrix imposed
an obligation on Jorge & his successors-
in-interest to deliver sugar to Maria,
during the lifetime of the latter.
However, the testatrix did not make
Jorge’s inheritance & the effectivity of
his institution as a devisee dependent
on the performance of the said
obligation. It is clear, though, that
should the obligation be not complied
with, the property shall be turned over
to the testatrix’s near descendants. The
manner of institution of Jorge under
subject Codicil is evidently modal in
nature because it imposes a charge
upon the instituted heir without,
however, affecting the efficacy of such
institution.
Q: What is the meaning of the phrase “a
condition suspends but does not oblige, while a
mode obliges but does not suspend”?
A: A modal institution institutes the heir
immediately (it does not suspend), subject only
to the resolutory condition of fulfillment of the
modal obligation, if clearly intended. If the heir
is obliged to comply with the mode, his
institution is taken away.
On the other hand, a condition can either be
casual, potestative, or mixed. Casual conditions
are up to a 3rd party’s action or the happening of
an event which the heir cannot control. There is
no obligation in a casual condition. A
potestative condition is dependent on the sole
will of the heir the heir may or may not do it,
thus there is also no obligation in such a
condition. In both cases, as well as in the case
of a mixed condition, the institution is
suspended, and is only effective if the
conditions are fulfilled.
In conditional institutions, the heir MAY fulfill;
the condition (potestative) or wait (casual) in
order to be instituted, while in modal
institutions, the heir HAS TO comply with the
mode (an obligation) in order not to lose the
inheritance to which he is instituted.
Article 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. (798a)
 Are not excluded by those in Nos. 1 &
2;
 Neither do they exclude one another.
In all cases of illegitimate children, their
filiation must be duly proved.
The father or mother of illegitimate children of
the three classes mentioned, shall inherit from
them in the manner & to the extent established
by this Code. (807a)

SECTION 5. Legitime Three Types of Compulsory Heirs

(1) Primary compulsory heirs — legitimate
*Article 886. Legitime is that part of the children &/or descendants (No. 1)
testator’s property which he cannot dispose of a. They are so called because they are
because the law has reserved it for certain heirs preferred over, & exclude, the
who are, therefore, called compulsory heirs. secondary.
(806) (2) Secondary compulsory heirs — legitimate
parents &/or ascendants; illegitimate
System of Legitimes parents (No. 2)
The successional system reserves a portion of a. They receive legitimes only in default
the net estate of the decedent in favor of of the primary.
certain heirs, or groups of heirs, or combination Legitimate Only in default of
of heirs. parents or legitimate
 The portion reserved is the legitime ascendants children or
 These heirs are called compulsory heirs descendants
o The compulsion is not on the part of Illegitimate Only in default of
the heirs (who are free to accept or parents any kind of
reject the inheritance) but on the children or
part of the testator. descendants
 The portion left available for testamentary
disposition after the legitimes have been (3) Concurring compulsory heirs — surviving
covered is the free or disposable portion spouse; illegitimate children &/or
descendants (No. 3, 4, 5)
Testator Cannot Gratuitously Dispose of  They succeed as compulsory heirs
Legitime together with primary or secondary
The testator is prohibited from disposing by heirs
gratuitous title (via inter vivos or mortis causa)  EXCEPT: Illegitimate children or
of these legitimes. descendants exclude illegitimate
 Onerous dispositions are allowed parents
o When the disposition is for valuable
consideration, there is no diminution Widows or Widowers in the Old Civil Code
of the estate but merely a Widows & widowers only got usufructuary rights
substitution of values, i.e., the in the old Civil Code; now, they may inherit.
property sold is replaced by the
equivalent monetary consideration. Compulsory Heirs
1. Legitimate children
Q: Why does the law step in and put a limit to (1) Arts. 164 & 54 of the Family Code
what a testator may dispose of? (2) Legitimated children (Art. 179)
A: The limitation is set up for the benefit of (3) Adopted children in relation to adopters
those who are compulsory heirs. 2. Legitimate descendants
 GR: The nearer exclude the more remote
*Article 887. The ff. are compulsory heirs: o Children, if all qualified, will exclude
(1) Legitimate children & descendants, with grandchildren, & so on.
respect to their legitimate parents & o The qualification to this rule is
ascendants; representation (succession per
(2) In default of the foregoing, legitimate stirpes), when proper.
parents & ascendants, with respect to their 3. Legitimate parents
legitimate children & descendants;
(3) The widow or widower; 14 Art. 287. Illegitimate children other than natural in
(4) Acknowledged natural children, & natural accordance with Art. 269 & other than natural children by
legal fiction are entitled to support & such successional rights
children by legal fiction; as are granted in this Code. (n)
(5) Other illegitimate children referred to in Art. Art. 269. Only natural children can be legitimated. Children
287.14 born outside wedlock of parents who, at the time of the
Compulsory heirs mentioned in Nos. 3, 4, & 5 conception of the former, were not disqualified by any
impediment to marry each other, are natural. (119a)
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  Includes the adopter, who replaces the O CASE: LAPUZ V. EUFEMIO
legitimate parents  Facts: Carmen found out
4. Legitimate ascendants her husband was
 Only in default of parents cohabiting with another
 Absolute in the ascending line — the
nearer exclude the more remote
5. Surviving spouse
 Refers to the spouse of the decedent
 NOT the spouse of a child who
predeceased the decedent
 CASE: ROSALES V. ROSALES
o Facts: Irenea is the daughter-in-law
of deceased Petra. She claims that
she should get a share in her
capacity as the surviving spouse of
Irenea’s late son, Carterio. Is her
claim cavlid?
o Held: NO. Intestate or legal heirs are
classified into 2 groups, namely,
those who inherit by their right, &
those who inherit by the right of
representation. An intestate heir can
only inherit either by his own right,
as in the order of intestate
succession provided for in the Civil
woman abroad, among
Case, or by the right of
others. She filed an action
representation in Art.981 of the
for legal separation.
same law. There is no provision in
However, she died in a car
the Civil Code which states that a
accident pending the suit.
widow (surviving spouse) is an
Her husband filed a
intestate heir of her mother-in-law. If
motion to dismiss. Will it
the legislature intended to make the
prosper?
surviving spouse an intestate heir of
 Held: YES. The right to the
the parent-in-law, it would have so
dissolution of the conjugal
provided. It is Irenea’s son,
partnership of gains (or of
Macikequerox, who has a right of
the absolute community),
representation as to his father. He
as well as the revocation
will be succeeding on behalf of his
of testamentary provisions
father, from his grandmother, Petra.
in favor of the offending
He thus succeeds from Petra, & not
spouse made by the
his father.
innocent one, are all rights
 Marriage should be either valid or
and disabilities that are
voidable
vested exclusively in the
o If voidable, there should have
persons of the spouses;
been no final decree of annulment and by their nature and
at the time of the decedent’s intent, such claims and
death disabilities are difficult to
o If the spouse dies before the conceive as assignable or
voidability of the marriage is transmissible.
confirmed, the court may still o The legal separation case is
proceed to determine whether or dismissed whether it is the
not the marriage was actually offending or innocent spouse
voidable (Cariño v. Cariño) who dies.
 Mere estrangement is not a ground for 6. Illegitimate children
the disqualification of the surviving  There are no longer distinctions as to
spouse as heir types of illegitimate children because of
 Effect of decree of legal separation the Family Code.
o On the offending spouse –  If the death of the decedent occurred
disqualification before the effectivity of the Family Code
o On the innocent spouse – (Aug. 3, 1988), the old distinctions apply
nothing & a spurious child will get only 4/5 of the
 Death of either spouse during the share of a natural one
pendency of a legal separation case
results in dismissal
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  The representation of legitimate v. one child – surviving
illegitimate children spouse*
Legitimate Children Illegitimate
Children *Share of the
Can be represented Can be represented surviving spouse is
only be legitimate by both legitimate preferred over the
descendants & illegitimate share of the
descendants illegitimate children,
7. Illegitimate descendants so that the latter’s
 The nearer exclude the more remote, may be reduced when
without prejudice to the right of necessary.
representation when proper One legitimate ½ of the estate -
8. Illegitimate parents children, illegitimate legitimate child
 Unlike the legitimate ascending line, children & surviving
which includes ascendants of whatever spouse (Art. 895) ½ of the share of each
degree, the illegitimate ascending line is legitimate child –
ONLY for parents illegitimate
 Illegitimate parents are secondary heirs of
a lower category to legitimate parents, ¼ of the estate –
because the illegitimate parents are surviving spouse*
excluded by BOTH legitimate &
illegitimate children *Share of the
surviving spouse is
General Rule of Legitimary Portions preferred over the
There is always a basic ½ quota given to one share of the
heir or group of heirs. illegitimate children,
 EXCEPTIONS: so that the latter’s
o Art. 894 – surviving spouse & may be reduced when
necessary.
illegitimate children
o Art. 900, par. 2 – surviving spouse in Legitimate parents ½ of the estate
alone (Art. 889)
a marriage articulo mortis, with the
conditions specified in the Art. Legitimate parents & ½ of the estate –
o Art. 903 – surviving spouse & illegitimate children legitimate parents
(Art. 896) ¼ of the estate –
illegitimate parents
illegitimate children
The Clavano Diagram: Legitime Edition Legitimate parents & ½ of the estate –
surviving spouse (Art. legitimate parents
Variations in the Legitimary Portions 893) ¼ of the estate –
surviving spouse
Compulsory Heirs Share of Estate
Legitimate parents, ½ of the estate –
Legitimate children ½ of the estate
illegitimate children & legitimate parents
alone (Art. 888) divided equally
surviving spouse (Art. ¼ of the estate –
Legitimate children & ½ - legitimate children
899) illegitimate children
surviving spouse (Art. Share equal to that of
1/8 of the estate –
892, par. 2) one child – surviving
surviving spouse
spouse
Surviving spouse ½ of the estate
One legitimate child & ½ of the estate -
alone (Art. 900)
one surviving spouse legitimate child
OR
(Art. 892, par. 1) ¼ of the estate - ALONE:
spouse 1. LC – ½ of the estate 1/3 of the estate if the
Legitimate children & ½ of the estate 2. LP – ½ of the estate marriage is in articulo
illegitimate children divided equally -
(Art. 176, Family legitimate children 3. IC – ½ of the estate mortis
Surviving spouse & 1/3 of the estate –
Code) ½ of share of 4. IP – ½ of thechildren
illegitimate
estate
surviving spouse
legitimate child – 5. 894)
(Art. 1/3
SS – ½ or 1/3 of the estate of theon estate
(depending Art. 900) –
illegitimate children
illegitimate children
Legitimate children, ½ of the estate ONLY CONCURRING:
Surviving spouse & ¼ of the estate –
illegitimate children & divided equally - 1. SS + IC – 1/3parents
illegitimate of the estate
surviving spouse
surviving spouse (Art. legitimate children
895) 2. SS + IP – ¼ of the estate¼ of the estate –
(Art. 903)
illegitimate parents
½ of the share of each SYMBOLS:
Illegitimate children ½ of the estate
legitimate child –
illegitimate
 (Art.
alone 901) Spouse
SS – Surviving

 IC – Illegitimate
Illegitimate parents
Child ½ of the estate
alone (Art. 903)
Share equal to that of  LC – Legitimate Child
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Note: If the legitime given to ICs exceed the value of the
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Can Adopted Children Inherit from Biological
Parents? (Two Views)
1. YES – In order for this right to exist, a
provision of law must grant it (but the
present Family Code does not)
 The new law intends to sever all ties
between the adopted & biological
family
2. NO – The repealing clause of the new law
does not explicitly repeal the provision in
the old law, which gave the adopted child
the right to adopt from both biological &
adoptive parents
Inclusions to Terms
 “Legitimate child” – in proper cases,
includes legitimate descendants other
than children
 “Legitimate parents” – In proper cases,
includes legitimate ascendants other than
parents
CASE: BARITUA V. CA
Facts: Bienvenido died in an accident where his
tricycle was hit by a bus. His wife, Alicia, from
whom he had been estranged from, entered into
an extrajudicial settlement with the bus
company & its insurer, waiving all future claims.
Bienvenido’s parents, however, filed a complaint
for damages against the bus company & its
insurer, claiming that they had paid for their
son’s funeral expenses & that they were the
ones who bought the tricycle damaged by the
accident. Will the action prosper?
Held: NO. Obligations are extinguished by
various modes, including payment. 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. As it has been established
that Bienvenido was married to Alicia & that
they begot a child, the parents are not
Bienvenido’s compulsory heirs. The petitioners
therefore acted correctly in settling their
obligation with Alicia as the widow of Bienvenido
& as the natural guardian of their lone child.
This is so even if Alicia had been estranged from
Bienvenido. Mere estrangement is not a legal
ground for the disqualification of a surviving
spouse as an heir of the deceased spouse.
CASE: DE APARICIO V. PARAGUYA
Facts: Consolacion is the child of Trinidad (who
married Anastacio) & a priest, Fr. Lumain. Fr.
Lumain, in his last will, acknowledged
Consolacion as his daughter & instituted her as
the sole & universal heir of all his property
rights. Consolacion maintains that she is
entitled to inherit Fr. Lumain’s property on the
ground that she had been recognized as
daughter of the latter. Parugaya maintains that
Consolacion is not entitled to inherit for the
reason that she is an adulterous child. Does
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Consolacion have a right to inherit Fr. Lumain’s
property?
Held: YES. Trinidad was single on the date
Consolacion was conceived. It is a legal
presumption that Consolacion is the daughter of
Trinidad & Anastacio, but this presumption is
disputable & was successfully overcome by
Trinidad. The SC declares that Consolacion is a
natural child of Fr. Lumain & that she was
acknowledged by the latter as his own child.
Even in the remote possibility that Consolacion
is not a natural child of Fr. Lumain, Consolacion
is under the will entitled to claim the disputed
property, she having been instituted as
universal heir.
HOWEVER, Consolacion cannot inherit the
property of Fr. Lumain's brother Macario, since
under Art. 943 of old Civil Code, "A natural or a
legitimated child has no right to succeed ab
intestato the legitimate children and relatives of
the father or mother who has acknowledged it;
nor shall such children or relatives so inherit
from the natural or legitimated child."
Thus, Consolacion and Macario became co-
owners of the properties left by Fr. Lumain's &
Macario's parents; Consolacion owns 1/2 and
the other 1/2 belongs to the heirs of Macario.
The SC also did not rule on the contention that
Consolacion was a legitimate child; since Fr.
Lumain died without any compulsory heir, he
was free to dispose by will of all his estate in
favor of any person having capacity to succeed,
i.e., Consolacion.
Q: What if the testator has a wife and children,
what will their shares be of an inheritance of
P1,000,000?
A: Each one, wife & 4 children, will receive
P125,000. The children will get half of the estate
& divide this among themselves; this means
they will divide among the 4 of them, giving
them each P125,000 from P500,000. Meanwhile,
the wife will get a share of the estate equal to
the children – thus, she will also get P125,000
from the remaining free portion of the estate.
Q: What if all children (who already have their
own children, numbering 8) renounce their
inheritance; who will get the legitime?
A: Since there is a renunciation, there will be no
right of representation. However, all the
grandchildren may inherit the legitime in their
own right. In a P1,000,000 inheritance, each
grandchild will get P62,500.
Q: There are 5 legitimate children & 2
illegitimate children, the estate being
P1,000,000 in total. What is the legitime of each
child?
A: The legitime for the legitimate children will be
P500,000, giving them each P100,000.
Meanwhile, each illegitimate child will get ½ of
what each legitimate child gets. Thus, each
illegitimate child gets P50,000.
Q: Supposed that instead of 2 illegitimate
children, the testator has 4 illegitimate children,
with 5 legitimate children; how is it divided
amongst them now?
A: Each illegitimate child can still get P50,000, &
each legitimate child P100,000.
Q: Is it possible, after giving shares to
compulsory heirs, that there is no more free
portion left?
A: YES. It is possible that dividing amongst the
compulsory heirs, there will no longer be a free
portion at all.
Q: If the spouse has more illegitimate kids than
he can give free portions to, what happens? For
example, there are 12 illegitimate children, and
10 legitimate children. Who will it be given to?
A: The legitimate children will get the P500,000
as mandated by law. Meanwhile, each of the
illegitimate children will just get less than ½ of
the share given to the legitimate children. In
other words, the legitimate children will be
prioritized.
Q: What if the mother’s grandmother is dead;
how will P1,000,000 be divided?
A: The deceased father’s parents get P250,000
collectively (& each will get P125,000), while the
mother’s sole remaining parent will get the total
P250,000. This is because the division will be by
line (the mother’s line & the father’s line).
Q: What if the testator is an illegitimate child?
A: If the testator is an illegitimate child & the
parents survive alone, the parents get ½ of the
estate.
Q: If the parents predecease the illegitimate
child, may the ascendants claim?
A: NO. The law provides that only legitimate
parents may claim; the law does not speak of
ascendants when it speaks of illegitimate
children.
Q: If the testator has an illegitimate child, may
the parents of the testator inherit?
A: The parents will inherit; only the legitimate
child can bar the parents from inheriting.
Q: What if the testator is the illegitimate child of
his father, and at the time of his death, he has
illegitimate children on his own? Is the
inheritance of the ascendants barred?
A: It will not be barred. Only legitimate children
bar. Illegitimate children concur with
ascendants.
Q: Can the legitimate son of my illegitimate son
represent him in inheriting from?
A: YES.
Q: Can his legitimate son represent him?
A: If they’re both illegitimate they can.
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Q: If your illegitimate son has a legitimate son,
will you be barred?
A: Yes.
Q: Suppose my son has an illegitimate son, who
has a son of his own. Can the illegitimate son
represent him?
A: Yes. An illegitimate son can be represented
by an illegitimate son. But a legitimate son can
only be represented by a legitimate son, and not
illegitimate sons.
Thus, there are two points of differences
between legitimate and illegitimate children.
The legitimate father can be barred only by a
legitimate grandson. He cannot be barred by an
illegitimate son.
The illegitimate parent is barred by an
illegitimate son.
In the right of representation, the legitimate
parent may only be represented by his
legitimate son. But the illegitimate son may be
represented by either illegitimate or illegitimate
sons.
Q: If the legitimate children survive alone, how
much is their legitime?
A: ½ of the estate.
Q: If the legitimate parents survive alone, what
is their legitime?
A: ½ of the estate.
Q: If the illegitimate children survive alone, what
is their legitime?
A: ½ of the estate.
Q: If the spouse survives alone, what is the rule?
A: As a general rule, they will get ½. But there
are exceptions; the spouse may only get 1/3 if –
1. The marriage was made in articulo
mortis
2. Testator dies within 3 months
3. They have not cohabited for 5 years
Q: What is meant by marriage articulo mortis?
A: Marriage in a life or death situation, as
enumerated in the Family Code. An example
would be in a warzone, or the plane is about to
crash, & the husband & wife get married before
the final crash.
Another example is where one of them is
suffering from a fatal sickness.
Q: What if the testator dies 3 months & 1 day
after? How much will the surviving spouse
receive?
A: ½ instead of 1/3.
Q: What if the testator & the spouse cohabit for
5 years?
A: ½ instead of 1/3 will be given.
Article 888. The legitime of legitimate
children and descendants consists of ½ of the
hereditary estate of the father & of the mother.
The latter may freely dispose of the remaining
half, subject to the rights of illegitimate
children & of the surviving spouse as
hereinafter provided. (808a)
Sharing in Equal Parts
 The legitimate children share the ½ in
equal parts, regardless of age, sex, or
marriage of origin
Descendants Other than Children
 GR: The nearer exclude the more remote
 Grandchildren cannot inherit, since the
children will bar them
o UNLESS: all the children renounce;
in that case, the grandchildren
become the nearest in degree
 This rule goes down the line to great
grandchildren, etc.
 There is no limit on those who may be
called to succeed down the descending
line, whether this be by right or by
representation
Q: The testator has 4 children. Each of his 4
children have 2 grandchildren. When the
testator dies, who will get the inheritance?
A: The children will get the inheritance, not the
grandchildren (i.e., the descendants). Those
who are nearer are favored & exclude the
further heirs.
Q: Supposed that the oldest child predeceases
the testator. Can the children of this oldest child
inherit, given that there are 3 other kids?
A: The children of the oldest child have a right of
representation. They may represent their parent
in the distribution of the testator’s estate.
Q: Suppose that the 3rd child renounces his
share the estate. Can his children inherit from
the testator?
A: NO. Renunciation cannot lead to the right of
representation.
Q4: Supposed each grandchild also has children.
Can the children of the grandchildren inherit in
the presence of the other heirs?
A: NO. The nearer heirs exclude the later heirs.
Q5: What about if the grandchildren die?
A: They inherit by the right of representation,
but not by their own merit. The result is that
they cannot divide the legitime between
themselves equally.
Q6: How far down can you go through
representation?
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A: There is no limit; the only limit there is
human mortality.
Q7: What about in the Philippine culture, where
we have the inaanak? Does the inaanak inherit
as a compulsory heir?
A: NO. They are not part of the enumeration in
the Civil Code. They are not necessarily blood
relatives of the testator either.
Q8: What about in a situation where X & Y, a
married couple, find a pregnant woman, take
her child & register the woman’s child as their
own. Does this make the child a compulsory heir
of X & Y?
A: The child will likely not be a compulsory heir
of the testator, unless the child is X’s child (the
illegitimacy of whom he must prove).
Q9: What if the child & the parent of the testator
survive the testator, who inherits?
A: Only the child. The child is preferred by the
law & the parent inherits only when the testator
has no child.
Article 889. The legitime of legitimate parents
or ascendants consists of ½ of the hereditary
estates of their children & descendants.
The children or descendants may freely dispose
of the other half, subject to the rights of
illegitimate children & of the surviving spouse
as hereinafter provided. (809a)
Article 890. The legitime reserved for the
legitimate parents shall be divided between
them equally; if one of the parents should have
died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother,
but is survived by ascendants of equal degree
of the paternal & maternal lines, the legitime
shall be divided equally between both lines. If
the ascendants should be of different degrees,
it shall pertain entirely to the ones nearest in
degree of either line. (810)
Legitimate Parents or Ascendants are
Secondary Compulsory Heirs
 The legitimate ascending line succeeds
only in DEFAULT of the legitimate
descending line
3 Rules for Succession by the Ascending Line
1. The nearer exclude the more remote – no
qualification in the ascending line, since
there is no right of representation in the
ascending line
2. Division by line – This applies if there is
more than one ascendant in the nearest
degree
 The legitime shall be divided in
equal parts between the paternal &
maternal line
3. Equal division within the line – After the
portion corresponding to the line has been
 assigned, there will be equal
apportionment between or among
recipients in the line, should there be
more than one
Illustrative Example
Should X (the decedent) die without legitimate
descendants & be survived by three
grandparents as his nearest ascendants—A & B
(paternal grandparents) & C (maternal
grandmother-the legitime of 1/2 will be divided
equally between the paternal and the maternal
line.
Since there are two heirs in the paternal line,
the paternal line portion will be shared equally
by the two; and since there is only one in the
maternal line, she gets the entire allotment for
the maternal line.
Result: A and B get 1/8 each of the estate; C
gets 1/4 of the estate.
Q: How about the parents; parents, they are the
ascendants. When are they entitled to
legitimes?
A: ONLY when there are no legitimate
descendants.
Q: What if there is an illegitimate descendant?
A: The illegitimate descendant will become
concurring compulsory heirs side by side with
the legitimate ascendants (i.e., parents).
Q: If the heirs are the father & the mother & the
estate is P1,000,000, how would you divide the
legitime among them?
A: The parents will get ½ of the estate –
P500,000. Each parent will get P250,000.
Q: Let’s say that there is a father & mother, but
the grandparents of the father & mother are all
alive. What happens?
A: There is no right of representation in the
direct ascending line.
Q: Supposing that the testator’s mother has
died; only the father & the grandparents live
(the mom’s parents are still alive). Who gets the
legitime?
A: ONLY the father. The nearer is favored. Thus,
only the father will inherit ½ of the estate of the
testator.
Q: What if the dad & mom die but the parents of
the parents (i.e., the grandparents) are still
alive. How will the inheritance work out?
A: The grandparents will inherit instead. They
will be divided by line, so that ½ goes to the
paternal side & ½ to the maternal side.
Article 892. If only one legitimate child or
descendant of the deceased survives, the
widow or widower shall be entitled to ¼ of the
hereditary estate. In case of a legal separation,
the surviving spouse may inherit if it was the
deceased who had given cause for the same.
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If there are two or more legitimate children or
descendants, the surviving spouse shall be
entitled to a portion equal to the legitime of
each of the legitimate children or descendants.
In both cases, the legitime of the surviving
spouse shall be taken from the portion that can
be freely disposed of by the testator. (834a)
Share of One Legitimate Child/Surviving Spouse
 1 legitimate child – ½ of the estate
 Surviving spouse – ¼ of the estate
Effect of Legal Separation (Family Code)
 Deceased is offending spouse in legal
separation – surviving spouse gets
legitime
 Deceased is the innocent spouse – the
offending spouse is disqualified from
inheriting
 If there was reconciliation after decree -
the reciprocal right to succeed is restored
 Death pending litigation - The proceeding
terminates & surviving spouse inherits
(regardless of innocence or guilt)
Termination of Marriage by Reappearance of
Prior Spouse/Decree of Annulment or Absolute
Nullity
 Art. 41-43, Family Code - The
reappearance of the prior spouse
terminates the 2nd marriage
o The spouse who contracted the
subsequent marriage in bad faith is
disqualified to inherit from the
innocent spouse by (1) testate & (2)
intestate succession
o If both persons in the 2nd marriage
got together in good faith, they
continue to be heirs of one another
o If only one acted in bad faith, the
innocent one continues to be the
heir of the other
 Problem which may arise - A & B are
husband & wife. A disappears & after the
required period B complies with all the
requirements of the Family Code on the
matter & then marries C. Both B & C are in
good faith. Subsequently, A reappears,
causing the termination of the B-C
marriage. Under Article 43(5) the
reciprocal right of succession between B &
C remains; on the other hand, A (the
rightful spouse) & B are also heirs of each
other. B then dies. Are A & C both entitled
to a legitime from B?
 The same problem in judicially annulled
marriages or marriages declared void
under Art. 40 & 45.
Legitimate Children/Surviving Spouse
 Children collectively get ½ of the estate
 The surviving spouse gets a share
equivalent to each of the legitimate
children or descendants
  How share is computed – ½ of the legitime of each of the legitimate
Condition & Share of Share of children or descendants.
Share of Grandchildren Surviving The legitime of an illegitimate child who is
Descendants Spouse neither an acknowledged natural, nor a natural
If there is at Grandchildren Spouse will child by legal fiction, shall be equal in every
least 1 will not get a get same case to 4/5 of the legitime of an acknowledged
surviving child share; the share as natural child.
out of many nearer exclude that child The legitime of the illegitimate children shall be
kids the more taken from the portion of the estate at the free
remote disposal of the testator, provided that in no
If all children All the The spouse case shall the total legitime of such illegitimate
either – grandchildren will get a children exceed that free portion, & that the
1. Predecease will inherit via share as if legitime of the surviving spouse must first be
2. Are right of a child fully satisfied. (840a)
disinherited representation, were still
3. Are & in different alive Article 896. Illegitimate children who may
unworthy to amounts survive with legitimate parents or ascendants
succeed & of the deceased shall be entitled to ¼ of the
hereditary estate to be taken from the portion
If all the Grandchildren Debatable; at the free disposal of the testator. (841a)
children would inherit could be
renounce per capita, & same share Illegitimate Children/Legitimate Parents
therefore, as the  ½ for the parents collectively (Art. 889-
equally grandchildr 890)
en, or a  ¼ for the illegitimate children collectively
share as if (effectivity of Family Code is an issue)
a child
survived Article 897. When the widow or widower
survives with legitimate children or
Article 893. If the testator leaves no descendants, & acknowledged natural children,
legitimate descendants, but leaves legitimate or natural children by legal fiction, such
ascendants, the surviving spouse shall have a surviving spouse shall be entitled to a portion
right to ¼ of the hereditary estate. equal to the legitime of each of the legitimate
This fourth shall be taken from the free portion children which must be taken from that part of
of the estate. (836a) the estate which the testator can freely dispose
of. (n)
Share of Legitimate Parents/Spouse
 ¼ of the estate – surviving spouse Article 898. If the widow or widower survives
 ½ of the estate – for the ascendants, with legitimate children or descendants, & with
collectively (in accordance with Art. 889- illegitimate children other than acknowledged
890) natural, or natural children by legal fiction, the
share of the surviving spouse shall be the same
Article 894. If the testator leaves illegitimate as that provided in the preceding article. (n)
children, the surviving spouse shall be entitled
to 1/3 of the hereditary estate of the deceased Article 899. When the widow or widower
& the illegitimate children to another 1/3. The survives with legitimate parents or ascendants
remaining 1/3 shall be at the free disposal of & with illegitimate children, such surviving
the testator. (n) spouse shall be entitled to 1/8 of the hereditary
estate of the deceased which must be taken
Share of Illegitimate Children/Surviving Spouse from the free portion, & the illegitimate
 1/3 to the illegitimate kids collectively children shall be entitled to 1/4 of the estate
 1/3 to the surviving spouse which shall be taken also from the disposable
portion. The testator may freely dispose of the
Sharing Among Illegitimate Children remaining 1/8 of the estate. (n)
 If decedent died during effectivity of the
new Family Code – sharing will be equal Legitimate Parents/Surviving
 If decedent died before the effectivity of Spouse/Illegitimate Children
the new Family Code  Legitimate parents & ascendants – ½
o Spurious child – 4/5 of the share of collectively
the natural child  Illegitimate children or descendants – ¼
collectively
Article 895. The legitime of each of the  Surviving spouse – 1/8
acknowledged natural children & each of the
natural children by legal fiction shall consist of Article 900. If the only survivor is the widow
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or widower, she or he shall be entitled to ½ of
the hereditary estate of the deceased spouse,
& the testator may freely dispose of the other
half. (837a)
If the marriage between the surviving spouse &
the testator was solemnized in articulo mortis,
& the testator died within three months from
the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-
third of the hereditary estate, except when
they have been living as husband and wife for
more than 5 years. In the latter case, the
legitime of the surviving spouse shall be that
specified in the preceding paragraph. (n)
Article 903. The legitime of the parents who
have an illegitimate child, when such child
leaves neither legitimate descendants, nor a
surviving spouse, nor illegitimate children, is ½
of the hereditary estate of such illegitimate
child. If only legitimate or illegitimate children
are left, the parents are not entitled to any
legitime whatsoever. If only the widow or
widower survives with parents of the
illegitimate child, the legitime of the parents is
¼ of the hereditary estate of the child, & that
of the surviving spouse also ¼ of the estate.
(n)

Surviving Spouse as Sole Compulsory Heir Illegitimate Parents Alone

GR: ½ of the estate
EXC: 1/3 of the estate, if the ff. is present: (AS-
35)
1. The marriage was in Articulo mortis
2. The Spouse who died was the party in
articulo mortis at the time of the marriage
3. The testator died within 3 months from
the time of marriage
4. The parties did not cohabit for more than
5 years
Article 901. When the testator dies leaving
illegitimate children and no other compulsory
heirs, such illegitimate children shall have a
right to one-half of the hereditary estate of the
deceased.
The other half shall be at the free disposal of
the testator. (842a)
Illegitimate Children Alone
 Illegitimate children get ½ collectively
Article 902. The rights of illegitimate children
set forth in the preceding articles are
transmitted upon their death to their
descendants, whether legitimate or
illegitimate. (843a)
 Illegitimate parents – they get ½ of the
estate
 BUT in the illegitimate ascending line, the
right does not go beyond the parents
Illegitimate Parents/Surviving Spouse
 ¼ for the parents collectively
 ¼ for the spouse
 NOTE: Whereas legitimate parents are
excluded only by legitimate heirs,
illegitimate parents are excluded by all
types of children, legitimate or illegitimate
Article 891. The ascendant who inherits from
his descendant any property which the latter
may have acquired by gratuitous title
 From another ascendant, or
 [From] a brother or sister,
is obliged to reserve such property as he may
have acquired by operation of law for the
benefit of relatives who are
 Within the third degree &
 Who belong to the line from which said
property came. (871)
RESERVA TRONCAL

Right of Representation to Descendants Origin Reservista

Decedent Right of Effect
Representation
Illegitimate Both legitimate & Descendant (1) (2)
children (IC) illegitimate s of IC have (3)
descendants broader
Legitimate Only legitimate rights of Prepositus
children (LC) descendants (Art. representati 3rd degree
relatives of
992) on than LC
Prepositus on
the side of
Application of Art. 902 Origin
Reservatarios
 Applies to legitime
 Applies to intestacy

Illustrative Example Important Persons in Reserva Troncal Set-Up

 An illegitimate child of a predeceased  Origin – the ascendant or brother or sister
legitimate child cannot inherit by from whom the property was inherited by
representation the descendant
 BUT an illegitimate child of an illegitimate
child can
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  Prepositus – the descendant who dies
without issue after inheriting from the
Origin
 Reservista or Reserver – the ascendant
who inherits from the Prepositus after the
latter dies & who has the duty to reserve
the property in favor of the Reservatarios
 Reservatarios or Reservees – the persons
who will inherit the property from the
Reservista, who must be within the third
degree & belong to the same line as the
Prepositus in relation to the Origin
Purpose of Reserva Troncal
It is a special rule designed primarily to assure
the return of the reservable property to the 3 rd
degree relatives belonging to the line from
which the property originally came, & to avoid
its being dissipated by the relatives of the
inheriting ascendant (Reservista).
Requisites for Application of Reserva Troncal
1. That the property was acquired by a
descendant from an ascendant or from a
brother or sister by gratuitous title;
 Acquisition is by gratuitous title
when “the recipient does not give
anything in return,” including
transmissions by donation or by
succession (of whatever kind).
2. That said descendant died without a
[legitimate] issue;
 ONLY legitimate descendants will
prevent the property from being
inherited by the legitimate
ascending line by operation of law.
3. That the property is inherited by another
ascendant by operation of law; &
 Limited to intestacy, NOT
testamentary succession
4. That there are relatives within the 3 rd
degree belonging to the line from which
said property came.
Other Names Given to Reserva Troncal
 Lineal
 Familiar
 Extraordinaria
 Semi-troncal
 Pseudo-troncal
Process of Transmission
1. First transfer — by gratuitous title, from a
person to his descendant, brother or
sister.
2. Second transfer — by operation of law
(intestate), from the transferee in the first
transfer to another ascendant.
 It is this second transfer that
creates the reserva
3. Third transfer — from the transferee in the
second transfer to the relatives
(reservatarios)
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Q: If the Origin is a brother or sister, how can
there be a separate line, when the brother or
sister will belong to the same line as the sibling
prepositus who receives the line?
A: There could be half-blood brothers & sisters
because there could be 2 different lines.
Q: Supposing that the prepositus receives a
property from a half-brother who is the
illegitimate son of his father. Is there reserva
troncal situation?
A: NO. Only a legitimate child can prevent
property from being inherited by the legitimate
ascending line by operation of law.
Q: Supposing the property concerned was a gift
given by the uncle to the prepositus. Will there
be reserva troncal?
A: NO. Uncles & aunts are not considered as
ascendants within the meaning of the law when
one speaks of reserva troncal. Those included
are only parents & grandparents; collaterals are
not included. But recall that brothers & sisters
are also included.
Q: Does reserva troncal come into existence
from the transfer of the property from the Origin
to the Prepositus?
A: NO. Reserva troncal only begins at the time
from the transfer of the Prepositus to the
ascendant, the Reservista, following the
Prepositus’ death without issue.
Q: What is the meaning of the comment of one
of the legal luminaries that the Prepositus is the
arbiter of the reserver?
A: It is like saying the Prepositus is the middle
man.
Q: What are the Prepositus’ rights when it
comes to the property?
A: He has full ownership rights. He may sell the
property, etc. since there is no reserva troncal
yet.
Q: What if the Prepositus sells the property &
gives the cash to the ascendant?
A: The Prepositus no longer “activates” reserva
troncal, so to speak, because it should be the
same property which transfers.
Q: What are the other acts by which there will
no longer be reserva troncal?
A: Partition or if he bequeaths it by will to some
other relative or his ascendant by means of will.
This prevents reserva troncal from happening,
since the transfer to the Reservista to the
Prepositus must be by operation of law, not by
will, by donation, or some other means.
Q: What if the mother receives the property by
way of legitime; is this considered a reserva
troncal situation?
A: NO. Besides, the transfer to the mother may
be partly by will & partly by operation of law.
By operation of law means that is ONLY by
means of intestacy or legal succession.
Q: What else can the Prepositus do to prevent
the creation of a reserva troncal situation?
A: He can alienate the property. He can give it to
his mom by will. He can give it to other relatives
by will. He could also decide to marry or have a
legitimate child. The primary heir will be the
child, & not the ascendant. By having the child,
the Prepositus prevents reserva troncal from
taking effect.
Q: Why is the Prepositus thus called an arbiter?
A: It’s up to him whether or not reserva troncal
applies.
Q: When the property reaches the hands of the
Reservista, what are the rights of the
Reservista?
A: He has the obligation to preserve the
property.
Q: Is the Reservista merely a usufructuary over
the property?
A: NO. He does have ownership over the
property, subject to the resolutory condition
that, should he die, & there are living
reservatorios at the time of the Reservista’s
death, the property will pass to the former.
Q: What happens if the Reservista sells the
property?
A: The property should be annotated so that it is
stated that the property will be subject to
reserva troncal.
Q: What if there is no annotation in the title?
How is the buyer to know if it is subject to
reserva troncal or not?
A: Even if the Reservista is unable to annotate
the title, it will become the buyer’s duty to
annotate it. They cannot claim they did not
know of the duty.
Q: How about the reservatorios? Who are they?
A: They are the relatives within the 3 rd degree of
the Prepositus in the same line to whom the
property belongs.
Q: Who would these 3rd degree relatives be?
A: The brothers or sisters of the origin or
anything closer than that, such as a brother or
sister of the Prepositus.
Q: Who are the relatives of the Prepositus within
the first degree?
A: The father or mother (children should be
included, but then he would not have a
legitimate son or daughter).
Brothers & sisters are within the 2 nd civil degree,
alongside the grandfather.
Aunts & uncles would be 3rd civil degree.
First cousins are NO LONGER INCLUDED, since
they are of the 4th civil degree.
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Q: Must the reservatorios be alive when the
Prepositus dies?
A: They only have to be in existence at the time
of the death of the Reservista. Whether they are
conceived or born at the time the Prepositus
dies is immaterial. It is the death of the
Reservista which is controlling.
Q: Supposing the Reservista has a daughter; can
the daughter claim that she has a right over the
property subject to reserva troncal?
A: NO.
Q: Supposing after the reservista dies, the
people left of the Prepositus are the uncles &
aunts & the brothers of the Prepositus. Between
them, who can claim the right to own?
A: The brothers. They cannot all claim to own
the property because the rules of intestate
succession apply when it comes to reserva
troncal. Those of the nearer degree exclude
those of the farther.
The reservatorios are a group of relatives within
the 3rd degree related to the propositus. BUT
within that group, their rights are determined by
the rules of intestate succession.
Q: Is the principle of right of representation
applicable in reserva troncal? For example, if
there nieces & nephews, the latter’s parents
having died, can the nieces & nephews
represent their parents & claim the application
of reserva troncal?
A: YES.
Q: What if the uncles or aunts died & only first
cousins remain, will there be reserva troncal?
A: NO, because they themselves are outside of
the limit & do not fall under the 3rd degree.
Q: Supposing that the prepositus has 2 houses,
one inherited from his father & another which
he built himself. Upon his death, the 2 houses
went to his mom. Will the 2 houses be subject to
reserva troncal?
A: Only the house received from the dad will be
covered.
Q: A son received from his mother P200,000 by
virtue of a will. The son had properties of his
own amounting to P400,000. When the son died
without issue, he left a will giving all his estate
(P600,000) to his father. How much is the
reservable property?
A: This is a case of testate succession. Since the
father’s legitime is only ½, he received the
P600,000 in two capacities: P300,000 as a
compulsory heir — & which was received
therefore as legitime or by operation of law; &
P300,000 as a voluntary heir, & therefore not by
operation of law. Now then:
 According to the theory of reserva
maxima, the reservable property is
P200,000. In other words, the reservable
 property includes all that can be included
in the half constituting the legitime of the
reservista.
 According to the theory of reserva
minima, the reservable property is only
P100,000. The theory is based on the fact
that half of the P200,000 received from
the origin (mother, in this case) was given
to the father as his legitime or by
operation of law. Therefore, the reservable
property is only P100,000.15
Q: What is preferred in our jurisdiction?
A: Reserva minima is preferred in our
jurisdiction.
CASE: SOLIVIO V. CA
Facts: Salusta was the mom of Esteban; upon
her death, she bequeathed all her properties to
him. During Esteban’s lifetime, he always told
his aunt Celedonia that he wanted to build a
foundation for his mom. Esteban then died
without any descendants. Celedonia now wants
to be made special administrator of properties
Salusta inherited from Esteban on the basis of
reserva troncal, being a 3rd degree relative of
Salusta. Does reserva troncal apply?
Held: NO. There was no ascendant to function as
a reservista. For there to be reserva troncal,
there must be a letter “V,” so to speak. In this
case, the property only transferred from Salusta
to Esteban, but was never passed on to another
ascendant, from Esteban. Esteban is just a
descendant of Salusta; he is not an ascendant
or reservista who is mandated by law to reserve
the property. As such, there is no reserva
troncal. Instead, Art. 1009 applies in this case.
Basic Rules of Reserva Troncal
1. No inquiry is to be made beyond the
Original/Mediate Source.
 It does not matter who the owner of the
property was before it was acquired by
the Origin.
2. All the relationships among the parties must
be legitimate.
The Origin or Mediate Source
 Ascendant – any degree of ascent
 Brother or sister – two opinions
o Opinion #1 - There is only reserva if
the relationship between brother &
sister is half-blood; otherwise, there
would be no changing in lines
passing to a common ascendant of
the Prepositus & sibling.
o Opinion #2 – It does not matter
whether the fraternal relationship is
of the full- or half-blood. Reserva
may arise either way.
When Reserva Arises
15 This example is taken from Paras.
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 While the property is still with the
Prepositus, there is no reserva yet
 The reserva only arises upon the 2 nd
transfer (from descendant without heirs
up to the ascendant)
 While the property is with the Prepositus,
he has all the rights of ownership over it &
may exercise such rights in order to
prevent a reserva from arising, such as –
1. By substituting or alienating the
property
2. By bequeathing or devising it
either to the potential reservista or
to 3rd persons (subject to the
constraints of the legitime)
3. By partitioning in such a way as to
assign the property to parties other
than the potential reservista (again
subject to the constraints of the
legitime)
Reservista
 An ascendant of the Prepositus, of
whatever degree
 OTHER THAN the Origin or Mediate Source
Illustrative Example
Q: A receives by donation a parcel of land from
his paternal grandfather, X. Upon A’s death, the
parcel passes by intestacy to his father, Y (X’s
son). The property never left the line. Is Y
obliged to reserve?
A: Depends who you ask!
 Reyes & Puno – No, because another
ascendant is one belonging to a line
other than that of the reservista
 Roman – Yes, because the law makes no
distinction & the purpose of reserva is
not only curative, but preventive
 SC – seems to be YES – In Carrillo v. De
la Paz, the property passed from the
mom to the son, and then, the grandma,
causing a reserva (but this was not the
lis mota of the case)
The Reservatarios
 The reserva is in favor of a class,
collectively referred to as the
reservatarios (reservees)
 Requirements:
1. He must be within the third degree
of consanguinity from the Prepositus
2. He must be alive at the time of the
reservista’s death
 He need not be alive when the
Prepositus dies
3. He must belong to the line from
which the property came
 To determine this, one must
determine the Origin/Mediate
Source
 If an ascendant or half-sibling –
paternal or maternal
  If a sibling – the question of line
doesn’t matter
 Must reservatarios be related to the
Mediate Source?
o One view – NO. Subdivisions do not
matter because the law speakers of
only two lines, paternal & maternal.
o One view – YES. Otherwise, the
result is contrary to the purpose of
reserva.
CASE: PADURA V. BALDOVINO
Facts: Agustin had two wives in his lifetime,
Gervacia & Benita. With Gervacia, he had
Manuel. With Benita, he had Fortunato &
Candelaria. When Agustin died, he bequeathed
his properties to his 3 kids & his surviving
spouse, Benita.
Fortunato, child of Benita, died unmarried &
without a will; the properties were thus inherited
by his mom. After, Candelaria also died, leaving
4 kids as her heirs. Then, Manuel also died, with
5 legitimate kids.
Benita died. How should the apportionment of
the reserva property (with Prepositus as
Agustin) go about, considering it is reserva
troncal property?
Held: The respective share of each in the
reversionary property should be governed by
the ordinary rules of intestate succession
(including the rules on proximity of degree &
right of representation; also, that full blood
siblings get twice the share of the half blood
siblings). Thus, those claiming their right from
half-sibling Manuel will only get half the share of
a full blood sibling.
1. Upon the death of the ascendant
reservista, the reservable property should
pass, not to all the reservatorios as a
class, but only to those nearest in degree
to the descendant (Prepositus), excluding
those reservatarios of more remote
degree.
2. Reserva troncal merely determines the
group of relatives (reservatarios) to whom
the property should be returned; but
within that group the individual right to
the property should be decided by the
applicable rules of ordinary intestate
succession, since Art. 891 does not
specify otherwise. This conclusion is
strengthened by the circumstance that
the reserva being an exceptional case, its
application should be limited to what is
strictly needed to accomplish the purpose
of the law.
3. Even during the reservista’s lifetime, the
reservatarios, who are the ultimate
acquirers of the property, can already
assert the right to prevent the reservista
from doing anything that might frustrate
their reversionary right; and for this
purpose they can compel the annotation
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of their right in the Registry of Property
even while the reservista is alive.
4. The reservable property is no part of the
estate of the reservista, who may not
dispose of them by will, so long as there
are reservatarios existing. The latter,
therefore, do not inherit from the
reservista, but from the descendant
prepositus, of whom the reservatarios are
the heirs mortis causa, subject of the
condition that they must survive the
reservista.
CASE: DE PAPA V. CAMACHO
Facts: Faustino died intestate and without issue,
leaving his 1/2 share in the 7 parcels of land to
his father Eustacio. Trinidad (Faustino's sister)
died intestate and her only legitimate child
Dalisay inherited; thus Dalisay, owned 1/2 of the
7 parcels of land as her inheritance from her
mother. Eustacio (Dalisay's maternal
grandfather; Trinidad's father) died intestate,
survived only by Dalisay. Thus, Dalisay is
claiming the other 1/2 by virtue of the reserva
troncal imposed thereon upon the death of
Faustino Dizon and under the laws on intestate
succession. However, her grandaunt and
granduncles oppose her claim, by virtue of their
being also 3rd degree relatives of Faustino
Dizon. Do the grandaunts & granduncles have a
right to complain?
Held: NO. Dalisay inherits the property. Relatives
of the prepositus within the 3rd degree in the
appropriate line DO NOT succeed without
distinction to the reservable property upon the
death of the reservista. Reversion of the
reservable property being governed by the rules
on intestate succession, the grandaunt &
granduncles must be held without any right
thereto because, as aunts & uncles of Faustino
(prepositus), they are excluded from succession
by his niece Dalisay, although they are related
to him within the same degree as the latter. In
case of intestacy, the Code provides that
nephews & nieces exclude all other collaterals
(aunts & uncles, first cousins, etc.) from
succession. Under the pertinent provisions,
brothers & sisters & nephews & nieces inherited
ab intestato ahead of the surviving spouse,
while other collaterals succeeded only after the
widower or widow.
Representation among the Reservatarios
 The rule of preference in degree among
reservatarios is qualified by the rule of
representation
CASE: FLORENTINO V. FLORENTINO
Facts: Apolonio & Severina had two kids,
Mercedes & Apolonio III. Apolonio already had 9
kids from his marriage with his 1st wife. When
Apolonio died, all of his 11 children succeeded
to the inheritance he left. Apolonio III was born
after Apolonio died, but was given, as his share,
the property subject of the controversy in this
case. Apolonio III died, & was succeeded by his
mom, Severina. She instituted her daughter,
Mercedes, as heir to the property.
Held: SC held that only the children of the 11
children have the right to represent their
parents & claim their parents’ rights as
reservatarios, taking into account that only
those who themselves can be considered within
the third degree may represent their ascendants
in a reserva troncal situation. Since 2 children
died without issue, the property will just be split
among the 9 children, some alive & some with
heirs within the third degree who can represent
them. Severina cannot bequeath the property,
by will, solely to her daughter Mercedes,
inasmuch as the property was not Severina’s
own & she only had the right of usufruct or
fiducaury, with the obligation to preserve &
deliver the same to the reservatarios, one of
them being her daughter, Mercedes.
1. Ascendants do not inherit the reservable
property, but its enjoyment, use or trust,
merely for the reason that said law
imposes the obligation to preserve same
for certain designated persons who, on
the death of the reservista, acquire the
ownership of said property by operation of
law in the same manner as forced heirs;
said property reverts to the reservatarios.
2. A reservista is nothing but a life
usufructuary or a fiduciary of the
reservable property received. He is,
however, the legitimate owner of his own
property which is not reservable property
and which constitutes his legitime,
according to Art. 809. But if, afterwards,
all of the relatives, within the third degree,
of the descendant (from whom came the
reservable property) die or disappear, the
property becomes free property, by
operation of law, & is converted into the
legitime of the ascendant heir who can
transmit it at his death to his legitimate
successors or testamentary.
3. The right of representation cannot be
alleged when the one claiming same as a
reservatario is not among the relatives
within the third degree belonging to the
line from which such property came,
inasmuch as the right granted by Art. 811
is in the highest degree personal and for
the exclusive benefit of designated
persons who are the relatives, within the
3rd degree, of the prepositus. Therefore,
relatives of the 4th and the succeeding
degrees can never be considered as
reservatarios, since the law does not
recognize them as such. There is only a
right of representation on the part of
reservatarios who are within the third
degree mentioned by law, as in the case
of nephews of the deceased person from
whom the reservable property came.
These reservatarios have the right to
represent their ascendants (fathers &
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mothers) who are the brothers of the
deceased & relatives within the third
degree in accordance with Art. 811.
One Instance of Representation Only
There will be only one instance of representation
among the reservatarios – a case of the
Prepositus being survived by siblings & children
of a predeceased or incapacitated sibling
Juridical Nature
Its juridical nature may be viewed from 2
aspects –
 That of the reservista
 That of the reservatarios
CASE: EDROSO V. SABIAN
Facts: Marcelina & Victoriano are married. They
had a son named Pedro. Pedro died unmarried &
without issue; thus, a property inherited from
Victoriano passed to Marcelina. Marcelina
applied to have the property registered under
her name. Two brothers of Victoriano opposed
the registration; they wanted the registration
either to be denied, or, if granted, their right to
the property should be recorded in the
certificate of registration. Who has the right to
have the property registered under his or her
name?
Held: Marcelina is entitled to register the
property in her own name, but she must also
record the right required by Art. 811 to be
reserved to either or both the brothers of
Victoriano, should they survive her.
1. The reservista cannot be considered just a
usufructuary & the reservatarios
immediately the owners.
2. The reservista who inherits from the
descendant, whether by the latter's wish
or by operation of law, acquires the
inheritance by virtue of a title perfectly
transferring absolute ownership. All the
attributes of the right of ownership belong
to him exclusively—use, enjoyment,
disposal & recovery. This absolute
ownership which is inherent in the
hereditary title, is not altered in the least,
if there be no reservatarios whence the
property proceeds or they die before the
reservista. If there should be relatives
within the 3rd degree who belong to the
line whence the property came, then a
limitation to that absolute ownership
would arise.
3. The possessor of property subject to
conditions subsequent that are still
pending may mortgage or alienate it,
provided always that he preserve the right
of the parties interested in said conditions
by expressly reserving the right in the
registration (Art. 109, Mortgage Law). The
reservatarios cannot impugn the validity
of such a transaction so long as the
reservista is alive, because it might easily
happen that the latter outlives the former.
 In such a case, the alienation would not
only be valid, but also absolute.
4. The reservista acquires the property with
a condition subsequent (i.e., whether or
not there exist at the time of his death
relatives within the 3rd degree of the
descendant from whom they Inherit in the
line whence the property proceeds). If
such relatives exist, they acquire
ownership of the property at the death of
the reservista. If they do not exist, the
reservista can freely dispose thereof. If
this is true, since the possessor of
property subject to conditions subsequent
can alienate & encumber it, the ascendant
may alienate the property required by law
to be reserved, but he will alienate what
he has & nothing more because no one
can give what does not belong to him, &
the acquirer will therefore receive a
limited and revocable title. The relatives
within the 3rd degree will in turn have an
expectation to the property while the
ascendant lives, an expectation that
cannot be transmitted to their heirs,
unless these are also within the 3rd
degree. After the reservista dies, the
relatives may rescind the alienation of the
reserva property & they will acquire it in
complete ownership.
5. While the reservista is still alive, the
reservatarios cannot claim to be the
owners of the property; if the latter
attempted to dispose of the property while
the reservista is alive, the sale would be
void. Furthermore, the reservatarios
cannot attack any dispositions made; such
a disposition is the equivalent of selling
the enjoyment to a usufruct. Thus, the
buyer will have bought the property under
a pacto de retro sale. Conventional
redemption takes place when the vendor
reserves to himself the right to recover
the thing sold with the obligation to
comply with Art. 1518, and whatever more
may have been agreed upon, that is, if he
recovers the thing sold by repaying the
vendee the price of the sale and other
expenses. Notwithstanding this condition
subsequent, the buyer may register his
title with the consent of the vendor. He
may alienate the thing bought when the
acquirer knows very well from the title
entered in the registry that he acquires a
title revocable after a fixed period, a thing
much more certain & to be expected than
the purely contingent expectation of the
person in whose favor is reserved a right
to inherit some day what another has
inherited.
Lessons from Edroso
1. The reservista’s right over the reserved
property is one of ownership.
2. The ownership is subject to a resolutory
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condition: the existence of reservatarios
at the time of the reservista’s death.
3. The right of ownership is alienable, but
subject to the same resolutory condition.
4. The reservista’s right of ownership is
registrable.
CASE: SIENES V. ESPARCIA
Facts: Saturnino, with Teresa his 1st wife, had 4
kids. He had one son, Francisco, with his 2 nd
wife, Andrea. When Saturnino died, each of his
children inherited a lot. Francisco, however,
predeceased his mother; thus, Francisco’s lot
was transferred to Andrea. Andrea, however,
executed an extrajudicial settlement & sale of
the property, selling the property to the buyers-
appellees. When the appellees asked the title of
the property from the future reservatarios,
Paulina & Cipriana (2 half-sisters of Francisco &
daughters of Saturnino), the latter refused &
sold the property to Sienes & Esparcia, who
declared the property as theirs for tax purposes.
Who has a better right over the reserva
property?
Held: Cipriana (& in turn, Sienes & Esparcia).
The sale made by Andrea in favor of appellees
was subject to the condition that the vendees
would definitely acquire ownership, by virtue of
the alienation, only if the vendor died without
being survived by any person entitled to the
reservable property. Inasmuch as when Andrea
died, Cipriano was still alive, the conclusion
becomes inescapable that the previous sale
made by the former in favor of appellants
became of no legal effect & the reservable
property subject matter thereof passed in
exclusive ownership to Cipriana.
On the other hand, it is also clear that the sale
executed by Paulina & Cipriana in favor of
Esparcia & Sienes was subject to a similar
condition. The reserva instituted by law in favor
of the heirs within the third degree belonging to
the line from which the reservable property
came, constitutes a real right which the
reservee may alienate and dispose of, albeit
conditionally, the condition being that the
alienation shall transfer ownership to the
vendee only if and when the reservee survives
the person obliged to reserve. In the present
case, Cipriana, one of the reservees, was still
alive when Andrea died. Thus the former
became the absolute owner of the reservable
property upon Andrea’s death. While it may be
true that the sale made by her & her sister prior
to this event, became effective because of the
occurrence of the condition, SC did not order
reversion of the property in question to the
Esparcia spouses, as the latter did not appeal
therefrom. It just held that the latter could file a
separate suit for reversion.
Lessons from Sienes
1. The reservatarios have a right of
 expectancy over the property.
2. The right is subject to a suspensive
condition, i.e., the expectancy ripens into
ownership if the reservatarios survive the
reservista.
3. The right is alienable, but subject to the
same suspensive condition.16
4. The right is registrable.
CASE: GONZALES V. CFI
Facts: Mrs. Legarda was a reservista of property.
She executed two handwritten identical
documents wherein she disposed of the reserva
properties which she inherited from her
daughter, in favor of the children of her sons,
Benito, Alejandro and Jose (sixteen
grandchildren in all). As a reservista, is Mrs.
Legarda allowed to do dictate how the reserva
property is divided and to whom it goes?
Held: NO. Reservistas cannot appoint, by will,
which reservatarios will get the reserved
property. Mrs. Legarda could not convey in her
holographic will to her sixteen grandchildren the
reservable properties which she had inherited
from her daughter Filomena because the
reservable properties did not form part of her
estate. The reservista cannot make a disposition
mortis causa of the reservable properties as
long as the reservatarios survived the
reservista. The reservees inherit the reservable
properties from the prepositus, not from the
reservor.
Art. 891 clearly indicates that the reservable
properties should be inherited by all the nearest
relatives within the third degree from the
prepositus who in this case are the six children
of Mrs. Legarda. She could not select the
reservatarios to whom the reservable property
should be given and deprive the others. To allow
the reservista in this case to make a
testamentary disposition of the reservable
properties in favor of the reservatarios in the
3rd degree and, consequently, to ignore those
in the 2nd degree would be a glaring violation of
Art. 891.
Kind of Property Reserved
Any! Even a sugar allotment (i.e., incorporeal
property) is reservable.
Effect of Substitution
The very same property must go through the
process of transmissions in order for the reserva
to arise. The self-same property must come
 From the Mediate Source,
 To the Prepositus by gratuitous title, &
 To the reservista by operation of law.
Thus, the Prepositus is the “arbiter of the
reserva” –
 If the Prepositus substitutes the property
by selling, bartering, or exchanging it, the
substitute cannot be reserved.
16 Sienes refers to the right as a resolutory condition, but
that is incorrect.
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 This is because while the property is with
the Prepositus, there is yet no reserva.
Reserva commences only when the
property is received by the reservista.
CASE: CANO V. DIRECTOR
Facts: Maria was the reservista of a property;
she died pending a cadastral proceeding
wherein the reserva property was supposed to
be registered under her name. Guerrero, the
reservee, filed a motion in the cadastral
proceedings to have the OCT cancelled & a new
one issued in his name. The sons of Maria
opposed, claiming that the application of
reserva troncal should be ventilated in an
ordinary contentious proceeding & that the
cadastral court did not have jurisdiction; there
would need to be a judicial administration
proceeding where the rights of Guerrero as
reservee have to be declared. The lower court
granted the petition & issued a new OCT in
favor of Guerrero. Was this correct?
Held: YES. The right of Guerrero as reservatario
had already been declared to exist by the
decree of registration wherein his rights were
expressly recognized. It was shown by
Guerrero’s petition that he was the nearest of
kin & could thus exclude all other oppositors.
The only requisites for the passing of the title
from the reservista to the appellee are: (1) the
death of the reservista; and (2) the fact that the
reservatario has survived the reservista. Both
facts are admitted, and their existence is
nowhere questioned.
The contention that an intestacy proceeding is
still necessary rests upon the assumption that
the reservatario will succeed in, or inherit, the
reservable property from the reservista. This is
not true. The reservatario is not the reservista's
successor mortis causa nor is the reservable
property part of the reservista's estate; the
reservatario receives the property as a
conditional heir of the descendant (prepositus),
said property merely reverting to the line of
origin from which it had temporarily strayed
during the reservista’s lifetime. There being
reservatarios that survive the reservista, the
latter must be deemed to have enjoyed no more
than a life interest in the reservable property.
It is a consequence of these principles that upon
the death of the reservista, the reservatario
nearest to the prepositus (the appellee in this
case) becomes, automatically and by operation
of law, the owner of the reservable property.
*Note: Where the registration decree merely
specifies the reservable character of the
property, without determining the identity of the
reservatarios or where several reservatarios
dispute the property among themselves, further
proceedings would be unavoidable. But this is
not the case. The rights of the Guerrero have
been recognized, and it is nowhere claimed that
there are other reservatarios of equal or nearer
degree. It isthus apparent that the heirs of the
reservista are merely endeavoring to prolong
their enjoyment of the reservable property.
Reserva Property Not Part of Reservista’s Estate
Since the reserved property is not computed as
part of the reservista’s estate, it is not taken
into account in determining the legitimes of the
reservista’s compulsory heirs.
Reserva Maxima-Reserva Minima
Solves the problem that arises when (1) the
Prepositus makes a will instituting the
ascendant-reservista to the whole or a part of
the free portion of his estate; & (2) there is left
in the Prepositus’ estate, upon his death, in
addition to the reserved property, property not
reservable.
 Reserva maxima - As much of the
potentially reservable property as possible
must be deemed included in the part that
passes by operation of law. This
“maximizes” the scope of the reserva.
 Reserva minima (more accepted here) -
Every single property in the Prepositus’
estate must be deemed to pass, partly by
will & partly by operation of law, in the
same proportion that the part given by
will bears to the part not so given.
Rights & Obligations of Parties under the Old
Law
The rights of the reservatarios (& the
corresponding duties of the reservistas) were –
1. To inventory the reserved properties;
2. To annotate the reservable character (if
registered immovables) in the Registry of
Deeds within 90 days from the
reservista’s acceptance;
3. To appraise the movables;
4. To secure by means of mortgage:
a. The indemnity for any deterioration
of or damage to the property
occasioned by the reservista’s fault
or negligence, &
b. The payment of the value of such
reserved movables as may have
been alienated by the reservista
onerously or gratuitously.
CASE: SUMAYA V. IAC
Facts: Consuelo, reservista, registered the
reserva property with the Register of Deeds, but
the TCTs stated that they were free from any
liens & encumbrances. Consuelo then executed
an affidavit of self-adjudication, which clearly
stated that she, the affiant, was a lone
ascendant & heir to Raul, who died leaving
properties previously inherited from other
ascendants. Consuelo sold the property to
Sumaya, who then sold it to Villa Honorio
Development Co. When Consuelo died, the
reservatarios (Raul's brothers in full blood, niece
& nephews) sought to recover the property,
which they claimed were subject to a reserva
troncal in their favor. Can the subsequent
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buyers claim good faith & thus evade the rights
of Raul’s relatives?
Held: NO. According to PD 1529, the registration
of the affidavit of the reservista was
constructive notice to the world, so that 3rd
persons could not rely solely on the clean title.
The affidavit of self-execution stating the source
of the properties thereby showing the
reservable nature thereof was registered with
the Register of Deeds.
It also appeared that the 3rd persons were long-
time acquaintances with the respondents, and
that the buyers knew all along that the
properties were of a reservable character.
Moreover, the SC also stated that it was the
duty of the reservista to both reserve the
property & annotate it accordingly as well.
*Note: The above ruling shows that, despite the
lack of a provision in the new Code, there is still
a duty on the part of the reservista to annotate
the property for the reservatarios. But the case
is silent on (1) the period within which the
annotation must be made & (2) whether the old
requirements apply in full.
Extinguishment
1. The death of the reservista
2. The death of all the reservatarios
 If one subscribes to the view that
the reservista can belong to the line
of origin, this will not ipso facto
extinguish the reserva because the
reservista, could have a child
subsequently, who would be a
reservatario
3. Renunciation by all the reservatarios
 Provided that no other reservatario
is born subsequently
4. Total fortuitous loss of the reserved
property
5. Confusion or merger of rights
 As when the reservatarios acquire
the reservistas right by a contract
inter vivos
6. Prescription or adverse possession
CASE: FRIAS CHUA V. CFI
Facts: The propositus (Juanito) inherited
property from his father (Jose). In the intestate
proceeding, the Court ordered Juanito & his
mother to pay Standard Oil Co. the sum of
P3,900. Is the first transfer (from the origin,
Jose, to the prepositus Juanito) still gratuitous?
Held: YES. The transmission is gratuitous when
the recipient (Prepositus) does not give anything
in return for the property received. It matters
not whether the property transmitted is subject
to any prior charges. What is essential is that
the transmission be made gratuitously, without
imposing any obligation on the part of the
recipient. It is evident that the transmission of
the property was by means of a hereditary
succession & therefore gratuitous. The
obligation was imposed by the Court, & not by
the prepositus' father.
As long as the transmission was free from any
condition imposed by the deceased himself &
the property is given out of pure generosity, it is
gratuitous.
CASE: RIOSA V. ROCHA
Facts: 11 parcels of land were acquired by Jose
from his father, Mariano. After Jose's death, by
operation of law, the parcels of land passed to
his mother Maria, who had the duty to preserve
it. Maria, however, sold parcels 10 & 11 to
Marcelina & Pablo. Magin Riosa, the nearest
relative within the 3rd degree, filed an action for
the property to be declared as reservable & for
the reservation to be noted in the Registry of
Deeds, & further, to declare the sale valid only
insofar as it saves the right of reservation in her
favor. Will Magin’s action prosper?
Held: YES. Maria as reservista is obliged to have
the reservation noted in the Registry of Deeds.
The reservista is bound to register the
reservation within 90 days from the date of the
adjudication of the property to the heirs by the
court. After this period, the reservatarios have
the right to enforce compliance with the
obligation. Where a reservable property is sold
by the reservista, without having registered its
reservable character, the obligation to register
the same is transferred to the purchaser, when,
in making the purchase, the latter knew the
facts which give the property the reservable
character. Marcelina Casas & Pablo Rocha being
the daughter-in-law & nephew of Maria Corral,
the buyers knew that the parcels of land were
reservable property; thus, the duty of Maria to
record the reservable character of Parcels 10
and 11 had been transferred to the buyers.
CASE: MENDOZA V. DE LOS SANTOS
Facts: Placido & Dominga had 4 children, among
them Exequiel. Upon Exequiel's death, his
properties passed on to his widow Leonor &
daughter Gregoria. After Leonor's death, her
share went to Gregoria. Gregoria died intestate
& without issue. Leonor's sister Julia allegedly
then adjudicated unto herself all the properties
as the sole surviving heir of Leonor & Gregoria.
The granchildren of Placido & Domingo
(Exequiel's nephews & nieces) claim that the
properties should have been reserved by Julia in
their behalf & must now revert back to them.
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Julia, however, claims that the properties were
not originally owned by Placido & Dominga; that
they were bought by Exequiel from a certain
Alfonso Ramos.
The RTC ruled in favor of the grandchildren &
ordered the reconveyance of the properties to
them, but the CA reversed this decision, holding
that the grandchildren failed to establish that
Placido & Dominga owned the properties & that
even if that fact were proved, the provision on
reserva troncal cannot apply as neither Exequiel
predeceased Placido & Dominga nor did
Gregoria predecease Exequiel. Was the CA
correct?
Held: NO. The SC ruled that the ownership of the
properties should be reckoned only from
Exequiel's death, since he is the ascendant from
where the first transmission occurred, from
whom Gregoria inherited the properties. The law
does not go farther than the
ascendant/brother/sister in determining the
lineal character of the property. It was
immaterial for the CA to determine whether
Exequiel predeceased Placido & Dominga or
whether Gregoria predeceased Exequiel. What is
pertinent is that Exequiel owned the properties
& he is the ascendant from whom the properties
in dispute originally came. Gregoria, on the
other hand, is the descendant who received the
properties from Exequiel by gratuitous title.
However, Julia (Leonor's sister) is not Gregoria's
ascendant; rather, she is Gregoria's collateral
relative within the 3rd degree. Further, the
grandchildren cannot be considered
reservatorios as they are not relatives within the
3rd degree of Gregoria. They are actually
Gregoria's 4th degree relatives, being her first
cousins.
Thus, while the properties are reservable in
character, the grandchildren cannot benefit
from reserva troncal, because Julia is not the
other ascendant within the purview of Art. 891
& because they (the grandchildren) are not
Gregoria's relatives within the 3rd degree.
What should be applied are Art. 1003 & 1009.
The SC also noted that the RTC erred in ordering
the reconveyance of the properties to the
grandchildren. Assuming arguendo that the
reserva troncal is applicable in the case at bar,
the RTC should have had the reservable nature
of the property registered on Julia's titles.
Article 904. The testator cannot deprive his
compulsory heirs of their legitime, except in
cases expressly specified by law. Neither can
he impose upon the same any burden,
encumbrance, condition, or substitution of any
kind whatsoever. (813a)
Testator Devoid of Power to Deprive Compulsory
Heirs of Legitime
 GR: The legitime is not within the control
of the testator; it passes to the
compulsory heirs by operation of law.
  EXC: Disinheritance
Testator Devoid of Power to Impose Burdens on
Legitime
 GR: The testator cannot impose burdens
on the legitime, since it passes by strict
operation of law.
 EXC: The law grants the testator some
power in certain instances –
1. Art. 1080, par. 2 - A parent who, in
the Interest of his or her family,
desires to keep any agricultural,
industrial, or manufacturing
enterprise intact, may avail himself
of the right granted him in this
article, by ordering that the legitime
of the other children to whom the
property is not assigned, be paid in
cash.
2. Art. 1083, par. 1 - Every co-heir has a
right to demand the division of the
estate unless the testator should
have expressly forbidden its
partition, in which case the period of
indivision shall not exceed 20 years
as provided in Art. 494. This power of
the testator to prohibit division
applies to the legitime.
Restrictions on the Legitime Imposed by Law
1. Art. 159, Family Code - The family home
shall continue despite the death of one or
both spouses or of the unmarried head of
the family for a period of 10 years or for
as long as there is a minor beneficiary,
and the heirs cannot partition the same
unless the court finds compelling reasons
therefor. This rule shall apply regardless of
whoever owns the property or constituted
the family home.
2. Reserva troncal
Article 905. Every renunciation or
compromise as regards a future legitime
between the person owing it & his compulsory
heirs is void, &
 The latter may claim the same upon the
death of the former;
 BUT they must bring to collation
whatever they may have received by
virtue of the renunciation or compromise.
(816)
Reason for the Rule
Before the predecessor’s death, the heir’s right
is simply inchoate.
Duty to Collate
Any property the compulsory heir may have
gratuitously received from his predecessor
because of his renunciation or compromise will
be considered an advance on his legitime &
must be duly credited.
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Scope of Prohibition
 Applicable ONLY to –
1. Renunciation
2. Compromise
 Between the (1) prospective compulsory
heir & (2) the predecessor.
 BUT: transactions between the prospective
compulsory heir & another prospective
compulsory heir, or even a stranger, are
still prohibited under Art. 1347, par. 2 –
o No contract may be entered into
upon future inheritance except in
cases expressly authorized by law.
CASE: VDA. DE TUPAS V. RTC
Facts: Epifanio Tupas died, leaving his widow
Partenza as his only compulsory heir. In his will,
among the assets listed therein were several
lots, admittedly his private capital. However, at
the time of his death, these lots were no longer
owned by him; he already donated them the
year before to the Tupas Foundation. Claiming
that the donation left her destitute of any
inheritance, Partenza brought suit against the
Tupas Foundation to have the donation declared
inofficious insofar as it prejudiced her legitime,
therefore reducible. Should the donation be
declared inofficious?
Held: YES. Forced heirs are entitled to have
donations set aside insofar as they are
inofficious, i.e., in excess of the portion of free
disposal. The fact that the donated property no
longer actually formed part of the estate of the
donor at the time of his death cannot be
asserted to prevent its being brought to
collation. Indeed, it is an obvious proposition
that collation particularly applies to gifts inter
vivos. Since it is clear that the questioned
donation is collatable & that, having been made
to a stranger (to the donor) it is, by law,
chargeable to the freely disposable portion of
the donor’s estate, to be reduced insofar as
inofficious.
If the value of the donation at the time it was
made does not exceed that difference, then it
must be allowed to stand. But if it does, the
donation is inofficious as to the excess and must
be reduced by the amount of said excess. In this
case, if any excess be shown, it shall be
returned or reverted to Partenza as the sole
compulsory heir of Epifanio.
CASE: DE BELEN VDA. DE CABALU V. TABU
Facts: Faustina Maslum executed a will,
instituting as heirs her nephews & nieces, one of
whom was Benjamin Laxamana. Faustina died in
1941; however, her will was never probated.
Benjamin died in 1960, leaving his wife & son
Domingo as co-heirs. In 1975, Domingo sold a
9,000 sqm. property supposedly inherited from
Faustina & then Benjamin in favor of Laureano.
The Deed of Extrajudicial Partition between all
the heirs of Faustina was only executed in 1994.
Was the sale to Laureano in 1975 valid?
Held: NO. The SC ruled that the sale cannot be
deemed valid because at the time it was made
(1975), Domingo was not yet the owner of the
property. He could not validly dispose of the
whole or even a portion thereof for the reason
that he was not the sole heir of Benjamin, as his
mother only died in 1980.
Further, under Art. 1347, "No contract may be
entered into upon future inheritance except in
cases expressly authorized by law." A contract
entered into upon future inheritance is void. This
provision applies when the ff. requisites concur:
(1) the succession has not yet been opened; (2)
the object of the contract forms part of the
inheritance; & (3) the promissor has, with
respect to the object, an expectancy of a right
which is purely hereditary in nature.
In this case, at the time the Deed of Sale was
executed, Faustina’s will was not yet probated;
the object of the contract, the 9,000 sqm.
property, still formed part of the inheritance of
his father Benjamin; & Domingo had a mere
inchoate hereditary right therein. Thus, the sale
is void.
Article 906. Any compulsory heir to whom the
testator has left by any title less than the
legitime belonging to him may demand that
the same be fully satisfied. (815)
Right of Completion of Legitime
 Art. 906 is referred to as the right
completion of legitime (actio
supplendam legitimam).
 This rule applies only to transmissions
gratuitous title.
 Cross-references: Art. 855, Art. 909
91017
Things Received by Gratuitous Title
GR: Anything a compulsory heir receives by
gratuitous title from the predecessor is
17 Art. 855. The share of a child or descendant omitted in a
will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so much
as may be necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)
Art. 909. Donations given to children shall be charged to their
legitime.Donations made to strangers shall be charged to that
part of the estate of which the testator could have disposed
by his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code. (819a)
Art. 910. Donations which an illegitimate child may have
received during the lifetime of his father or mother, shall be
charged to his legitime.
Should they exceed the portion that can be freely disposed of,
they shall be reduced in the manner prescribed by this Code.
(847a)
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considered an advance on the legitime &
deducted therefrom.
EXC: The law provides two exceptions:
1. Art. 1062 – If the predecessor gave the
compulsory heir a donation inter vivos &
provided that it was not to be charged
against the legitime
2. Art. 1063 – Testamentary dispositions
made by the predecessor to the
compulsory heir, unless the testator
provides that it should be considered
part of the legitime.
Article 907. Testamentary dispositions that
impair or diminish the legitime of the
compulsory heirs shall be reduced on petition
of the same, insofar as they may be inofficious
or excessive. (817)
Art. 907 & Art. 904 Share Same Premise
If the testamentary dispositions exceed the
disposable portion, the compulsory heirs may
demand their reduction tothe extent that the
legitimes have been impaired.
Article 908. To determine the legitime –
 The value of the property left at the
death of the testator shall be considered,
 Deducting all debts & charges, which
shall not include those imposed in the
will.
 To the net value of the hereditary estate,
shall be added the value of all donations
by the testator that are subject to
collation, at the time he made them.
(818a)
Computing Net Hereditary Estate
of The process has three steps:
ad 1. Compute for Gross Assets by determining
the value of inventory
by 1. Inventory all the existing assets
2. Appraisal ofthe existing assets at the
& time of the decedent’s death
3. These assets include only those
properties that survive the decedent
(i.e., those which are not
extinguished by his death)
2. Compute for Available Assets by
deducting unpaid debts and charges
1. All unpaid debts, charges &
obligations of the decedent should be
deducted from the gross assets.
2. Only those obligations with monetary
value not extinguished by death are
considered. Thus, those obligations
which are purely personal (intuitu
personae) are not taken into account.
3. The difference between the gross
assets and the unpaid obligations will
be the available assets.
3. Adding the value of donations inter vivos
to get Net Hereditary Estate
 1. To the available assets should be
added all the inter vivos donations
made by the decedent.
2. The donations inter vivos shall be
valued as of the time they were
respectively made.
 Any increase or decrease in
value from the time they were
made to the time of the
decedent’s death shall be for
the donee’s account, since
donation transfers ownership to
the donee.
3. The sum of the available assets & all
the donations inter vivos is the net
hereditary estate
Q: If the decedent donated P20 in the church all
the time, will that be included in the donations
that are collated?
A: NO. Practically speaking, this would be
difficult to do. Note that the goal of the collation
of donations is to determine whether the
donations exceed what is allowed to be given
away via legitime – thus, if the donations
aggregated are, in total, inofficious. Where the
donations are NOT inofficious, this won’t be a
problem.
CASE: VIZCONDE V. CA
Facts: Estrelita was one of 5 children of Rafael &
Salud. She married Lauro & had 2 kids with him.
Estrelita purchased from her dad, Rafael, a
parcel of land in Valenzuela. Later, she sold this
property & bought, using the money earned,
another lot in BF Homes, Parañaque. The
remaining amount of the proceeds was used in
buying a car while the balance was deposited in
a bank. Later, in what is infamously known as
the Vizconde massacre, Estrelita & her 2 kids
were murdered. In the settlement of Estrelita’s
estate, Lauro signed an extrajudicial settlement
with Rafael & Salud where they agreed to split
the properties 50-50. After this, Rafael & Salud
waived all other rights & claims. Later on, in
judicial proceedings following Rafael’s death,
the probate court nullified the transfer of the
Valenzuel property from Rafael to Estrelita,
declaring the Parañaque property as subject to
collation. Is the transfer void?
Held: NO. Collation is the act by which
descendants or other forced heirs who intervene
in the division of the inheritance of an
ascendant bring into the common mass, the
property which they received from him, so that
the division may be made according to law and
the will of the testator. Collation is only required
of compulsory heirs succeeding with other
compulsory heirs and involves property or rights
received by donation or gratuitous title during
the lifetime of the decedent. The purpose is to
attain equality among the compulsory heirs in
so far as possible for it is presumed that the
intention of the testator or predecessor in
interest in making a donation or gratuitous
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transfer to a forced heir is to give him
something in advance on account of his share in
the estate, and that the predecessor’s will is to
treat all his heirs equally, in the absence of any
expression to the contrary. Collation does not
impose any lien on the property or the subject
matter of collationable donation. What is
brought to collation is not the property donated
itself, but rather the value of such property at
the time it was donated, the rationale being that
the donation is a real alienation which conveys
ownership upon its acceptance, hence any
increase in value or any deterioration or loss
thereof is for the account of the heir or donee.
The probate court erred in ordering the inclusion
of petitioner in the intestate estate proceeding.
Petitioner, a son-in-law of Rafael, is not one of
Rafael’s compulsory heirs.
Even on the assumption that collation is
appropriate in this case, the probate court still
made a reversible error in ordering collation of
the Parañaque property. What was transferred to
Estrelita was the Valenzuela property. The
Paranaque property which Estrellita acquired by
using the proceeds of the sale of the Valenzuela
property does not become collationable simply
by reason thereof. Indeed, collation of the
Paranaque property has no statutory basis. The
order of the probate court presupposes that the
Paranaque property was gratuitously conveyed
by Rafael to Estrellita. Records show that the
Paranaque property was conveyed for and in
consideration of P900,000, by Premier Homes,
Inc., to Estrelita, Rafael, the decedent, has no
participation therein, and Lauro who inherited
the Paranaque property is not one of Rafael’s
heirs.
Article 909. Donations given to children shall
be charged to their legitime. Donations made
to strangers shall be charged to that part of the
estate of which the testator could have
disposed by his last will.
Insofar as they may be inofficious or may
exceed the disposable portion, they shall be
reduced according to the rules established by
this Code. (819a)
Article 910. Donations which an illegitimate
child may have received during the lifetime of
his father or mother, shall be charged to his
legitime.
Should they exceed the portion that can be
freely disposed of, they shall be reduced in the
manner prescribed by this Code. (847a)
Donations Inter Vivos to Compulsory Heir
GR: Donations inter vivos to a compulsory heir
shall be deducted from his legitime, i.e., as an
advance on his legitime.
 Applies to ALL compulsory heirs, from
ascendants to descendants
 Does NOT apply to the surviving spouse
 o EXC: in cases of donations propter
nuptias & moderate gifts under Art.
87, Family Code
EXC: If the donor provided otherwise; in which
case the donation will be imputed to the
disposable portion of the estate.
Donations Inter Vivos to Strangers
 A stranger is anyone who does not
succeed as a compulsory heir.
 Donations inter vivos to strangers are
necessarily imputed to the disposable
portion.
Article 911. After the legitime has been
determined in accordance with the 3 preceding
articles, the reduction shall be made as follows:
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling,
if necessary, the devises or legacies made in
the will;
(2) The reduction of the devises or legacies
shall be pro rata, without any distinction
whatever.
If the testator has directed that a certain
devise or legacy be paid in preference to
others, it shall not suffer any reduction until the
latter have been applied in full to the payment
of the legitime.
(3) If the devise or legacy consists of a usufruct
or life annuity, whose value may be considered
greater than that of the disposable portion, the
compulsory heirs may choose between
complying with the testamentary provision &
delivering to the devisee or legatee the part of
the inheritance of which the testator could
freely dispose. (820a)
Inviolability of the Legitime
If the legitimes are impaired, the gratuitous
dispositions of the testator (either inter vivos or
mortis causa) have to be set aside or reduced as
may be required to cover the legitimes.
Order of Priority of Reductions
1. First, reduce pro rata the –
 Non-preferred legacies and devises &
 The testamentary dispositions to heirs
Among these legacies, devises, & portion of the thing devised.
testamentary dispositions there is no
preference.
2. Second, reduce pro rata the preferred
legacies and devises. (Art. 911, last par.)
3. Third, reduce the donations inter vivos
according to the inverse order of their dates
[i.e., the oldest is the most preferred)
Extent of Reductions
Reductions shall be to the extent required to
complete the legitimes, even if in the process
the disposition is reduced to nothing.
Devises, Legacies, Life Annuities, Pensions
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1. If, upon being capitalized according to
actuarial standards, the value of the grant
exceeds the free portion (i.e., it impairs the
legitime), it has to be reduced, because the
legitime cannot be impaired.
2. The testator can impose no usufruct or any
other encumbrance on the part that passes
as legitime.
3. Subject to the two rules just stated, the
compulsory heirs may elect between
ceding to the devisee/legatee the free
portion (or the proportional part thereof
corresponding to the said legacy/devise, in
case there are other dispositions), and
complying with the terms of the usufruct or
life annuity or pension.
Article 912. If the devise subject to reduction
should consist of real property, which cannot
be conveniently divided –
 It shall go to the devisee if the reduction
does not absorb ½ of its value; &
 In a contrary case, to the compulsory
heirs;
But the former & the latter shall reimburse
each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may
retain the entire property, provided its value
does not exceed that of the disposable portion
& of the share pertaining to him as legitime.
(821)
Coverage of Art. 912
(1) Cases where the devise has to be reduced
&
(2) Cases where the thing given as a devise is
indivisible.
Rules for Art. 912
1. If the extent of reduction is less than 1 /2 of
the value of the thing—it is given to the
devisee
2. If extent of reduction is 1/2 or more of the
value of the thing—it is given to the
compulsory heir
Either way, there is pecuniary reimbursement
to the party who did not get his physical
Article 913. If the heirs or devisees do not
choose to avail themselves of the right granted
by [Art. 912], any heir or devisee who did not
have such right may exercise it; should the
latter not make use of it, the property shall be
sold at public auction at the instance of any
one of the interested parties. (822)
Constructive Partition: How to Go About It
1. Any other heir ordevisee, who elects to do
so, may acquire the thing and pay the
parties (the compulsory heir and the
devisee in question) their respective shares
in money;
 2. If no heir or devisee elects to acquire it, it
shall be sold at public auction and the net
proceeds accordingly divided between the
parties concerned.
Similar to Co-Ownership & Partition
This rule of constructive partition is similar to
that in co-ownership (Art. 498) and in partition
of the decedent’s estate (Art. 1086), except
that, in these two latter cases, the acquisition
by one of the co-owners or co-heirs can be done
only if all the co-owners or co-heirs agree to
such acquisition.
Article 914. The testator may devise &
bequeath the free portion as he may deem fit.
(n)
SECTION 6
Disinheritance
Article 915. A compulsory heir may, in
consequence of disinheritance, be deprived of
his legitime, for causes expressly stated by law.
(848a)
Q: Can a legitimate son, in any other way, be
not entitled to inheritance? What if X did not
make a last will and testament; would there still
be a situation where the legitimate son of X
cannot inherit?
A: Yes, if one looks at the concept of incapacity.
If you look at Art. 1032 – when these situations
are present, you do not need a will to disinherit;
the legitimate son will just not inherit. The
grounds for incapacitating under Art. 1032 are
similar to the groundncxbs provided for
disinheritance. Example, Art. 919 is in Art. 1032.
Compare these two grounds, these are
incredibly important.
Entitlement of Heirs to Legitime
 GR: The testator cannot deprive the
compulsory heirs of the legitime
 EXC: Disinheritance
o Disinheritance is disfavored by law
& is strictly construed
Requisites for Disinheritance
(WUT-C-STP)
1. It must be made in a Will.
2. It must be Unconditional.
3. It must be Total.
4. It must be for a Cause specified by law.
5. The will must Specify the cause.
6. The cause must be True.
7. If the truth of the cause is denied, it must
be Proved by the proponent.
Effect of Disinheritance
The effect is total exclusion, i.e., forfeiting:
1. Legitime
2. His intestate portion, if any, &
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3. Any testamentary disposition made in a
prior will of the disinheriting testator
Q: Does the will disinheriting have to be in a
valid form?
A: YES.
Q: Does the will disinheriting have to be
probated?
A: YES.
MEL
Q: What if the disinherited heir has children?
A: The disinheritance is only as to the
disinherited heir; the children of the disinherited
heir will have the right of representation. This
refers to the legitime portion.
Q: What if the disinherited heir has no children?
A: Then the succession will be by intestacy.
Q: What happens to the free portion if there is
disinheritance vis-à-vis intestacy?
A: The free portion will go to the other heirs by
way of accretion.
In testamentary succession, you must
distinguish the effect of disinheritance in the
free portion versus the legitime.
Q: What happens when there is intestate
succession and then a disinheritance?
CASE: FRANCISCO V. ALFONSO
Facts: Gregorio & his wife Cirila had one child,
Aida. Gregorio, however, had a common-law
wife, Julia, with whom he had 7 children. During
his lifetime, Gregorio sold 2 parcels of
residential land to 2 of his illegitimate children
(Regina & Zenaida). After Gregorio died, Aida
sought to annul the sale to the 2 illegitimate
kids. Should the annulment of the sale be
granted by SC?
Held: YES. The SC held that the sale was
simulated, as there was no consideration
therefor. Regina & Zenaida, the buyers, did not
have any source of income in 1983 when they
bought the property. Further, assuming
arguendo the sale was not simulated, it would
still be in violation of the Civil Code insofar as
the transaction affected Aida's legitime. The
sale, having been executed in 1983, when the
applicable law was the Civil Code, & not the
Family Code, was obviously to transfer the
property to his illegitimate daughters at the
expense of his legitimate daughter. Before his
death, Gregorio had a change of heart &
informed Aida about the titles to the property
being in possession of Regina & Zenaida. Aida
as Gregorio's compulsory heir cannot be
deprived of her share in the estate save by
disinheritance as prescribed by law. Thus, the
sale is declared void.
Article 916. Disinheritance can be effected
only through a will wherein the legal cause
therefor shall be specified. (849)
Made in a Will
The will must be –
1. Formally valid &
2. Admitted to probate MEL: Grounds of incapacity that are similar to
Legal Cause grounds for disinheritance
1. Art. 919 (for descendants) Why is it important to know the similarity of
2. Art. 920 (for ascendants) grounds between incapacity and disinheritance?
3. Art. 921 (for the surviving spouse)
Article 919. The ff. shall be sufficient causes
Article 917. The burden of proving the truth of for the disinheritance of children &
the cause for disinheritance shall rest upon the descendants, legitimate as well as illegitimate:
other heirs of the testator, if the disinherited (3) When a child or descendant has been
heir should deny it. (850) found guilty of an attempt against the life
of the testator, his or her spouse,
Burden of Proof with Claimant Heirs descendants, or ascendants;
 Truth here is not presumed; it must be (4) When a child or descendant has accused
proved. the testator of a crime for which the law
 Disinherited heir needs only to DENY the prescribes imprisonment for six years or
cause & the burden is shifted upon those more, if the accusation has been found
who would uphold the disinheritance. groundless;
(5) When a child or descendant has been
Article 918. Disinheritance – convicted of adultery or concubinage
 Without a specification of the cause, or with the spouse of the testator;
 For a cause the truth of which, if (6) When a child or descendant by fraud,
contradicted, is not proved, or which is violence, intimidation, or undue influence
not one of those set forth in this Code, causes the testator to make a will or to
Shall annul the institution of heirs insofar as it change one already made;
may prejudice the person disinherited; but the (7) A refusal without justifiable cause to
devises & legacies & other testamentary support the parent or ascendant who
dispositions shall be valid to such extent as will disinherits such child or descendant;
not impair the legitime. (851a) (8) Maltreatment of the testator by word or
deed, by the child or descendant;
Effective Disinheritance (9) When a child or descendant leads a
dishonorable or disgraceful life;
 If the disinheritance lacks a requisite, the
(10) Conviction of a crime which carries
heir in question gets his legitime.
with it the penalty of civil interdiction.
 As to whether he will also get any part of
(756, 853, 674a)
the intestate portion or not, this depends!
Did the testator give away the free portion
Causes to Disinherit Legitimate & Illegitimate
through testamentary dispositions?
Children
o If YES - these dispositions are valid
(1) When a child or descendant has been
& the compulsory heir improperly
found guilty of an attempt against the life
disinherited gets only his legitime
of the testator, his or her spouse,
o If NO - the compulsory heir will be
descendants, or ascendants
entitled to his corresponding share
 Not limit to “attempted” stage
of the free portion as well
o All stages of commission are
included—whether attempted,
Ineffective Preterition
frustrated, or consummated.
Disinheritanc
 The felony, obviously, must be an
e
intentional one.
Definitio Failing to (1) The omission
 Final conviction is required.
n meet even of an heir in the
(2) When a child or descendant has accused
just 1 will,
the testator of a crime for which the law
requisites for (2) which tacitly
prescribes imprisonment for 6 years or
disinheritance deprived him of his
more, if the accusation has been found
right to the
groundless
legitime.
 Accused - understood generically
Effect Annuls the Throws open the
o Includes filing of the complaint
institution entire inheritance
insofar as it except for legacies before the prosecutor,
may prejudice & devices o Presenting incriminating
the person evidence against the testator,
disinherited o Suppressing exculpatory
except for evidence.
legacies &  Penalty must equate to at least 6
devices years’ imprisonment

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  Testator must be acquitted
 Accusation must be found to be
groundless - judgment must state
either –
o That no crime was committed;
o That the accused did not
commit the crime; or
 An acquittal on reasonable doubt
will not be a ground for
disinheritance.
(3) When a child or descendant has been
convicted of adultery or concubinage with
the spouse of the testator
 Final conviction is required
 Similar to (1)
(4) When a child or descendant by fraud,
violence, intimidation, or undue influence
(FIVU) causes the testator to make a will
or to change one already made
(5) A refusal without justifiable cause to
support the parent or ascendant who
disinherits such child or descendant;
 Art. 203, Family Code –
The obligation to give support is
demandable from the time the
person who has a right to receive it
needs it for maintenance, but it shall
not be paid except from the date of
judicial or extrajudicial demand.
Support pendente lite may be
claimed in accordance with the Rules
of Court.
Payment shall be made within the
first 5 days of each corresponding
month. When the recipient dies, his
heirs shall not be obliged to return
what he has received in advance.
 Art. 200, par. 3, Family Code - The
demand must be unjustifiably
refused. Refusal may be justified
o If the obligor does not have
enough resources for all whom
he is obliged to support.
o The ascendants are only third in
the hierarchy of preference
among claimants of support
(6) Maltreatment of the testator by word or
deed, by the child or descendant
 Required that the act of verbal or
physical assault be of a serious
nature.
 No conviction or filing of the criminal
case is required
o THUS: A physical assault that
would not fall under par. 1 could
fall under this paragraph.
(7) When a child or descendant leads a
dishonorable or disgraceful life
 There MUST be habituality
 Could be sexual, related to drug
pushing or smuggling, etc.
(8) Conviction of a crime which carries with it
the penalty of civil interdiction.
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 Accessory penalty of civil interdiction
is imposed with the principal
penalties of death, reclusion
perpetua, and reclusion temporal.
 Final conviction is required
Q: What is the meaning of the term “undue
influence” in (4)?
A: It means some form of moral ascendancy
over the decedent.
Q: What about failure to give support, what is
this referring to?
A: Those who are legally obliged to support; one
is legally obliged to support –
1. Children
2. Parents
3. Those dependent on one’s income
Q: If a son is legally obliged to support his
father, how can you be justified in not
supporting him?
A: You do not have enough resources for
yourself. This would not lead to disinheritance.
The denial must be unjustified.
CASE: PECSON V. MEDIAVILLO
Facts: When Rosario was 14, she received a
letter from a young man. Her grandfather
Florencio, the decedent, talked to her about it.
Rosario allegedly showed disobedience &
disrespect to her grandfather, raising her hand
as if to strike him. Soon after the event, Rosario
lost the use of her mental powers & she has
never regained them, except for very brief
periods. However, due to that event, Florencio
disinherited Rosario. Is the disinheritance valid?
Held: The SC ruled that courts may inquire
whether the disinheritance has been made
properly and for the causes provided by law.
Given Rosario's tender years, & the fact that she
very soon thereafter lost the use of her mental
faculties, the SC held that Rosario was probably
not responsible for the disrespect &
disobedience shown to her grandfather. Thus,
the clause pertaining to Rosario's disinheritance
is contrary to law and set aside.
Q: What crimes usually carry the punishment of
civil interdiction?
A: Usually when the accused is convicted of
death, reclusion perpetua, & reclusion temporal.
Article 920. The following shall be sufficient
causes for the disinheritance of parents or
ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their
children or induced their daughters to
live a corrupt or immoral life, or
attempted against their virtue;
(2) When the parent or ascendant has been
convicted of an attempt against the life
of the testator, his or her spouse,
descendants, or ascendants;
 (3) When the parent or ascendant has
accused the testator of a crime for which
the law prescribes imprisonment for six
years or more, if the accusation has been
found to be false;
(4) When the parent or ascendant has been
convicted of adultery or concubinage
with the spouse of the testator;
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to
change one already made;
(6) The loss of parental authority for causes
specified in this Code;
(7) The refusal to support the children or
descendants without justifiable cause;
(8) An attempt by one of the parents against
the life of the other, unless there has
been a reconciliation between them.
(756, 854, 674a)
Q: What are the instances unique to this
provision?
A: The instances are –
1. If the parent or descendant abandons the
child
2. The parent induces the child to live a corrupt
life
 This applies not just to children, but to
other descendants like grandchildren
(Tolentino)
 Applies generally to daughters, but
could apply to sons too
3. The parent makes an attempt against the
child’s virtue
 Conviction is not required
4. Loss of parental authority under the Family
Code
 Not all instances are covered; it has to
be those where the parent or ascendant
has culpability, such as –
1. Judicial deprivation of parental
authority on the ground of
sexual abuse
2. Loss of parental authority as a
result of judicial declaration of
abandonment of the child
3. Judicial deprivation of parental
authority on the grounds of:
a. Excessively harsh or cruel
treatment of the child
b. Giving the child corrupting
orders, counsel, or
example
c. Compelling the child to
beg
d. Subjecting the child or
allowing him to be
subjected to acts of
lasciviousness
 Repeated or total refusal or failure to
care for the child
 Chua v. Cabangbang - mere
acquiescence—without more—is not
sufficient to constitute abandonment.
o The courts will look at the totality
of the circumstances; it can be
inferred
o Key is the intent to completely
forego all parental responsibilities
& forever relinquish all parental
claim in respect to the child
o Ex. In this case, the mom left her
daughter with the Cabangbangs
when the child was just 4 years
old; she completely withheld her
presence, her love, her care, and
the opportunity to display
maternal affection; and totally
denied her support and
maintenance.
5. One parent attempts on the life of another
parent, unless there has been reconciliation
 No conviction is required
 Reconciliation - removesthe right of the
descendant to disinherit & rescinds a
disinheritance already made.
Q: If the ascendant loses parental authority
because the child reached 18, is that a ground?
A: Not all grounds for loss of parental authority
suffice to disinherit an ascendant. The parents
must perform some act on his part which
involves culpability. That constitutes a ground
for disinheritance.
Article 921. The following shall be sufficient
causes for disinheriting a spouse:
(1) When the spouse has been convicted
of an attempt against the life of the
testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the
testator of a crime for which the law
prescribes imprisonment of 6 years or
more, and the accusation has been
found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence cause
the testator to make a will or to change
one already made;
(4) When the spouse has given cause for
legal separation;
(5) When the spouse has given grounds
for the loss of parental authority;
(6) Unjustifiable refusal to support the
children or the other spouse. (756,
855, 674a)
Grounds for Loss of Parental Authority (Art. 55,
Family Code)
(1) Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of
the petitioner;

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 (2) Physical violence or moral pressure to makes an descendant the
compel the petitioner to change religious attempt leads a spouse
or political affiliation; against dishonorable gives
(3) Attempt of respondent to corrupt or their virtue or disgraceful ground
induce the petitioner, a common child, or life for loss
a child of the petitioner, to engage in 2. Loss of of
prostitution, or connivance in such parental 3. Conviction parental
corruption or inducement; authority of a crime authority
(4) Final judgment sentencing the respondent under the which carries
to imprisonment of more than 6 years, Code with it the
even if pardoned; penalty of
(5) Drug addiction or habitual alcoholism of 3. One civil
the respondent; parent interdiction.
(6) Lesbianism or homosexuality of the makes an
respondent; attempts
(7) Contracting by the respondent of a on the life
subsequent bigamous marriage, whether of the
in the Philippines or abroad; other,
(8) Sexual infidelity or perversion; unless
(9) Attempt by the respondent against the life there has
of the petitioner; or been
(10) Abandonment of the petitioner by reconciliati
respondent without justifiable cause for on
more than 1 year. Same 1. When the heir has been
for convicted of adultery or
Q: Which provisions are unique in the provision? two concubinage with the
A: There are two – types spouse of the testator
1. When the spouse gives grounds for legal of
separation heirs 2. Refusal without
2. When the spouse gives ground for loss of justifiable cause to support
parental authority the decedent who
disinherits such heir
Loss of Parental Authority - Ascendant v. Spouse
 Ascendant - actual loss of parental Article 922. A subsequent reconciliation
authority is required between the offender & the offended person
 Spouse - giving grounds therefor is deprives the latter of the right to disinherit, &
sufficient renders ineffectual any disinheritance that may
have been made. (856)
Summary of Causes for Disinheritance
Ascendant Descendants Spouse Reconciliation
s  Either an express pardon or unequivocal
Same 1. When the heir is guilty of an attempt conduct of the testator towards the
against the life of the testator, his or offending heir which shows testator’s
her spouse, descendants, or intent to forgive
ascendants o If express pardon - a general pardon
2. When the heir has accused the extended on the testator’s deathbed
testator of a crime for which the law to all who offended him is not
prescribes imprisonment for 6 years or enough; it must be a pardon
more, if the accusation has been found expressly & concretely extended to
groundless the offender, who accepts it
3. When the heir by fraud, violence, o If conduct - the intent to forgive
intimidation, or undue influence causes must be clear. This is a question of
the testator to make a will or to change fact to be resolved by courts
one already made
Uniqu 1. If the 1. 1. When Effect of Reconciliation [MEL asked this]
e parent or Maltreatment the Occurring Right to disinherit is
ascendant of the testator spouse Prior to extinguished
abandons by word or gives Disinheritance
the child, deed, by the grounds Occurring Right to disinherit is set aside
induces child/ for legal After
him or her descendant separatio Disinheritance
to live a n
corrupt 2. When a Effects of Setting Aside the Disinheritance
life, or child or 2. When

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 1. The disinherited heir is restored to his
legitime.
2. If the disinheriting will did not dispose of
the disposable portion, the disinherited
heir is entitled to his proportionate share
(in intestacy) if any, of the disposable
portion.
3. If the disinheriting will or any subsequent
will disposed of the disposable portion (or
any part thereof) in favor of testamentary
heirs, legatees, or devisees, such
dispositions remain valid.
Q1: X cheated on Y with Jenny. Y threatens X
that Y will disinherit X. Eventually, though, Y
forgives X, & writes in her will that she will allow
X to inherit. Is X still considered disinherited?
A1: No.
Q2: What if Y puts a 2nd will that Y wants to
disinherit X again?
A2: The disinheritance will be ineffectual, since
Y already forgave X.
Q: What if X wrote, “I forgive everyone who has
sinned against me.” Is this considered a
revocation of the inheritance?
A: No, because forgiveness must be specifically
granted to a particular person.
Article 923. The children & descendants of
the person disinherited shall –
1. Take his or her place &
2. Preserve the rights of compulsory heirs
with respect to the legitime;
BUT the disinherited parent shall not have the
(1) usufruct or (2) administration of the
property which constitutes the legitime. (857)
Right of Representation in Disinheritance
The right of representation is granted only to
descendants of disinherited descendants.
 Art. 972 - The right of representation takes
place in the direct descending line, but
never in the ascending
 Disinherited Child v. Ascendant or Spouse
Disinherited Heir Representative
Disinherited Child Children or other
descendants
Parent, ascendant, No right of
or spouse representation
Extent of Representation
 With respect to legitime (compulsory)
 With respect to intestate portion
(intestate)
 NOT testamentary succession
No Administration or Usufruct for Disinherited
Parent
 Refers to Art. 225 & 226, Family Code
o Art. 225, par. 1 - The father & the
mother shall jointly exercise legal
guardianship over the property of
their unemancipated common child
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without the necessity of a court
appointment
o Art. 226, par. 2 - The right of the
parents over the fruits and income
of the child’s property shall be
limited primarily to the child’s
support and secondarily to the
collective daily needs of the family.
Class Discussion
Q: What happens if the ascendant is being
deprived of his legitime due to disinheritance?
A: His children cannot exercise the right of
representation. That is because there is direct
descending line.
SECTION 7.
Legacies & Devises
Article 924. All things and rights which are
within the commerce of man be bequeathed or
devised. (865a)
Legacy
Testamentary disposition of personal property
by particular title
Devise
Testamentary disposition of real property by
particular title
Importance of Distinction
Legatees or devisees must be distinguished
from heirs because of the effects of preterition.
 Heir – receives an aliquot or fractional
portion of the inheritance
 Legatee or devisee (Lee/Dee)18 – receives
specific property
What can be Bequeathed
 Anything within the commerce of man
 It is not even required that the thing
bequeathed belongs to the testator
Limitations on L/D
It should not impair the legitime.
Class Discussion
Q: The testator says, “I give X my farm in
Batangas.”
A: X is a devise.
Q: The testator says, “I give X ½ of my
properties.”
A: X is an heir, as he gets an aliquot part.
Article 925. A testator may charge with
legacies & devises not only his compulsory
heirs but also the legatees & devisees.
The latter shall be liable for the charge only to
the extent of the value of the legacy or the
18 Abbreviations will be used throughout Section 7 to pertain
to either “devise or legacy” (L/D) or “devisee or legatee”
(Lee/Dee)
devise received by them. The compulsory heirs
shall not be liable for the charge beyond the
amount of the free portion given them. (858a)
Article 926. When the testator charges one of
the heirs with a legacy or devise, he alone shall
be bound. Should he not charge anyone in
particular, all shall be liable in the same
proportion in which they may inherit. (859)
Who is Charged with the Legacy
GR: The estate
EXC: The testator may impose the burden on –
 A testamentary heir
 A devisee
 A legatee
If the testator does so & said successor accepts
the disposition in his favor, the latter shall be
bound to deliver the legacy or devise to the
person specified.
 This is a subsidiary L/D
 As far as the heir or Lee/Dee is
considered, it is a mode (Art. 882)
Error as to Compulsory Heir
Art. 925 is erroneous, as a compulsory heir
cannot be burdened with a legacy or devise that
would impair his legitime.
 ONLY a testamentary heir could be so
burdened
Extent of Liability of the Heir or Lee/Dee [MEL]
The value of the benefit received from the
testator
Class Discussion
Q: What is meant by “charge”?
A: It means the duty or obligation to give the
legacy or device. Thus, the law means that the
heirs are bound to give the particular property,
as dictated by the testator, to the legatee or
devisee.
Q: The testator says, “I give him 5 cars but
charge him to give 5 to my daughter.” Is this
allowed?
A: Yes.
Q: The testator says, “I give him 5 cars but
charge him to give 6 to my daughter.” Is this
allowed?
A: No. That is already giving more than the
legatee is being given.
When it comes to compulsory heirs, however,
the charge also cannot impair the legitime.
Article 927. If 2 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. (n)
Liability in Art. 927
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 The basis of liability is malice, fault, or
negligence
 The same liability may attach to the
executor or administrator, in proper cases
Class Discussion
Q: Heir X gives the devisee the car owed to him,
but it is already broken due to the negligence of
Heir X. Who is liable, only Heir X, or all the
heirs?
A: All the heirs.
Article 928. The heir who is bound to deliver
the legacy or devise shall be liable in case of
eviction, if the thing is –
 Indeterminate &
 Indicated only by its kind. (860)
Who is Liable for an Eviction
GR: The estate
BUT: In case of a subsidiary legacy or devise, it
is the heir, devisee, or legacy charged
Class Discussion
Q: What is meant by “eviction”?
A: If the Lee/Dee loses what is given to him
because a third party has a better right. The
heir is therefore liable to the legatee or devisee
when this happens, but only of the thing is
indeterminate and indicated only as to the kind
of property.
Q: What is an example of an indeterminate
property bequeathed?
A: The testator, “X must give Y a piece of my
jewelry.”
Article 929. If the testator, heir, or legatee
owns only a part of, or an interest in the thing
bequeathed, the legacy or devise shall be
understood limited to such part or interest,
unless the testator expressly declares that he
gives the thing in its entirety. (864a)
L/D of a Thing Owned in Part by the Testator
GR: Conveys only the interest or part owned by
the testator
EXC: If the testator provides otherwise; then –
1. He may convey more than he owns
 The estate should attempt to
acquire the part or interested owned
by other parties
 If the other parties are unwilling to
alienate, the estate will give the
Lee/Dee the monetary equivalent
2. He may convey less than he owns (Art.
794)
Article 930. The legacy or devise of a thing
belonging to another person is void, if the
testator erroneously believed that the thing
pertained to him.
But if the thing bequeathed, though not
belonging to the testator when he made the
will, afterwards becomes his, by whatever title,
the disposition shall take effect. (862a)
Article 931. If the testator orders that a thing
belonging to another be acquired in order that
it be given to a legatee or devisee, the heir
upon whom the obligation is imposed or the
estate must acquire it & 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. (861a)
GR: A testator can only bequeath something
that he or she owns.
BUT: The testator may ask the person charged
to deliver a L/D to buy something in favor of a
Lee/Dee
BUT: If later on, the testator was able to acquire
it, the disposition becomes valid.
Article 932. The legacy or devise of a thing
which at the time of the execution of the will
already belonged to the legatee or devisee
shall be ineffective, even though another
person may have some interest therein.
If the testator expressly orders that the thing
be freed from such interest or encumbrance,
the legacy or devise shall be valid to that
extent. (866a)
Article 933. If the thing bequeathed belonged
to the legatee or devisee at the time of the
execution of the will, the legacy or devise shall
be without effect, even though it may have
subsequently alienated by him.
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. (878a)

L/D of a Thing Belonging to Another L/D of a Thing Already Belonging to Lee/Dee or

If the testator ordered The order should be Subsequently Acquired by the Him
the acquisition of the complied with If Lee/Dee The L/D is void.
thing  If the owner does already owned  It is NOT validated by an
not want to part the thing at the alienation made by the
with the thing, the time of the Lee/Dee subsequent to
L/D should give the execution of the the making of the will
monetary equivalent will o EXC: If the acquirer
If the testator The L/D is void is the testator
erroneously believed himself
that the thing EXC: If, subsequent to If the thing was  IF the testator
belonged to him the making of the owned by another erroneously believed it
disposition, the thing person at the belonged to him – the
is acquired by the time of the L/D is void
testator onerously or making of the will  IF the testator was not
gratuitously, the & acquired in error
disposition is validated thereafter by the o If the thing was
If the testator knew The Code is silent, but Lee/Dee acquired onerously
the thing did not Balane thinks it should by Lee/Dee –
belong to him but did be valid because – Lee/Dee gets
not order the  It’s like an order to reimbursement
acquisition acquire o If the thing was
 Doubts are resolved acquired
in favor of testacy gratuitously by the
Lee/Dee – nothing
Class Discussion more is due
Q1: What if the testator thought he owned a lot, If the thing was L/D should be deemed
but it turned out it was owned by someone else. owned by the valid, if applying Art. 957,
The testator truly believed it belongs to him. Is testator at the par. 2
this valid? time of the
A1: It is void. making of the will
Q2: What if the testator knew it did not belong & acquired
to him, but he gave it anyway? thereafter from
A2: It can be construed as an implied order to him by the
acquire the property, addressed to the instituted Lee/Dee
heir or legatee given that order.
Q3: What if the owner refuses to sell or charges
an excessive price?
A3: The one who is supposed to receive that
property is entitled to the value of that property
from the heir.

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L/D to Remove an Encumbrance Over a Thing
Belonging to the Lee/Dee
This is valid, if the encumbrance can be
removed for a consideration.
Article 934. If the testator should bequeath or
devise something pledged or mortgaged to
secure a recoverable debt before the execution
of the will, the estate is obliged to pay the
debt, unless the contrary intention appears.
The same rule applies when the thing is
pledged or mortgaged after the execution of
the will.
Any other charge, perpetual or temporary, with
which the thing bequeathed is burdened,
passes with it to the legatee or devisee. (867a)
[MEL DISCUSSED]
L/D of a Thing Pledged or Mortgaged
 The encumbrance must be removed by
paying the debt, unless the testator
intended otherwise
 A charge other than a pledge or mortgage
(e.g., as a usufruct or easement), passes
to the Lee/Dee together with the thing
Article 935. The legacy of a credit against a
third person or of the remission or release of a
debt of the legatee shall be effective only as
regards that part of the credit or debt existing
at the time of the death of the testator.
In the first case, the estate shall comply with
the legacy by assigning to the legatee all rights
of action it may have against the debtor. In the
second case, by giving the legatee an
acquittance, should he request one.
In both cases, the legacy shall comprise all
interests on the credit or debt which may be
due the testator at the time of his death.
(870a) [MEL DISCUSSED]
Class Discussion
Q: What is meant by remission in this provision?
A: The privilege of not having to pay the debt
also passes on the legatee.
Q: In a legacy of a remission of a debt, who
owes whom?
A: The legatee is the debtor (the one who owes
the debt to the testator). The testator’s grant is
the remission or forgiving of the debtor-
legatee’s debt.
The amount subject to remission will be based
on the debt as remaining at the time of death of
the testator.
Article 936. The legacy referred to in the
preceding Art. shall lapse if the testator, after
having made it, should bring an action against
the debtor for the payment of his debt, even if
such payment should not have been effected
at the time of his death.
The legacy to the debtor of the thing pledged
by him is understood to discharge only the
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right of pledge. (871)
Class Discussion
Q: What is meant by the term “lapse”?
A: He erases it by initiating an action for
collection against you. For example, a testator
may provide in the will that he will give a
devisee a Baguio house, but the next week, he
sells the same Baguio house. Evidently, the
house may no longer be given to the devisee.
Article 937. A generic legacy of release or
remission of debts comprises those existing at
the time of the execution of the will, but not
subsequent ones. (872)
Legacy of Credit or Remission
 Applies ONLY to amount still unpaid at the
time of the testator’s death
 Revoked if the testator subsequently sues
the debtor for collection
 If generic, applies only to those existing at
the time of the execution of the will
o UNLESS otherwise provided
Article 938. A legacy or devise made to a
creditor shall not be applied to his credit,
unless the testator so expressly declares.
In the latter case, the creditor shall have the
right to collect the excess, if any, of the credit
or of the legacy or devise. (837a)
L/D to a Creditor
GR: Will be treated like any other L/D &
therefore will not be imputed to the debt.
EXC: Will be imputed to the debt if the testator
so provides, & if the debt exceeds the L/D, the
excess may be demanded as an obligation of
the estate
Article 939. If the testator orders the payment
of what he believes he owes but does not in
fact owe, the disposition shall be considered as
not written. If as regards a specified debt more
than the amount thereof is ordered paid, the
excess is not due, unless a contrary intention
appears.
The foregoing provisions are without prejudice
to the fulfillment of natural obligations. (n)
Testamentary Instruction to Pay a Debt
 NOT a testamentary disposition; it is just a
direction to discharge a civil obligation
 Instruction to pay a non-existing debt –
should be disregarded; this is solutio
indebiti
 Instruction to pay more than what is due –
effective ONLY as to what is due
 o UNLESS a bigger amount specified legacy by the delivery of a thing which is
constitutes a natural obligation neither of inferior nor of superior quality. (875a)
[MEL DISCUSSED]
Article 940. In alternative legacies or devises,
the choice is presumed to be left to – Rules on Validity of Generic L/Ds
 The heir upon whom the obligation to  Generic Legacy – valid EVEN IF no such
give the legacy or devise may be movables exist in the testator’s estate
imposed, or upon his death
 The executor or administrator of the  Generic Devise – valid ONLY IF there exists
estate if no particular heir is so obliged. such an immovable in the testator’s
If the heir, legatee or devisee, who may have estate at the time of his death
been given the choice, dies before making it,
this right shall pass to the respective heirs. Article 942. Whenever the testator expressly
Once made, the choice is irrevocable. leaves the right of choice to the heir, or to the
In the alternative legacies or devises, except as legatee or devisee, the former may give or the
herein provided, the provisions of this Code latter may choose whichever he may prefer.
regulating obligations of the same kind shall be (876a)
observed, save such modifications as may
appear from the intention expressed by the Article 943. If the heir, legatee or devisee
testator. (874a) cannot make the choice, in case it has been
granted him, his right shall pass to his heirs;
Alternative Legacies or Devises but a choice once made shall be irrevocable.
One which provides that, among several things (877a)
mentioned, only 1 is to be given.
Right of Choice
Right of Choice GR: The executor or administrator, acting for the
GR: The one entitled to choose – estate
1. If direct L/D – the estate, through the EXC: If the testator gives the right of choice to –
executor or administrator  The Lee/Dee, or
2. If subsidiary L/D - The heir or Lee/Dee  The heirs on whom the obligation to give
charged the benefit is imposed (in a subsidiary
*These parties are, analogously, in the position L/D)
of debtor.19
EXC: If the testator provides that the Lee/Dee Limitation of Choice
(or any other person) will choose  The choice must be limited to something
which is neither superior nor inferior in
Death of the Chooser Before Choice is Made quality.
If the person who is to choose dies before choice  Rule applies whether the choice belongs
is made: to the executor/administrator or the
 If the choice belonged to the executor or Lee/Dee
administrator – the right is transmitted to
his successor in office Finality of Choice
 If the choice belonged to an heir or A choice, once made, is irrevocable.
Lee/Dee – the right is transmitted to his
own heirs Transmissibility of Right to Choose
If choice belongs to Right is transmitted to
Don’t Forget executor or his successor in the
 The choice is irrevocable once made. administrator & he position
 See Arts. 1199-1205 for rules on dies before making the
alternative obligations. choice
If the choices belongs Right passes to his
Article 941. A legacy of generic personal to the Lee/Dee & he heirs
property shall be valid even if there be no dies before making the
things of the same kind in the estate. choice
A devise of indeterminate real property shall be
valid only if there be immovable property of its Illustrative Example of Generic Legacy
kind in the estate. The will states that the decedent bequeaths X
The right of choice shall belong to the executor with a car, without specifying which. This is valid
or administrator who shall comply with the even if it turns out the decedent does not have
a car to give away; the executor or
19 Article 1200. The right of choice belongs to the debtor, administrator must, instead, buy the car to be
unless it has been expressly granted to the creditor. given to X.
The debtor shall have no right to choose those prestations
which are impossible, unlawful or which could not have been
the object of the obligation. (1132)
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Article 944. A legacy for education lasts until
– Q: X is taking up 2nd year high school but is not
 The legatee is of age, or
 Beyond the age of majority in order that
the legatee may finish some professional,
vocational or general course
 PROVIDED he pursues his course
diligently.
A legacy for support lasts during the lifetime of
the legatee, if the testator has not otherwise
provided.
 If the testator has not fixed the amount
of such legacies, it shall be fixed in
accordance with –
(1) The social standing and the
circumstances of the legatee and
(2) The value of the estate.
If the testator or during his lifetime used to
give the legatee a certain sum of money or
other things by way of support, the same
amount shall be deemed bequeathed,
 UNLESS it be markedly disproportionate
to the value of the estate. (879a)
MEL: Note that in the Family Code, it is
“FINANCIAL” standing, and not social standing,
which is more objective
Legacy for Education
 Duration – either:
o Age of majority (18) or
o The completion of a professional,
vocational, or general course,
whichever comes later – BUT in this
case, only if the legatee pursue his
studies diligently
 Amount –
o Primarily – that fixed by the testator
o Secondarily – that which is proper,
as determined by 2 variables:
 The social standing &
circumstances of the legatee
 The value of the disposable
portion
Legacy for Support
 Duration – the legatee’s lifetime
o UNLESS the testator provides
otherwise
 Amount –
o Primarily – that fixed by the testator
o Secondarily – that which the testator
during his lifetime used to give the
legatee by way of support
 UNLESS markedly
disproportionate to the value
of the disposable portion
o Tertiarily – that which is reasonable,
on the basis of two variables –
 The social standing & 
circumstances of the legatee
 The value of the disposable
portion
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Class Discussion
pursuing it diligently. Will his legacy barred if he
keeps getting delayed so that he is already past
18, but is still in high school?
A: Yes, the legacy will be barred. It will be barred
if he does not pursue it diligently; it applies
even at high school level.
Article 945. If a periodical pension, or a
certain annual, monthly, or weekly amount is
bequeathed, the legatee may petition the court
for –
 The first installment upon the death of
the testator, and
 For the following ones which shall be due
at the beginning of each period;
Such payment shall not be returned, even
though the legatee should die before the
expiration of the period which has commenced.
(880a)
Legacy of Periodic Pension
 Demandability
o Upon the testator’s death, &
o The succeeding ones, at the
beginning of the period without duty
to reimburse should the legatee die
before the lapse of the period
 This should be harmonized with the rules
on the settlement of estates, i.e., the
debts should first be paid before any
testamentary grants can be complied with
o UNLESS the legatee files a bond
under Rule 90, Sec. 1 of the Rules of
Court
o HOWEVER, if the legacy should
prove to not be inofficious, the date
of effectivity shall retroact to the
decedent’s death
Article 946. If the thing bequeathed should be
subject to a usufruct, the legatee or devisee
shall respect such right until it is legally
extinguished. (868a)
Article 947. The legatee or devisee acquires a
right to the pure & simple legacies or devises
from the death of the testator, & transmits it to
his heirs. (881a)
Article 948. If the legacy or devise is of a
specific & determinate thing pertaining to the
testator, the legatee or devisee acquires, [upon
the death of the testator], –
1. The ownership thereof, as well as
2. Any growing fruits, or
3. Unborn offspring of animals, or
4. Uncollected income
BUT not the income which was due
& 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, & shall be benefited by capita.
its increase or improvement, without prejudice Conditional Upon the happening of the
to the responsibility of the executor or (suspensive) condition, unless the
administrator. (882a) testator otherwise provides

Article 949. If the bequest should not be of a Example from Paras

specific & determinate thing, but is generic or Q: T in his will gave D a parcel of land 100 sqm.
of quantity, its fruits & interests from the time in area. At his death, T left 3 parcels of land,
of the death of the testator shall pertain to the each of which was 100 sqm. Two weeks after T’s
legatee or devisee if the testator has expressly death, the executor made his choice. Aside from
so ordered. (884a) delivering the land to the devisee, what fruits
must also be given?
Demandability of L/Ds A: The fruits accruing to the land from the time
Type of L/D When Demandable the choice was made. All fruits already gathered
Pure & determinate Upon testator’s death previous to the choice belong to the estate. All
Pure & generic growing fruits must of course be given to the
Suspensive term Upon the arrival of the devisee.
term HOWEVER, if the testator has expressly ordered
Conditional Upon the happening of so, then all those accruing from his death must
(suspensive) the condition be given.

When Ownership Vests in L/Ds Class Discussion

Type of L/D When Ownership Q: Who gets the fruits of the property when
Vests there is a suspensive term?
A: The estate, until the term arrives. When the
Pure & determinate Upon testator’s death
term arrives, the fruits thereafter accruing will
Pure & generic a) If from the
pertain to the Lee/Dee.
testator’s estate –
upon the testator’s
Q: What about the fruits between the time the
death
testator dies until the time the suspensive term
b) If acquired from a
happens. Who gets the fruits?
third person – upon
A: These will pertain to the estate, until the term
acquisition
arrives. When the term arrives, the fruits
Suspensive term Upon the arrival of the
thereafter accruing will pertain to the Lee/Dee.
term, but the right to
it vests upon the
Q: What if the property subject to a suspensive
testator’s death
term is producing rent, & between the time the
Conditional Upon the testator’s testator died & up to the time the property is
(suspensive) death, if the condition actually delivered there was a lot of rent earned.
is fulfilled Who will the fruits pertain to?
A: It will go to the estate. The rental is a civil
Fruits of L/Ds fruit. If it accrues when the Lee/Dee has yet to
Type of L/Ds When it Pertains to L/D acquire ownership, then the Lee/Dee will not get
Pure & Upon the testator’s death those fruits. They will only get the fruits when
determinate they get the property to be inherited itself, as it
Pure & generic Upon determination, unless is only then that ownership vests upon them.
testator provides otherwise
Q: “Not the income undue & unpaid before the
MEL: The default mode is no testator’s death” – What does this mean?
entitlement to fruits or A: Only income accrued after the death shall be
income unless the testator given to the Lee.
says so, until the moment
that the thing finally Article 950. If the estate should not be
becomes determinate. sufficient to cover all the legacies or devises,
Suspensive Upon the arrival of the term their payment shall be made in the ff. order:
term (RP-SED-PRO RATA – RP said “pro rata!”)
*Although the law does not (1) Remuneratory legacies or devises;
so explicitly declare, the (2) Legacies or devises declared by the
descendants of illegitimate testator to be Preferential;
children shall inherit per (3) Legacies for Support;
capita if ALL the illegitimate (4) Legacies for Education;
children renounce.
If these descendants can
inherit per stirpes, they can,
in proper cases, inherit per
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 (5) Legacies or devises of a specific,
Determinate thing which forms a part of Article 952. The heir, charged with a legacy or
the estate; devise, or the executor or administrator of the
(6) All others PRO RATA. (887a) [Asked by estate, must deliver the very thing bequeathed
MEL] if he is able to do so & cannot discharge this
obligation by paying its value.
Rules Laid Down in Art. 950 Legacies of money must be paid in cash, even
This article lays down an order of preference though the heir or the estate may not have
among L/Ds in case the estate is not sufficient any.
for all of them. The expenses necessary for the delivery of the
thing bequeathed shall be for the account of
Art. 911 vis-à-vis Art. 950 the heir or the estate, but without prejudice to
 Art. 911 also contains a rule for reduction the legitime. (886a)
of L/Ds & the order of preference there is
different. Article 953. The legatee or devisee cannot
 Art. 911 provides that – take possession of the thing bequeathed upon
o All the non-preferred L/Ds will be his own authority, but shall request its delivery
reduced pro rata, & & possession of –
o The preferred L/Ds are reduced last.  The heir charged with the legacy or
o This is different from Art. 950 devise, or
 How to reconcile both Articles –  The executor or administrator of the
When Art. If reductions have to be estate should he be authorized by the
911 applies made because the court to deliver it. (885a)
legitimes have been
impaired, i.e., if the L/Ds Delivery of the Thing Bequeathed
have exceeded the  The L/D vests upon the testator’s death,
disposable portion but actual delivery does not take place at
When Art. If the reason for the that time.
950 applies reduction is NOT the  The ff. must first occur:
impairment of legitimes; 1. Debts first have to be paid,
examples – 2. Legitimes have to be determined,
 There are no legitimes 3. The testamentary dispositions
because there are no (including L/Ds) must be
compulsory heirs; or computed, lest they impair the
 The legitimes have legitimes.
already been satisfied  It is only after these steps that the
through donations inter beneficiaries of the will can take
vivos. possession.

Class Discussion Article 954. The legatee or devisee cannot

Q: What is meant by a remuneratory L/Ds?
A: These are the ones that come with a
consideration. It is in the form of a payment;
that is why it is given priority.
Article 951. The thing bequeathed shall be
delivered
 With all its accessories & accessories &
 In the condition in which it may be upon
the death of the testator. (883a)
Obligation to Deliver
The obligation to deliver the accessions &
accessories exists even if the testator does not
explicitly provide for it.20
Crucial Time for the Application of Art. 951
The crucial time is the testator’s death, as that
is when successional rights vest.
 Thus, the thing must be delivered in the
condition in which it is at that time.
accept a part of the legacy or devise &
repudiate the other, if the latter be onerous.
Should he die before having accepted the
legacy or devise, leaving several heirs, some of
the latter may accept & the others may
repudiate the share respectively belonging to
them in the legacy or devise. (889a)
Acceptance
GR: Acceptance may be total or partial
EXC: If the L/D is partly onerous & partly
gratuitous, the recipient can not accept the
gratuitouspart & renounce the onerous part
 HOWEVER, anyother combination is
permitted
Acceptance or Repudiation by heirs of L/D
If the L/D dies before accepting or renouncing,
his heirs shall exercise such right as to their pro-
indiviso share, & in the same manner as
outlined above.

20 Art. 1166. The obligation to give a determinate thing Class Discussion

includes that of delivering all its accessions and accessories,
even though they may not have been mentioned. (1097a)
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Q: If X receives a legacy and also receives an
inheritance as an heir from the decedent, may
he accept one and repudiate the other?
A: Yes.
Q: Is the only time when X cannot make a
choice be when the thing is partly onerous and
partly gratuitous?
A: Yes.
Q: What is an example of an onerous legacy?
A: X bequeaths Y with X’s apartment in Rockwell
but tells Y that Y must pay all the related real
estate taxes. Also, another example is if X tells Y
that Y must house X’s mother until X’s mother
dies.
Article 955. The legatee or devisee of two
legacies or devises, one of which is onerous,
cannot renounce the onerous one & accept the
other.
 If both are onerous or gratuitous, he shall
be free to accept or renounce both, or to
renounce either.
 BUT: If the testator intended that the two
legacies or devises should be inseparable
from each other, the legatee or devisee
must either accept or renounce both.
Any compulsory heir who is at the same time a
legatee or devisee may
 Waive the inheritance & accept the
legacy or devise, or
 Renounce the latter & accept the former,
or
 Waive or accept both. (890a) [Asked by
MEL]
2 L/Ds to the Same Recipient [Asked by MEL]
If both
gratuitous The recipient may accept or
If both renounce either or both.
onerous
If one is The recipient cannot accept
gratuitous, & the gratuitous & renounce the
the other is onerous.
onerous BUT any other combination is
permitted
L/D to one who is also a compulsory heir
The recipient may accept either or both, i.e., the
L/D & the legitime.
Effect if will provides otherwise in Art. 954 &
955
All of the rules above apply in the absence of a
stipulation in the will providing otherwise. The
testator’s wishes are supreme.
Article 956. If the legatee or devisee cannot
or is unwilling to accept the legacy or devise,
or if the legacy or devise for any reason should
become ineffective, it shall be merged into the
mass of the estate, except in cases of
substitution and of the right of accretion.
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(888a)
Rules in Case of Repudiation by or Incapacity of
Lee/Dee
 Primarily – substitution
 Secondarily – accretion
 Tertiarily – intestacy
*J. Hofileña said this order is very important.
Article 957. The legacy or devise shall be
without effect:
(1) If the testator transforms the thing
bequeathed in such a manner that it
does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any
cause alienates the thing bequeathed or
any part thereof, it being understood that
in the latter case the legacy or devise
shall be without effect only with respect
to the part thus alienated.
 If, after the alienation, the thing
should again belong to the testator,
even if it be by reason of nullity of
the contract, the legacy or devise
shall not thereafter be valid, unless
the reacquisition shall have been
effected by virtue of the exercise of
the right of repurchase;
(3) If the thing bequeathed is totally lost
during the lifetime of the testator, or
after his death without the heir's fault.
 Nevertheless, the person obliged to
pay the legacy or devise shall be
liable for eviction if the thing
bequeathed should not have been
determinate as to its kind, in
accordance with the provisions of
Art. 928. (869a)
GR: Instances when the L/D is revoked by
operation of law [Asked by MEL]
 Transformation — e.g., the testator
converts a plantation into a fishpond.
 Alienation — the alienation by the testator
may be onerous or gratuitous.
o The alienation revokes the L/D
even if for any reason the thing
reverts to the testator.
 Total loss — this will be a cause for
revocation only if it takes place before the
testator’s death.
o Fortuitous loss after the testator’s
death will not constitute revocation
 This is true despite the
wording of par. 3 of Art. 857,
because legally the
disposition takes effect upon
death.
o Therefore, fortuitous loss after the
testator’s death will simply be an
instance of “res perit domino'' and
will be borne by the Lee/Dee
Exceptions
1. If the reversion is caused by the
annulment of the alienation & the cause
for annulment was vitiation of consent on
the grantor’s part, either by reason of
incapacity or of duress
2. If the reversion is by virtue of redemption
in a sale with pacto de retro
Class Discussion
Q: What is meant by alienation?
A: When the testator donates or sells the
property to someone else.
Q: X, decedent, sold a property to Y. Y then lost
the property in a gambling game, so that A
owned the property. X managed to buy it back
from A. Is the devise reinstated?
A: NO. The devise is not reinstated. This falls
under the general rule that when a testator
reacquires the property the property will not
once more be considered an effective devise.
Article 958. A mistake as to the name of the
thing bequeathed or devised, is of no
consequence, if it is possible to identify the
thing which the testator intended to bequeath
or devise. (n)
Article 959. A disposition made in general
terms in favor of the testator's relatives shall
be understood to be in favor of those nearest in
degree. (751)
Application of Art. 959
Art. 959 applies not only to Lee/Dees, but also
to all testamentary heirs.
Relatives Referred to in Art. 959
The term “relatives” extends only up to the 5 th
degree of consanguinity (the limit in intestacy).
 BUT representation (a feature of intestate
succession) does not operate in the
application of this article
Institution of Relatives of Another Person
The institution of relatives of another person,
not of the testator, does not fall within the ambit
of this article.
 BUT: An institution (by way of simple
substitution, of the legatee’s
“descendientes legitimos” was valid and
covered all legitimate descendants, i.e.,
children, grandchildren, etc. per capita, in
accord with Art. 846 (Belen v. BPI)
CHAPTER 3. Legal or Intestate Succession
SECTION 1. General Provisions.
*Article 960. Legal or intestate succession
takes place:
(1) If a person dies –
 Without a will, or
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 With a void will, or
 One which has subsequently lost
its validity;
(2) When the will does not institute an heir
to (or dispose of) all the property
belonging to the testator.
 In such case, legal succession shall
take place only with respect to the
property of which the testator has
not disposed;
(3) If [any of the ff. occur --]
 The suspensive condition attached
to the institution of heir does not
happen or is not fulfilled,
 The heir dies before the testator, or
 The heir repudiates the
inheritance, there being no
substitution, and no right of
accretion takes place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in
this Code. (912a)
Intestate Succession Defined by Drafters of the
Civil Code
Intestate or legal succession takes place by
operation of law in the absence of a valid will.
Art. 960 (1)
There are three instances contained in this par.
which lead to the same result, i.e., there is no
will.
 A will that has subsequently lost its
validity is one that has been revoked
without a later one taking its place.
Art. 960 (2)
Intestacy here may be total or partial.
Art. 960 (3)
Intestacy here may also be total or partial.
 Dependent on the extent of the
disposition that turns out to be inoperative
Art. 960 (4)
Intestacy here may also be total or partial.
 Incapacity to succeed is found in Art.
1027, 1028 & 103221
21 Art. 1027. The ff. are incapable of succeeding:
(1) The priest who heard the confession of the testator during
his last illness, or the minister of the gospel who extended
spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gospel within
the fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister
may belong;
(3) A guardian with respect to testamentary dispositions given
by a ward in his favor before the final accounts of the
guardianship have been approved, even if the testator should
die after the approval thereof; nevertheless, any provision
made by the ward in favor of the guardian when the latter is
his ascendant, descendant, brother, sister, or spouse, shall be
valid;
(4) Any attesting witness to the execution of a will, the
spouse, parents, or children, or any one claiming under such
witness, spouse, parents, or children;
Other Causes of Intestacy
1. Happening of resolutory condition
2. Expiration of resolutory term
3. Preterition
Class Discussion
Q: What does legal or intestate succession
mean?
A: It means the type of succession that takes
place by operation of law in the absence of a
valid will.
Q: Why is the heir in intestate succession called
a legal heir?
A: This is because he is an heir by operation of
law.
Q: If he is an heir by virtue of a last will and
testament, what is he called?
A: He is called a testamentary heir.
Q: What is an example of a resolutory term in a
will?
A: X states in his will that Y will be his heir to a
property for 10 years. At the end of the 10-year
period, the property will be divided using
intestate rules.
CASE: MACROHON V. SAAVEDRA (1927)
Facts: Macario & Victoria, husband & wife,
executed a joint will. The two had no kids. The
provisions of the will provide that, in the event
that Macario dies first, a list of lots would be
given to his two favorite nephews. Meanwhile, if
Victoria dies first, a parcel of land would go to
her sister.
Victoria died first. As such, the provisions as to
Victoria’s wishes were implemented. However, it
(5) Any physician, surgeon, nurse, health officer or druggist
who took care of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by
law to inherit. (745, 752, 753, 754a)
Art. 1028. The prohibitions mentioned in Art. 739, concerning
donations inter vivos shall apply to testamentary provisions.
(n)
Art. 1032. The ff. are incapable of succeeding by reason of
unworthiness:
(1) Parents who have abandoned their children or induced
their daughters to lead a corrupt or immoral life, or attempted
against their virtue;
(2) Any person who has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or
ascendants;
(3) Any person who has accused the testator of a crime for
which the law prescribes imprisonment for six years or more,
if the accusation has been found groundless;
(4) Any heir of full age who, having knowledge of the violent
death of the testator, should fail to report it to an officer of the
law within a month, unless the authorities have already taken
action; this prohibition shall not apply to cases wherein,
according to law, there is no obligation to make an accusation;
(5) Any person convicted of adultery or concubinage with the
spouse of the testator;
(6) Any person who by fraud, violence, intimidation, or undue
influence should cause the testator to make a will or to
change one already made;
(7) Any person who by the same means prevents another
from making a will, or from revoking one already made, or
who supplants, conceals, or alters the latter's will;
(8) Any person who falsifies or forges a supposed will of the
decedent. (756, 673, 674a)
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turns out that there was a property that was not
disposed of in the provisions of the will. The
probate court partitioned this latter property
according to the rules of intestate succession.
Counsel for Macario opposed the grant of the
property to the intestate heirs of Victoria; he
claimed that, as there was a will, the will’s
disposition should be followed exclusively. As
such, since the will stated that the properties
should also partially go to Macario’s beloved
nephews, it should go to the latter rather than
Victoria’s intestate heirs. Is this contention
valid?
Held: NO. The rule of indivisibility of a testator’s
will does not hold in the Philippine jurisdiction.
This is evident from the provisions of Art. 764 &
912. Thus, a person having executed a will may
die partially intestate.
Furthermore, as regards the conditional legacy
in favor of the beloved nephews of Macario, the
conditional legatee does not acquire the legacy,
if the event on which it depends has not
occurred, in which case the legacy will pass to
the persons named to succeed the testator in
accordance with law. In other words, legal or
intestate succession will take place as to that
legacy.
Finally, when a will executed jointly by husband
& wife provides that in case of the death of the
husband before the wife, certain relatives will
inherit specific property, & if any of said
relatives die before the husband the survivor
will inherit all, the acquisition of the property by
said relatives depends upon the husband’s
dying before the wife, the last part of said
testamentary provision being a substitution of
legatees in case some of them die before the
husband.
Article 961. In default of testamentary heirs,
the law vests the inheritance, in accordance
with the rules hereinafter set forth –
 In the legitimate & illegitimate relatives
of the deceased,
 In the surviving spouse, and
 In the State. (913a)
Article 962. In every inheritance, the relative
nearest in degree excludes the more distant
ones, saving the right of representation when it
properly takes place.
Relatives in the same degree shall inherit in
equal shares, subject to the provisions of Art.
1006 with respect to relatives of the full and
half blood, and of Art. 987, par. 2, concerning
division between the paternal and maternal
lines. (912a)
Exclusion & Concurrence in Intestacy
 Intestacy operates on the same principles
as succession to the legitime.
 The two principles, operate sometimes
simultaneously, sometimes singly
Basis of Intestate Succession
 The presumed will of the decedent
 Manresa: “Love, it is said, first descends,
then ascends, and, finally, spreads
sideways.” So, first to the kids, then to the
parents, then to the collaterals.
Basic Rules of Intestacy
1. The rule of preference of lines
 The 3 lines are: the ascending, the
descending, & the collateral
 The descending excludes the
ascending and the collateral, and
the ascending excludes the
collateral
2. The rule of proximity in degree
 The nearer exclude the more
remote, without prejudice to the
right of representation
3. The rule of equality among relatives of the
same degree
 If the nearer exclude the more
remote, then those of equal degree
should inherit in equal shares
 Exceptions:
1) The rule of preference of lines;
2) The distinction between
legitimate & illegitimate filiation
(2:1)
3) The rule of division by line in the
ascending line
4) The distinction between full-
blood and half-blood relationship
among brothers and sisters, as
well as nephews and nieces
5) Representation
6) Concurrence of nephews/nieces
& aunts/uncles
CASE: BAGUNU V. PIEDAD (2000)
Facts: Ofelia is the daughter of the 1st cousin of
the decedent, a collateral relative of the 5th civil
degree. Meanwhile, Pastora, maternal aunt of
the decedent, is a collateral relative of the 3rd
civil degree of the decedent. The probate court
declared Pastora to be the sole heir of the
decedent. Ofelia protested that she should also
be allowed to inherit alongside Pastora. Ofelia
thus posed this question: Does the rule of
proximity in intestate succession find
application among collateral relatives?
Held: YES. The rule on proximity is a concept
that favors the relatives nearest in degree to the
decedent and excludes the more distant ones,
except when and to the extent that the right of
representation can apply.
The right of representation is a rule by which a
more distant blood relative of a decedent is, by
operation of law, raised to the same place and
degree of relationship as that of a closer blood
relative of the same decedent. The
representative thereby steps into the shoes of
the person he represents & succeeds, not from
the latter, but from the person to whose estate
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the person represented would have succeeded.
In the collateral line, the right of representation
may only take place in favor of the children of
brothers or sisters of the decedent when such
children survive with their uncles & aunts.
However, the right of representation does not
apply to "collateral relatives within the 5th civil
degree" (to which group both Ofelia & Pastora
belong). Among collateral relatives, except only
in the case of nephews and nieces of the
decedent concurring with their uncles or aunts,
the rule of proximity (Art. 962) is an absolute
rule. In determining the degree of relationship of
the collateral relatives of the decedent, Art. 966
gives direction.
Thus, Pastora, being a relative within the 3rd
civil degree, excludes Ofelia, a relative of the
5th degree, from succeeding ab intestato to the
estate of the decedent.
SUBSECTION 1. Relationship.
Article 963. Proximity of relationship is
determined by the number of generations.
Each generation forms a degree. (915)
Article 964. A series of degrees forms a line,
which may be either direct or collateral.
A direct line is that constituted by the series of
degrees among ascendants & descendants.
A collateral line is that constituted by the series
of degrees among persons who are not
ascendants &descendants, but who come from
a common ancestor. (916a)
Article 965. The direct line is either
descending or ascending.
The former unites the head of the family with
those who descend from him.
The latter binds a person with those from
whom he descends. (917)
Article 966. In the line, as many degrees are
counted as there are generations or persons,
excluding the progenitor.
In the direct line, ascent is made to the
common ancestor. Thus, the child is 1 degree
removed from the parent, 2 from the
grandfather, & 3 from the great-grandparent.
In the collateral line, ascent is made to the
common ancestor & 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, &
so forth. (918a)
Collateral—Article 964, par. 3.
 Direct and Collateral. — Importance of
distinction: The direct is preferred over the
collateral.
 Descending direct and ascending direct.
—Importance of distinction: The
 descending is preferred over the Grandchildren of the nephew/niece
ascending. Uncle/auntie
Children of uncle/auntie
Computation of Degrees Grandchildren of the uncle/auntie
 Direct Line — There is no legal limit to the Children of the great grandparent
number of degrees for entitlement to Grandchildren of the great grandparent
intestate succession. Sibling of the great grandparent
o Mode of counting degrees in the
direct line: Q: A-B-C are direct descendants of one another.
 One generation = 1 degree If B renounces his inheritance, can C represent
 Parent-child = 1 degree; him?
 Grandparent-grandchild = 2 A: No.
degrees; Q: If C renounces, can he represent B?
 Great-grandparent-great- A: Yes.
grandchild = 3 degrees; Q: If B renounces, can C represent B?
 So on & so forth. A: No.
 Collateral line — Computation of degrees
is particularly important in the collateral Article 967. Full blood relationship is that
line because intestate succession extends existing between persons who have the same
only to the 5th degree of collateral father & the same mother. Half blood
relationship relationship is that existing between persons
o Mode of counting degrees in the who have the same father, but not the same
collateral line: mother, or the same mother, but not the same
 From one reference point, father. (920a)
ascend to nearest common
ancestor [If there are more Importance of Distinction Between Full-Blood &
than one, choose any one]. Half-Blood Relationship
 Then descend to the other  With reference to brothers & sisters and
reference point. nephews & nieces, there is a ratio of 2:1
 Number of generations for full-blood & half-blood relationship
constituting the ascent & respectively
the descent is the degree of  With respect to other collateral relatives,
collateral relationship. the full-blood & half-blood relationship is
o Collaterals by degrees [asked by not material.
MEL] –
Degrees Relatives *Article 968. If there are several relatives of
1st None the same degree, and one or some of them are
degree unwilling or incapacitated to succeed, his
2nd Brothers/sisters portion shall accrue to the others of the same
degree degree, save the right of representation when
3rd 1) Uncles/Aunts it should take place. (922)
degree 2) Nephews/Nieces
4th 1) First cousins Accretion in Intestacy
degree 2) Brothers/Sisters of a There is accretion in intestacy among heirs of
grandparent (i.e., the same degree, in case of predecease,
grand- uncles/grand- incapacity, or renunciation of any one of them.
aunts)  BUT: In case of predecease or incapacity,
3) Grandchildren of a representation, if proper, will prevent
brother/sister (i.e., accretion from occurring.
grand-  Relatives must be in the same kind of
nephews/grand- relationship — For accretion to take place
nieces) the heirs involved must be in the same
5th 1) Children of a first kind of relationship to the decedent.
degree cousin o Follows the principle of preference
2) First cousins of a of lines
parent o Ex. There can be no accretion
3) Brothers/sisters of a among a grandchild, a grandparent
great-grandparent and a brother of the decedent (even
4) Great grandchildren if they are all related to him in the
of a brother/sister. 2nd degree) because they are not
inheriting together in the first place.
Relatives within 5th civil degree as listed by MEL
Nephew/niece
Children of the nephew/niece Class Discussion

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Q: Which has priority in this provision,
representation or accretion?
A: Representation is preferred by the Code.
Q: What if the estate is P300,000? There are 3
heirs. One, however, refuses or is unwilling or
incapacitated to accept. What happens to his
portion?
A: If there is no right of representation, the 2
remaining heirs will get his share and get
P150,000 each.
Q: Would you apply the same rule if the 2 heirs
left are the father and the son?
A: NO. The heirs must belong to the same
degree and belong to the same line as well, due
to the preference of lines. Though father and
son are both first degree heirs, there is a
preference for descendants.
Article 969. If the inheritance should be
repudiated by the nearest relative, should
there be one only, or by all the nearest
relatives called by law to succeed, should there
be several, those of the following degree shall
inherit in their own right & cannot represent
the person or persons repudiating the
inheritance. (923)
Effect of Renunciation by All in the Same
Degree
The right of succession should first be passed on
the heirs in succeeding degrees (in successive
order) BEFORE the next line can succeed
 Follows the rule of preference of lines
Descending line If all the descendants of a
first certain degree renounce,
succession passes to the
descendants of the next
degree, & so on, ad
indefinitum
Ascending line If there is no one left in the
next descending line, the heirs
in the ascending acquire
the right of succession,
again in order of degrees of
proximity
Collateral line ONLY if all the descendants
first & ascendants renounce will
the collateral relatives
acquire the right
succeed
Predecease or Incapacity by All in the Same
Degree
 This eventuality is not provided for by this
article
 BUT: The rules above outlined are equally
applicable in such a situation
o EXC: In cases where representation
is proper, i.e., in the descending line
Representation Never Applies in Universal
Renunciation
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There is no representation in renunciation.
Class Discussion
Q: If an original heir dies, where will his share
go?
A: If there is only 1 heir in that degree, it will go
to the next degree. If there are several relatives
remaining in the same degree, all must
renounce.
Q: What if there are 3 children, and each of
them has 2 children of his own. One of the 3
children, X, dies ahead of the testator. Who will
get the deceased child’s share?
A: The 2 children of X will inherit through the
right of representation. The 2 children will share
the X’s share equally.
Q: What is the difference of per capita and per
stirpes?
A: Per capita is per individual, while stirpes is
per branch. The rule in intestacy is per branch.
The inheritance will thus go to the relatives of
the same degree before going to the next.
Q: What if there are 3 children of the decedent,
all of whom renounce, and they themselves
have 2 children each. Who will inherit?
A: The 2 children each of the 3 children will
inherit per capita in their own right & not by the
right of representation.
SUBSECTION 2. Right of Representation.
*Article 970. Representation is a right created
by fiction of law, by virtue of which the
representative is raised to the place & the
degree of the person represented, & acquires
the rights which the latter would have if he
were living or if he could have inherited. (942a)
Representation Defined
It is a right created by fiction of law, by virtue of
which the representative is: (PDA)
 Raised to the Place & the Degree of the
person represented, &
 Acquires the rights which the latter would
have if he were living or if he could have
inherited.
to Instances When Representation Occurs
1. Predecease
2. Incapacity or Unworthiness
3. Disinheritance *MEL: Precisely, this is why
the grounds for disinheritance and
incapacity are the same
Note that there is right of representation in
testacy and intestacy. In testacy, all three
grounds are available. In intestacy, there is no
disinheritance as ground, since there is no will
to begin with.
CASE: ANG V. PACUNIO (2015)
Facts: The Pacunios allege to be the
grandchildren of Udiaan, the owner of the
disputed parcel of land. They filed suit to nullify
a sale of said lot to Ang; apparently, the lot had
been sold to Ang by an imposter of Udiaan 20
year after the latter already died. The lower
courts held that the Pacunios were not real
parties-in-interest to the case; being the
grandchildren of Udiaan, they would only have a
right to succeed if their mother, one of Udiaan’s
children, predeceased Udiaan. However, this
fact was never established by the grandchildren.
Nevertheless, the courts nullified the sale, given
that Udiaan was already dead when the sale
happened. Was this correct?
Held: NO. The Pacunios are not real parties-in-
interest & thus have no standing to nullify the
deed of sale. For the right of representation to
be available to the Pacunios, they should have
shown, first, that their mother: (a) predeceased
Udiaan, (b) is incapacitated to inherit, or (c) was
disinherited, if Udiaan died testate. However,
the Pacunios failed to establish this. This being
the case, no relief should have been awarded by
the lower courts to the Pacunios. No relief can
be granted to one who is not party to the case.
Instances When Representation Does Not Occur
Renunciation (Art. 977)
Kinds of Succession in Which Representation
Operates
1. The legitime
 There is no express provision on
representation in the legitime,
except Art. 923,22 in case of
disinheritance
2. Intestacy
*NOTE: There is no representation in
testamentary succession.
In What Lines Does Representation Obtain
[Asked by MEL]
 With respect to the legitime – in the
direct descending line only
 With respect to intestacy
o In the direct descending line
o In 1 instance, in the collateral line –
nephews & nieces representing
brothers & sisters of the deceased
[Asked by MEL]
Q: Is this only the legitimate line that can be
represented?
A: Yes. A-B-C must all be legitimate.
Q: Can C represent B if C is illegitimate?
A: No, because C cannot represent B because C
is illegitimate.
Q: How about if A-B-C are all illegitimate?
22 Art. 923. The children & descendants of the person
disinherited shall take his or her 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.
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A: Then they can all represent one another.
With respect to Intestacy
Q: In collateral relatives, can you go further
down?
A: No; you stop at the level of the nephews and
nieces.
Q: Up to what line of consanguinity is intestacy?
A: 5th degree of consanguinity.
Representation by Illegitimate Children [Asked
by MEL]
1. If the child to be represented is legitimate
— only legitimate children/descendants
can represent him (Art. 992)
2. If the child to be represented is
illegitimate — both legitimate &
illegitimate children/descendants can
represent him (Arts. 902, 989, 990).
 Ex. X has a legitimate child, A, &
illegitimate child B. Both of them in
turn have 1 illegitimate & 1
legitimate child. If both A & B
predecease X –
o A, being legitimate can be
represented only by his 1
legitimate child.
o B, being illegitimate, can be
represented by both his kids.
Representation of & by the Adopted Child
[Asked by MEL]
An adopted can neither represent nor be
represented.
CASE: TEOTICA V. DEL VAL
Facts: When Maria Mortera died, she left a will
wherein she disposed of P20,000 to Rene,
husband of Maria’s niece, Josefina. Josefina was
made sole & universal heir.
Ana, claiming to be an adopted child of
Francisca Mortera, a deceased sister of the
testatrix Maria, as well as an acknowledged
natural (i.e., illegitimate) child of Jose Mortera, a
deceased brother of the same testatrix, filed an
opposition to the probate of the will.
Vicente filed a motion to dismiss the opposition
of Ana, alleging that the oppositor had no legal
personality to intervene. The probate court,
after due hearing, allowed the oppositor to
intervene as an adopted child of Francisca.
Vicente & the other heirs continue to claim that
Ana has no personality to intervene. Does Ana
have a right to intervene?
Held: NO. It is a well-settled rule that in order
that a person may be allowed to intervene in a
probate proceeding he must have an interest in
the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant
of the estate; & an interested party has been
defined as one who would be benefited by the
estate (i.e., an heir or creditor).
FIRST, Ana does not have legal personality to
use if based on the will, as she was not named
therein as an heir.
SECOND, assuming the will is held to be
inoperative, Ana would STILL not be entitled to
intervene. Only legal heirs are benefited by the
right of representation. The law does not give
Ana any right to succeed to the estate of the
deceased sister of both Jose & Francisca. And
this is so because being an illegitimate child she
is prohibited by law from succeeding to the
legitimate relatives of her natural father.
The oppositor cannot also derive comfort from
the fact that she is an adopted child of Francisca
Mortera because under the law the relationship
established by adoption is limited solely to the
adopter & the adopted & does not extend to the
relatives of the adopting parents or of the
adopted child except only as expressly provided
for by law. Hence, no relationship is created
between the adopted & 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.
It thus appears that Ana has no right to
intervene either as testamentary or as legal heir
in this probate proceeding contrary to the ruling
of the court a quo.
Class Discussion
Q: What if the son has an adopted child? Can
the adopted child represent him in this
inheritance?
A: NO. The adopted child can neither represent
the son or be represented. The relationship
forged by adoption is only between the adopted
child & the adopting parents.
Article 971. The representative is called to
the succession by the law & not by the person
represented. The representative does not
succeed the person represented but the one
whom the person represented would have
succeeded. (n)
Rules on Qualification
1. The representative must be qualified to
succeed the decedent (Art. 973).
 Rationale: Art. 971.
2. BUT the representative need not be
qualified to succeed the person
represented (Art. 971).
3. The person represented need not be
qualified to succeed the decedent
 Reason why representation is
taking place is that the person
represented is not qualified,
because of predecease, or
incapacity, or disinheritance.
Article 972. The right of representation takes
place in the direct descending line, but never in
the ascending.
In the collateral line, it takes place only in favor
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of the children of brothers or sisters, whether
they be of the full or half blood. (925)
In What Line does Representation Obtain
1. With respect to the legitime — in the
direct descending line only (Art. 972).
2. With respect to intestacy —
a. In the direct descending line
b. In only 1 instance, collateral –
nephews & nieces representing
brothers & sisters of the deceased
(Art. 975)
Class Discussion
Q: In the collateral line, who can inherit by the
right of representation?
A: The children of brothers & sisters, where the
latter predecease or become incapacitated.
Q: What if there are no brothers & sisters, but
only nephews and nieces?
A: The nephews and nieces will inherit by their
own right.
Q: If any of the nephews or nieces should also
predecease the decedent, can his or her
children represent him by right of
representation?
A: NO. Only nephews or nieces may inherit
according to the law and thus does not extend
the right of representation to their descendants.
However, they MUST survive together with their
brothers and sisters to inherit.
Q: What if the remaining children are 3 nephews
and the children of a predeceased niece? Can
the grandnieces inherit by the right of
representation?
A: NO. The law only mentions that nephews and
nieces may inherit by the right of
representation.
Article 973. In order that representation may
take place, it is necessary that the
representative himself be capable of
succeeding the decedent. (n)
Article 974. Whenever there is succession by
representation, the division of the estate shall
be made per stirpes,23 in such manner that the
representative or representatives shall not
inherit more than what the person they
represent would inherit, if he were living or
could inherit. (926a)
How Representation Operates
Per stirpes — the representative/s receive only
what the person represented would have
received.
 If there is more than one representative in
the same degree, then divide the portion
equally, without prejudice to the
23 Per stirpes means per branch.
 distinction between legitimate and have 2 kids each. How is X’s estate to be
illegitimate children, when applicable. divided if it is worth P600,000?
A1: The apportioning is as follows –
Article 975. When children of one or more  A – 225K
brothers or sisters of the deceased survive,  B – 225K
they shall inherit from the latter by  2 kids of C – 37.5K each
representation, if they survive with their uncles  2 kids of D – 37.5K each
or aunts.
 BUT if they alone survive, they shall Q2: Supposing X dies intestate, all the other
inherit in equal portions. (927) factors being the same, how is X’s estate to be
apportioned?
Representation by Grandchildren & A2: The apportioning is as follows –
Representation by nephews/nieces: Difference  A – 150K
in Rule  B – 150K
If all the children are The grandchildren still  2 kids of C – 75K each
disqualified inherit by  2 kids of D – 75K each
representation (Art.
982) SECTION 2. Order of Intestate Succession
If all the The nephews/nieces
brothers/sisters are inherit per capita INTESTATE HEIRS
disqualified
*Note: If only some, not all children or 1. Legitimate Children/Descendants (LC)
brothers/sisters are disqualified, the rule is the 2. Legitimate Parents/Ascendants (LP)
same. 3. Illegitimate Children/Descendants (IC)
4. Illegitimate Parents (IP)
Article 976. A person may represent him 5. Surviving Spouse (SS)
whose inheritance he has renounced. (928a) 6. Brothers, Sisters, Nephews, Nieces (BSNN)
7. Other Collaterals — to the 5th degree (O)
Representation by a Renouncer 8. State (S)
 Although a renouncer cannot be
represented, he can represent the person Note: The first 5 classes of intestate heirs are
whose inheritance he has renounced also compulsory heirs. Consequently:
 Reason – Art.971: “The representative 1. There is, to a considerable extent, an
does not succeed the person represented overlapping of compulsory & intestate
but the one whom the person represented succession; i.e., the legitime & the
would have succeeded.” intestate portions merge.
2. There is a very close parallel between the
Article 977. Heirs who repudiate their share rules of compulsory succession & those of
may not be represented. (929a) intestate succession.

Class Discussion Class Discussion

Q: How many degrees away from the person Q: Who are the intestate heirs who are also
represented may one having the right of compulsory heirs?
representation be? A: These are:
A: He can only be raised by one degree, one 1. Legitimate Children
degree higher than him, and not 2 or more 2. Illegitimate Children
degrees. 3. Legitimate Parents
BUT Tolentino said that a great grandson could 4. Illegitimate Parents
be called to the representation & inherit from 5. Surviving Spouse
his great grandfather. This is true even if the
great grandfather dies even before the great Q: Who are the concurring heirs?
grandson is born. But that’s Tolentino. For A: The surviving spouse & the illegitimate
Justice Hofileña thinks that this is NOT allowed. children.
The great grandson should be conceived or
born, at the minimum, by the time the great INTESTACY
grandfather dies.
Rules of Exclusion and Concurrence
Illustrative Example: Kat Answered This So She Decedent Heirs
Coulda F*cked Up Legitimate Exclude:
Q1: X has 5 kids, A, B, C, D, & E. X makes a will Children 1. Parents
instituting all his kids to the free portion. 2. Collaterals
However, C predeceases him, D is unworthy to 3. State
succeed, and E renounces. Meanwhile, C, D & E
Concur with:

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 1. Surviving spouse
2. Illegitimate Children Concurs with: Collaterals in
the same degree
Excluded by: no one
Illegitimate Exclude: Excluded by:
Children 1. Illegitimate parents 1. Legitimate children
2. Collaterals 2. Illegitimate children
3. State 3. Legitimate parents
4. Illegitimate parents
Concur with: 5. Surviving spouse
1. Surviving spouse 6. BSNN
2. Legitimate Children State Excludes: no one
3. Legitimate Parents
Concurs with: no one
Excluded by: no one
Legitimate Exclude: Excluded by: everyone
Parents 1. Collaterals
2. State Combinations in Intestate Succession
Heir Share
Concur with: Legitimate The whole estate, divided
1. Illegitimate Children children alone equally
2. Surviving Spouse Legitimate IC gets ½ of LC’s share of
children & the whole estate
Excluded by: legitimate illegitimate
children children
Illegitimate Exclude: Legitimate The whole estate, divided
Parents 1. Collaterals children & equally (like the surviving
2. State surviving spouse is 1 LC)
spouse
Concur with: Surviving Legitimate The whole estate, divided
Spouse children, equally (like the surviving
surviving spouse is 1 LC) & each IC
Excluded by: spouse & getting ½ of the share of
1. Legitimate children illegitimate the LC.
2. Illegitimate children children
Surviving Excludes: Legitimate The whole estate, divided
Spouse 1 Collaterals other than parents alone equally
BSNN Legitimate The whole estate,
3. State ascendants observing, in proper cases,
alone (other rule of division by line
Concurs with: than parents)
1. Legitimate children Legitimate LP – ½ of the estate
2. Illegitimate children parents & IC – ½ of the estate
3. Legitimate parents illegitimate
4. Illegitimate parents children
5. BSNN Legitimate LP – ½ of the estate
parents & SS – ½ of the estate
Excluded by: no one surviving
Brothers & Exclude: spouse
Sisters, 1. All other collaterals Legitimate LP – ½ of the estate
Nephews & 2. The State parents, SS – ¼ of the estate
Nieces(BSNN) surviving IC – ¼ of the estate
Concurs with: Surviving spouse &
spouse illegitimate
children
Excluded by: Illegitimate The whole estate, divided
1. Legitimate children children alone equally
2. Illegitimate children Illegitimate IC – ½ of the estate
3. Legitimate parents children & SS – ½ of the estate
4. Illegitimate parents surviving
Other Exclude: spouse
Collaterals 1. Collaterals in remoter Surviving The whole estate
degrees spouse alone
2. The State
Surviving IP – ½ of the estate
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spouse & SS – ½ of the estate a PH resident – where
illegitimate property is situated
parents
Surviving SS – ½ of the estate B. How property is used
spouse & BSNN (whether legitimate or 1. For the benefit of public
legitimate or illegitimate) – ½ of the educational &
illegitimate estate (with NN inheriting charitable institutions
brothers, by representation, in proper in the respective
sisters, nieces & cases) municipalities/cities
nephews 2. Alternatively, at the
Illegitimate The whole estate instance of an
parents alone interested party or
Illegitimate IP – excluded motu proprio, court
parents & LC/IC – whole estate, may order creation of a
children of any divided equally permanent trust for the
kind LC & IC – IC only get ½ the benefit of institutions
share of a LC concerned
Legitimate Whole estate, but half-
brothers & siblings only get ½ the
sisters alone share of a full-blood sibling
Legitimate Whole estate, but Clavano’s Diagram: State Edition
BSNN  Half-siblings only get ½
the share of a full-blood
sibling, &
 Nephews & nieces inherit
by the right of
representation in proper
cases
Nephews & Nephews & nieces inherit
nieces with the whole estate per capita,
aunts & uncles while observing the 2:1
proportion of full- & half-
blood
ALONE: (Dividing the whole fraternity, excluding
estate)
1. LC – divide equallyaunts & uncles
Illegitimate Whole estate, but half-
2. LP – divide&equally
brothers siblings only get ½ the
3. alone
sisters LA – division of share
line of a full-blood sibling
SYMBOLS:
 PP – Personal property
4. IC – divide equally
Illegitimate Whole estate, but  RP – Real property
BSNN5. IP – divide equally Half-siblings only get ½
the share of a full-blood
6. SS sibling, &
7. LBS – 2:1 for full/half-blood;
 Nephews with&NNnieces
by rightinherit
of
representation by the right of
8. IBS – 2:1 for full/half-blood;
representation in proper
with NN by right of
representation cases
9. NN – per capita; 2:1 (nearer
Nephews & The whole estate,
excludes the more per
nieces alone
remote) capita, but observing 2:1
10. Collaterals – perproportion
capita (nearer between
excludes the full
more &
remote) half-bloods
11.collaterals
Other State
The whole estate, per
capita, the nearer in degree
ONLY CONCURRING: ALL excluding the more remote
getting ½ each
1. SS + IC
State The whole estate
Clavano’s Diagram: Intestate Edition
2. SS + IP
A. Assignment & disposition
3. SS + LBSNN of assets SUBSECTION 1. Descending Direct Line
4. SS + IBSNN 1. If decedent is PH Article.
resident at any time
*NN – inherit by representation
a. Personal property Article 978. Succession pertains, in the first
SYMBOLS:
– to municipality place, to the descending direct line. (930)
 SS – Surviving Spouse of last residence
 IC – Illegitimate Child b. Real property – Article 979. Legitimate children & their
where situated descendants succeed the parents & other
 LC – Legitimate Child
2. If decedent was never ascendants, without distinction as to sex or
 LA – Legitimate Ascendants
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 IBS – Illegitimate brothers & sisters

 NN – Nephews & nieces

age, & even if they should come from different
marriages.
An adopted child succeeds to the property of
the adopting parents in the same manner as a
legitimate child. (931a)
Class Discussion
Q: Suppose that a man, during his lifetime,
entered into 3 valid marriages. Is there a
distinction between his kids from the 1 st, 2nd &
3rd marriage?
A: NO. They are all considered legitimate even if
they should come from different marriages.
CASE: SAYSON V. CA
Facts: Eleno & Rafaela were husband & wife,
with 5 children. One of these kids was Teodoro.
Teodoro, in turn, married Isabel, & with her
adopted 2 kids, Delia & Edmondo, & 1
legitimate child, Doribel. When Teodoro & Isabel
died, Teodoro’s siblings, as well as Isabel’s
mother, jointly filed a complaint for partition &
accounting of Teodoro & Isabel’s estate. The
adopted children & Doribel opposed this,
claiming that only they were entitled to the
estate, being exclusive heirs of Teodoro &
Isabel.
Meanwhile, the adopted children & Doribel filed
a complaint to have the partitioning &
accounting of Eleno & Rafaela’s estate, claiming
to be entitled to the share of Teodoro by right of
representation. Chaos ensued. Are the adopted
children entitled to Eleno & Rafaela’s estate, as
well as Teodoro & Isabel’s?
Held: The adopted children & Doribel are
entitled to their parent’s estate, as their
compulsory heirs. Doribel, as legitimate child, is
evidently entitled. And the law provides that an
adopted heir succeeds to the property of the
adopting parents like a legitimate child, & a
decree of adoption cannot be assailed indirectly
via a complaint for partition.
HOWEVER, while Doribel is entitled to represent
her parents in their share of the estate of her
grandparents, Eleno & Rafaela, the adopted
kids, Delia & Edmondo, are not so entitled.
While it is true that the adopted child shall be
deemed to be a legitimate child & have the
same right as the latter, these rights do not
include the right of representation. The
relationship created by the adoption is between
only the adopting parents and the adopted child
& does not extend to the blood relatives of
either party.
*NOTE: The Court completely forgot that, since
Teodoro survived Eleno, there was no question
of the application of the right to representation.
CASE: NERI V. HEIRS OF HADJI YUSOP UY & JULPHA
IBRAHIM-UY
Facts: Anunciacion died intestate. Her husband
Enrique executed an Extrajudicial Settlement of
the Estate with Absolute Deed of Sale,
adjudicating among himself & his 5 children the
homestead properties left by his wife, &
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thereafter conveyed them to the Sps Uy. The
children later on filed a Complaint for
Annulment of Sale, assailing the validity of the
sale for having been sold beyond the 5-year
prohibitory period from the issuance of the
homestead patents. Also, Eutropia and Victoria
(children from the 1st marriage to Gonzalo)
were excluded therefrom. Is their contention
correct?
Held: YES. The SC held that in the execution of
the Extrajudicial Settlement, ALL the heirs of
Anunciacion should have participated.
Considering that Eutropia and Victoria (children
from 1st marriage) were admittedly excluded
and minor child Douglas not properly
represented (because his father Enrique was
merely clothed with powers of administration
and bereft of any authority to dispose of their
shares), the settlement was not valid and
binding upon them and consequently, a total
nullity.
However, while the settlement is void, the
subsequent sale is valid but only with respect to
the proportionate shares of Enrique (surviving
spouse) and Napoleon, Alicia, and Visminda
(legitimate children) and Rosa (minor child not
properly represented but who subsequently
ratified the defect). These heirs have acquired
their respective shares in the properties of
Anunciacion from the moment of her death and
as owners thereof, they can very well sell their
undivided share in the estate.
CASE: ROSALES V. ROSALES
Facts: Petra died intestate. She was survived by
her husband Fortunato and two children Magna
and Antonio, as well as by Mackiquerox, the son
of her predeceased son Carterio. Carterio’s
widow Irene insisted in getting a share of the
estate in her capacity as surviving spouse of
Carterio. Does Irene have a right to claim that
she is an heir?
Held: NO. The SC held that Irene is not a
compulsory heir of Petra. The surviving spouse
is considered a 3rd person with respect to the
estate of a parents-in-law. Her son,
Mackiquerox, however, succeeds in his own
right. He succeeds not his predeceased father
Carterio but his paternal grandmother Petra.
Irene’s contention that Carterio at the time of
his death had an inchoate right to the properties
of Petra must fail. Said right of Carterio was
extinguished by his death, which is why
Mackiquerox succeeded from Petra by right of
representation.
CASE: BERCILES V. GSIS
Facts: Judge Pascual Berciles died intestate.
Following this, there were two sets of claimants
for survivors’ benefits under the GSIS –
Iluminada & her 4 children, Flor & her 4
children. The GSIS, in a resolution, concluded
that Iluminada was able to sufficiently prove her
marriage to Pascual, whereas Flor was not.
Additionally, however, the GSIS declared that
Flor’s 4 children, Voltaire, Maria, Mervy & Rhoda,
were illegitimate children of Pascual. Voltaire
was an acknowledged natural child of Pascual,
while Maria, Mervy, & Rhoda ere illegitimate
children of Pascual. Was the GSIS correct when
it arrived at this conclusion?
Held: NO. The SC held that an illegitimate
(spurious) child, to be entitled to support &
successional rights from his parents, must prove
his filiation. This may be done by means of
voluntary or compulsory recognition of the
relationship. For this purpose, the provisions
concerning natural children are held applicable.
Thus, recognition is voluntary when made in the
record of birth, a will, a statement before a court
of record, or in any authentic writing (Art. 278),
& compulsory when made by means of a court
action in the cases enumerated in Arts. 283 &
284. Illegitimate children are entitled to support
& successional rights but for Art. 269 to be
applicable, there must be admission or
recognition of the paternity of the illegitimate
child. The SC held that the baptismal & birth
certificates presented, as well as the sworn
statement by the sister-in-law of Pascual as to
the fact that their two families lived closely
together, and the family pictures do not
constitute proof of filiation. Thus, the SC held
that the GSIS gravely abused its discretion in
approving the assailed Resolution, which
adopted the erroneous recommendation of the
Committee on Claims Settlement, a Article 982. The grandchildren and other
recommendation which has no legal or factual
basis to stand on.
Class Discussion
Q: If there are still children who are all alive,
may the grandchildren, children of said children,
inherit from a decedent?
A: No, because the nearer exclude the more
remote.
Q: How about if a child dies but said child has a
grandchild?
A: The grandchild will inherit by right of
representation. The grandchild may inherit as
much as their ascendant would have inherited.
Q: May there be disinheritance in intestate
succession?
A: NO. Disinheritance entails testamentary
succession, and only with regard to the legitime,
not the free portion.
Q: There are 4 sons, all of whom have two
children. The estate is P1M. The fourth son
renounces his inheritance. How do they divide
the inheritance?
A: There is no right of representation in
renunciation. Thus, the estate will be divided by
3 instead of 4. If any of the 3 sons predecease,
their share will go to their respective 2 children.
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Q: Supposing all the children predecease,
leaving only grandchildren. How will the
grandchildren inherit?
A: The grandchildren will inherit by the right of
representation. They will divide whatever their
parents would have received among
themselves.
Q: What if all the grandchildren predecease but
they have children of their own?
A: There will still be right of representation for
the great grandchildren.
Q: Is there a need to compute for legitime first
before computing for intestate shares?
A: NO. Note that the share based on the legitime
and the intestate share actually MERGE already.
Therefore there is no need to compute for the
legitime and add up the share received via
intestate succession.
Article 980. The children of the deceased
shall always inherit from him in their own right,
dividing the inheritance in equal shares. (932)
Article 981. Should children of the deceased
& descendants of other children who are dead,
survive, the former shall inherit in their own
right, & the latter by right of representation.
(934a)
descendants shall inherit by right of
representation, and if any one of them should
have died, leaving several heirs, the portion
pertaining to him shall be divided among the
latter in equal portions. (933)
Article 983. If illegitimate children survive
with legitimate children, the shares of the
former shall be in the proportions prescribed by
Art. 895. (n)
Simplified Division for Art. 983
The proportion of the shares of legitimate &
illegitimate children has been simplified to 2:1
by virtue of the amendments in Arts. 163 & 176
of the Family Code.
Two-Step Process for Dividing Shares
1. Segregate the legitime of the children –
both legitimate & illegitimate
2. If any is left, apportion it in proportion of
2:1
 It is possible, depending on the
number of children, that the estate is
not sufficient to satisfy the legitimes.
If so, the second step may not be
feasible. In that case, the legitimes of
the illegitimates will have to be
reduced pro rata.
Class Discussion
Q: The testator left 2 legitimate children & 4
illegitimate children. What is the share of each?
How do you divide P3M among them?
A: The legitime of each legitimate child is
P750,000. Meanwhile, the legitime of each
illegitimate child is P375,000. After this, there is
no longer a free portion.
This can be computed using just the equations
of intestate succession.
Q: What if, instead of 4 illegitimates, there are 6
illegitimates, while there remains to be 2
legitimate children? If there is still P3M, how will
this be divided?
Q: First, one must compute for the legitime of
the legitimate children. There are 2, so their
share, together, will be P1.5M.
Meanwhile, the 4 illegitimate children will have
to divide P1.5M among themselves. They each
will get P375,000.
Article 984. [Repealed by R.A. No. 8552]
SUBSECTION 2. Ascending Direct Line
Article 985. In default of legitimate children &
descendants of the deceased, his parents &
ascendants shall inherit from him, to the
exclusion of collateral relatives. (935a)
Article 986. The father & mother, if living,
shall inherit in equal shares. Should one only of
them survive, he or she shall succeed to the
entire estate of the child. (936)
Article 987. In default of the father & mother,
the ascendants nearest in degree shall inherit.
 Should there be more than one of equal
degree belonging to the same line they
shall divide the inheritance per capita;
 Should they be of different lines but of
equal degree, ½ shall go to the paternal
and the other half to the maternal
ascendants.
In each line the division shall be made per
capita. (937)
SUBSECTION 3. Illegitimate Children
Article 988. In the absence of legitimate
descendants or ascendants, the illegitimate
children shall succeed to the entire estate of
the deceased. (939a)
Class Discussion
Q: Who is an illegitimate child?
A: An illegitimate child is one born outside of a
valid marriage.
Q: Does it make a difference if the illegitimate
child’s child is also illegitimate?
A: NO.
Article 989. If, together with illegitimate
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children, there should survive descendants of
another illegitimate child who is dead, the
former shall succeed in their own right and the
latter by right of representation. (940a)
Right of Descendants to Succeed
Descendants do not only succeed by the right of
representation; they also succeed in their own
right in the proper cases.
Article 990. The hereditary rights granted by
the two preceding articles to illegitimate
children shall be transmitted upon their death
to their descendants, who shall inherit by right
of representation from their deceased
grandparent. (941a)
Descendants in Art. 990
This refers to both legitimate & illegitimate
descendants.
Article 991. If legitimate ascendants are left,
the illegitimate children shall divide the
inheritance with them, taking ½ of the estate,
whatever be the number of the ascendants or
of the illegitimate children. (942, 841a)
Article 992. An illegitimate child has no right
to inherit ab intestato from the legitimate
children & relatives of his father or mother; nor
shall such children or relatives inherit in the
same manner from the illegitimate child.
(943a) [Asked by MEL]
CASE: CORPUS V. ADMINISTRATOR
Facts: Teodoro was an illegitimate child of Luis,
based on the latter’s will. Luis, however, had
legitimate children, including Jose. When
Teodoro died, he had no forced heirs. However,
one of his nearest relatives was Juanita,
daughter of his half brother, Jose. Juanita, in
turn, had a son, Tomas. Tomas wanted to claim
Juanita’s supposed share in Teodoro’s estate.
Does Tomas have cause of action to recover his
mom’s supposed share?
Held: NO. Since Teodoro was illegitimate & since
Juanita Corpus was the legitimate child of Jose,
himself a legitimate child of Luis, Tomas has no
cause of action for the recovery of the supposed
hereditary share of his mother, Juanita, as a
legal heir, in Teodoro's estate. Juanita was not a
legal heir of Teodoro because there is no
reciprocal succession between legitimate and
illegitimate relatives. The rule is based on the
theory that the illegitimate child is disgracefully
looked upon by the legitimate family while the
legitimate family is, in turn, hated by the
illegitimate child.
The law does not recognize the blood tie and
seeks to avoid further grounds of resentment
CASE: LEONARDO V. CA
Facts: Francisca had three daughters, Maria,
Silvestra & Pascuala. Pascuala predeceased her,
but had a son, Sotero, who in turn had an
illegitimate child, Crescencio. When Francisca
died, Crescencio filed a complaint for sum of
money & property, seeking to be declared an
heir of Francisca. Will Crescendo’s complaint
prosper?
Held: NO. An illegitimate child who has no right
to inherit ab intestato from the legitimate
children and relatives of his father, like the
deceased Francisca.
CASE: DIAZ V. IAC
Facts: Simona is the mother of Pablo, who in
turn had illegitimate children, who are the
petitioners in this case. When Simona died,
Pablo was already dead; however, Simona was
survived by a niece, Felisa, as well as Pablo’s
illegitimate children. The trial court declared the
latter to be Simona’s sole heir. The petitioners,
however, protest that they enjoy the right of
representation to their father’s share in
Simona’s estate. Was the trial court correct to
exclude Pablo’s children?
Held: YES. Article 992 of the New Civil Code
provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato
between the illegitimate child and the legitimate
children and relatives of the father or mother of
said illegitimate child. They may have a natural
tie of blood, but this is not recognized under Art.
992. Thus, petitioners here cannot represent
Pablo in the succession of the latter to the
intestate testate of his legitimate mother,
Simona.
*Note from MR: While the New Civil Code may
have granted successional rights to illegitimate
children (e.g., in Art. 982), Art. 992 prohibits the
right of representation from being exercised by
illegitimate children 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.
Thus –
 If the person to be represented is an
illegitimate child, then his descendants,
whether legitimate or illegitimate, may
represent him
 BUT if the person to be represented is
legitimate, his illegitimate ascendants
cannot represent him because the law
provides that only his legitimate
descendants may exercise the right of
representation by reason of the barrier
imposed
This rule applies to both collateral relatives &
those in the descending or ascending lines,
excluding the parent & child.
CASE: PASCUAL V. PASCUAL-BAUTISTA
Facts: Olivia & Hermes are acknowledged
natural children of the decedent’s son. They
contend that the term “illegitimate” as provided
in Art. 992 must be strictly construed to refer
only to spurious children. Is their contention
valid?
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Held: NO. Olivia & Hermes are considered
illegitimate children by law; thus, they cannot
represent their father in the intestate estate of
Don Andres. The interpretation of the law
desired by Olivia & Hermes may be more
humane but it is also an elementary rule in
statutory construction that when the words the
statute are clear, their meaning must be
determined from the language employed and
the statute must be taken to mean exactly what
it says. Clearly, the term “illegitimate” refers to
both natural & spurious. Also under the Family
Code, all illegitimate children are generally
placed under one category.
CASE: MANUEL V. FERRER
Facts: Antonio had legitimate children (Benigno,
et al.) and an illegitimate child (Juan). Juan died
intestate and his ward, Modesta (ampon without
benefit of judicial decree of adoption) executed
an Affidavit of Self-Adjudication claiming for
herself 3 parcels of land left in the estate.
Benigno & his siblings (legitimate children)
initiated the suit, seeking the nullity of the
instruments by which Modesta conveyed the
properties of Juan. The RTC dismissed the
complaint, holding that Benigno, et al., not
being intestate heirs of Juan, they are not the
real parties-in-interest to institute the suit. Do
Benigno, et al. have legal personality to file
suit?
Held: NO. The SC held that Benigno, et al. are
not the legal heirs of Juan. By virtue of Art. 992,
the legitimate brothers & sisters cannot inherit
from the illegitimate child. Thus, they had no
standing to file the suit, which the SC held as
properly dismissed.
CASE: CENTENO V. CENTENO
Facts: Isaac died. He was survived by his spouse
Melchora & their 3 sons, Valentin, Faustino, &
Antonio. In his will, Isaac named his 3 sons as
his heirs to 1/2 of his estate, to be divided
equally among them. Antonio died, leaving a
widow, Gabriela. Antonio also executed a will,
where he left his share in the estate of Isaac &
his future share in the estate of Melchora to his
3 natural children (herein defendants). This will
was probated. Melchora died, leaving in her will
a portion of the estate to be divided equally
among her sons (Antonio & Faustino, both
deceased, & Valentin). Are the defendants
entitled to a share of Isaac’s & Melchora’s
properties?
Held: They are entitled to Antonio’s share in
Isaac’s property, but not in Melchora’s.
1. Regarding Isaac’s property - the defendants
did not inherit from their natural grandfather
Isaac by intestate succession, but from their
natural father Antonio, who acknowledged them
in his will & named them heirs to the property
he had inherited from his deceased father Isaac,
who had died before him. The fact that the
inheritance left by Isaac remained pro indiviso
when Antonio Centeno died, did not prevent him
from acquiring during his lifetime, a right to
inherit from his deceased father, since Art. 657
plainly provides that the rights to succession of
any person are transmitted from the moment of
his death.
2. Regarding Melchora’s property - While it is
true that Antonio named the defendants as his
heirs not only with respect to the hereditary
portion given him in the will of his father Isaac
(who was already dead at the time) but also
with respect to the hereditary portion of the
property left by his mother Melchora (who was
still alive), nevertheless said testamentary
disposition with regard to Melchora's property is
void. Since Antonio predeceased his mom, he
had not acquired any right to her inheritance &
therefore could not dispose of the property.
Although Melchora named Antonio as one of her
heirs, since he died before her, the defendants
have no right to represent their deceased father.
A natural child whose deceased father was
legitimate has no right to inherit from his
grandmother, even if the latter should die
without any surviving legitimate descendant.
This is a necessary consequence of the
pertinent Civil Code provision, because, as
children inherit in their own right and
grandchildren by representation, it is clear that
such representation of the grandchildren only
refers to and includes those who are in the
same legal status as the person represented, &
never those who are in a different legal status.
CASE: VDA. DE CRISOLOGO V. CA
Facts: Julia maintained extramarital relations
with Victoriano & begot him one child named
Lutgarda, who died without any will. The
plaintiffs, as relatives within the 5th civil degree
of Lutgarda through Julia, were consequently
instituted as Lutgarda's legal heirs. Was this
institution correct?
Held: NO. The legitimate relatives of Julia cannot
inherit from Lutgarda, an illegitimate child of
Julia, because it is the clear and unmistakable
provision of Art. 992. Between natural children
and legitimate relatives of the father/mother
who acknowledge the natural child, the Civil
Code denies any right of succession. They
cannot be called relatives and they have no
right to inherit.
CASE: SUNTAY III V. COJUANGCO-SUNTAY
Facts: Cristina died intestate, & she was
survived by her spouse Federico and son Emilio
I. Emilio I, who predeceased Cristina, had
legitimate children (Isabel, Margarita, & Emilio
II) & illegitimate children (Emilio III & Nenita).
Despite the illegitimate status of Emilio III, he
was reared ever since he was a baby by Cristina
& Federico. Significantly, after Cristina died,
Federico adopted Emilio III & Nenita. Being an
illegitimate child, should Emilio III be excluded
from the administration of Cristina’s estate?
Held: NO. Emilio III should not be excluded from
the administration of the estate. The peculiar
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circumstances of this case overthrow the legal
presumption in Art. 992 that there exist
animosity & antagonism between legitimate and
illegitimate descendants of a deceased. Art.
992. does not apply in light of Emilio III being
treated by Cristina & Federico as their own son,
reared from infancy, educated and trained in
their businesses, & eventually legally adopted
by Federico.
Class Discussion
Q: Supposing a decedent dies and he is
illegitimate, but is survived by an heir of the full
blood who is also illegitimate. Can that brother
inherit?
A: YES, the brother may inherit from the
decedent, given they are both illegitimate.
Q: Suppose that a decedent dies, and he is
illegitimate. The decedent has a half-brother
who is also illegitimate. Can they inherit from
one another?
A: They can inherit from one another (but this is
not provided in the law itself; this is just Justice
Hofi’s opinion).
Q: Yangco donated a parcel of land to a charity
which was incorporated. The deed of donation
provided that the charity could not transfer the
property to another person. At the end of the
corporate life of the charity, the charity
incorporated another corporation and moved
the property there. The heirs of Yangco
contested, claiming they were entitled to
reversion of the property, is their contention
correct?
A: NO. Yangco was an illegitimate, and, thus,
died without heirs; he only had collateral
relatives whom the law did not contemplate to
be “heirs.”
Article 993. If an illegitimate child should die
without issue, either legitimate or illegitimate,
his father or mother shall succeed to his entire
estate; & if the child's filiation is duly proved as
to both parents, who are both living, they shall
inherit from him share and share alike. (944a)
Article 994. In default of the father or mother,
an illegitimate child shall be succeeded by his
or her surviving spouse who shall be entitled to
the entire estate.
If the widow or widower should survive with
brothers & sisters, nephews and nieces, she or
he shall inherit of ½ the estate, & the latter the
other half. (945a)
BSNN as Legal Heirs of an Illegitimate Child
When the law speaks of BSNN of illegitimate
children, it refers to both legitimate &
illegitimate brothers & sisters, as well as
legitimate & illegitimate nephews & nieces.
SUBSECTION 4. Surviving Spouse

Article 995. In the absence of legitimate
descendants & ascendants, & illegitimate
children & their descendants, whether
legitimate or illegitimate, the surviving spouse
shall inherit the entire estate, without prejudice
to the rights of brothers & sisters, nephews &
nieces, should there be any, under Art. 1001.
(946a)
Article 996. If a widow or widower &
legitimate children or descendants are left, the
surviving spouse has in the succession the
same share as that of each of the children.
(834a)
If There is Only 1 Legitimate Child
Art. 996 applies even if there is only one
legitimate child, in which case the child & the
surviving spouse will divide the estate equally.
Class Discussion
Q: If a wife survives with 4 children, and the
whole estate is P1M, how will the estate be
divided?
A: It would be dividing P1M by 5.
CASE: SANTILLON V. MIRANDA
Facts: The decedent left behind only 1 son & 1
wife. The son was insisting that he should get a
¾ share of the properties of the decedent after
deducting his mom’s conjugal share, with his
mom getting ¼ of the remaining properties. Is
his contention correct?
Held: NO. The son is entitled to ½ and the
mother ½ based on the rules of intestate
succession.
1. The divisions under the chapter on intestate
succession have different rule from those of
testate succession in relation to legitimes (in the
latter, governed by Art. 892, the son would have
been entitled to 3/4).
2. The word “children” also encompasses the
singular child when looking at the provisions of
the Civil Code. In intestacy, Art. 996 applies
whether or not there is one child or many
children.
Article 997. When the widow or widower
survives with legitimate parents or ascendants,
the surviving spouse shall be entitled to ½ of
the estate, & the legitimate parents or
ascendants the other ½. (836a)
Article 998. If a widow or widower survives
with illegitimate children, such widow or
widower shall be entitled to ½ of the
inheritance, & the illegitimate children or their
descendants, whether legitimate or
illegitimate, to the other half. (n)
CASE: LANDAYAN V. BACANI
Facts: Teodoro died. His wife, Maxima, & alleged
natural, son, Severino, executed an extrajudicial
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partition dividing the decedent’s properties. The
Landayan group, however, legitimate children of
Guillerma, the only daughter of the decedent
Teodoro, opposed the extrajudicial partition.
They claimed that Severino was not the
illegitimate son of the decedent, Teodoro, but of
Guillerma, their mother. The Judge dismissed
the case. Was the Judge’s action correct?
Held: NO. Aside from the question of
prescription, the SC held that there were still
important considerations to make in this case,
particularly as regards the true parentage of
Severino. If the Landayan group’s allegation is
true, then Severino has no right of legal
succession from Teodoro, in view of Art 992. The
right of representation is denied by law to an
illegitimate child who is disqualified to inherit ab
intestato from the legitimate children and
relatives of his father. In such a case, the
subject Deed of Extrajudicial Partition insofar as
it includes Severino, who is not an heir, is void
as to him. Severino, however, alleges that he is
not an illegitimate child of Guillerma, but rather
of Teodoro. In this case, his right to inherit form
Teodoro is recognized by law (Art. 998). SC thus
remanded the case back to the Judge for trial on
the merits.
CASE: ADLAWAN V. ADLAWAN
Facts: Dominador, the decedent, left behind
Arnelito, an illegitimate son, & his wife,
Graciana, who died 10 years after Dominador.
Arnelito instituted this ejectment complaint
against Emeterio & Narcisa, siblings of
Dominador, as regards a house & lot which
Arnelito claimed was exclusively his, as he had
inherited it from Dominador. The MTC dismissed
the complaint, holding that Dominador had no
personality to file the suit, not being the only
owner of the property, as Graciana was also the
owner. Furthermore, it held that the
establishment of Arnelito’s filiation & the
settlement of the estate of Dominador are
conditions precedent to the accrual of Arnelito’s
action for ejectment. Could Arnelito file the
ejectment complaint alone?
Held: NO. Arnelito is not the sole owner of the
property, as claims. Dominador was survived
not only by Arnelito by also by his legal wife
Graciana. By intestate succession, Graciana and
Arnelito became co-owners of the lot. The death
of Graciana did not make Arnelito the absolute
owner of the lot because the share of Graciana
passed to her relatives by consanguinity, and
not to Arnelito, with whom she had no blood
relations. Pertinently, the SC looked to Art 487
of the Civil Code: “Any one of the co-owners
may bring an action in ejectment.” Tolentino
elucidates that a co-owner may bring such an
action, without necessity of joining all other co-
owners as co-plaintiffs, if the suit is instituted
for the benefit of all. BUT If the action is for the
benefit of the plaintiff alone, such that he claims
possession for himself and not for the co-
ownership, the action will not prosper. In the
case at bar, Arnelito brought the suit for
unlawful detainer in his name alone and for his
own benefit to the exclusion of the heirs of
Graciana.
Article 999. When the widow or widower
survives with legitimate children or their
descendants & illegitimate children or their
descendants, whether legitimate or
illegitimate, such widow or widower shall be
entitled to the same share as that of a
legitimate child. (n)
Article 1000. If legitimate ascendants, the
surviving spouse, & illegitimate children are
left, the ascendants shall be entitled to ½ of
the inheritance, & the ½ shall be divided
between the surviving spouse & the
illegitimate children so that such widow or
widower shall have ¼ of the estate, & the
illegitimate children the other ¼. (841a)
Article 1001. Should brothers & sisters or
their children survive with the widow or
widower, the latter shall be entitled to ½ of the
inheritance & the brothers & sisters or their
children to the ½. (953, 837a)
Article 1002. In case of a legal separation, if
the surviving spouse gave cause for the
separation, he or she shall not have any of the
rights granted in the preceding articles. (n)
Class Discussion
Q: 4 illegitimate children, 2 legitimate children,
1 surviving spouse remain of the decedent’s
heirs. How would the division be between them
if the estate is P1M?
A: Divide P1M by 5. The amount will be
P200,000.
The LC will get P200,000 each.
The surviving spouse will get P200,000.
The IC will get P100,000 each because there are
4 children.
In this case, the legitime of the LC are impaired,
because they were supposed to get P250,000
each under the laws of compulsory succession.
The spouse’s legitime was also impaired, as well
as the illegitimate children.
Tolentino states that the LC’s share is preferred.
They must both get their P250,000 each. The
share of the spouse is also preferred so she will
get P250,000.
The balance of P250,000 will be divided
amongst the 4 illegitimate children.
The legitime are even more important than
testamentary dispositions; thus, the legitime
must be granted to the legitimate child, and
then to the spouse, as they are preferred by the
law.
Q: If the surviving spouse concurs with a
legitimate ascendant & a illegitimate child, what
is the share?
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A: Surviving spouse will get ¼ & the illegitimate
child will be ¼. In this case, no legitimes will be
affected, since in the law on legitimes the
parents get ½ of the estate also.
Q: What if the wife is separated from the
husband and she is the sole heir?
A: If she caused the separation, she is not
entitled to her share; but if she is the innocent
spouse, she is not barred from inheriting by
intestate succession.
Q: What if the marriage is declared null via Art.
36 of the Family Code. Will the surviving spouse
inherit?
A: She will no longer inherit because there is no
marriage. Thus, there is no surviving spouse.
SUBSECTION 5. Collateral Relatives
Article 1003. If there are no descendants,
ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to
the entire estate of the deceased in
accordance with the following articles. (946a)
Article 1004. Should the only survivors be
brothers & sisters of the full blood, they shall
inherit in equal shares. (947)
Article 1005. Should brothers & sisters
survive together with nephews & nieces, who
are the children of the descendant's brothers &
sisters of the full blood, the former shall inherit
per capita, & the latter per stirpes. (948)
Class Discussion
Q: Why is there a provision where, if the spouse
concurs with the brothers, sisters, nephews &
nieces, they will divide the estate among
themselves, but the grandnephews and
grandnieces would be excluded if the spouse
survived only with the latter batch?
A: Because the brothers and sisters are nearest
to the deceased; that is probably why.
Q: If the brothers & sisters are the only
survivors, how much will they inherit?
A: They will inherit the entire estate.
Q: Can the nephews and nieces inherit with the
siblings?
A: Only by right of representation & not with the
siblings.
Article 1006. Should brothers & sisters of the
full- blood survive together with brothers &
sisters of the half- blood, the former shall be
entitled to a share double that of the latter.
(949)
Article 1007. In case brothers & sisters of the
half blood, some on the father's & some on the
mother's side, are the only survivors, all shall
inherit in equal shares without distinction as to
the origin of the property. (950)
Reasoning Behind Art. 1007
Since all the siblings are of the half-blood, the
division will be equal.
Class Discussion
Q: What if the survivors are all half-brothers?
One half-brother is from the father’s side and
the other from the mother’s side. What is the
effect?
A: They will inherit equally with no distinction.
Q: What if the half-brother on the father’s side is
illegitimate, & the half-brother on the mother’s
side is legitimate, how will they divide?
A: They will be able to divide the estate equally
among themselves.
Article 1008. Children of brothers & sisters of
the half blood shall succeed per capita or per
stirpes, in accordance with the rules laid down
for brothers and sisters of the full blood. (915)
Article 1009. Should there be neither brothers
nor sisters nor children of brothers or sisters,
the other collateral relatives shall succeed to
the estate.
The latter shall succeed without distinction of
lines or preference among them by reason of
relationship by the whole blood. (954a)
Note for Art. 1009
Nephews & nieces exclude uncles & aunts,
though all are 3rd degree relatives.
Article 1010. The right to inherit ab intestato
shall not extend beyond the fifth degree of
relationship in the collateral line. (955a)
SUBSECTION 6. The State
Article 1011. In default of persons entitled to
succeed in accordance with the provisions of
the preceding Sections, the State shall inherit
the whole estate. (956a)
Article 1012. In order that the State may take
possession of the property mentioned in the
preceding article, the pertinent provisions of
the Rules of Court must be observed. (958a)
Escheat Proceedings
The State must execute escheat proceedings
pursuant to the Rules of Court in order to
acquire the property.
CASE: CITY OF MANILA V. ARCHBISHOP OF MANILA
Facts: Ana Sarmiento executed a will, in which
she provided for the establishment of a
Capellania de Misas. The will contained
provisions that the first chaplain of the
capellania should be her nephew Pedro, and
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that administration thereof shall continue
perpetually. After Ana died, for more than 200
years, the Roman Catholic Archbishop of Manila,
through various agencies, administered the
property. The City of Manila commenced the
present suit to have declared escheated to the
city of Manila the property constituting the
capellania (5 parcels of land), on the theory that
the owner Ana Sarmiento died without leaving a
person entitled to the same. Is the Archbishop
correct?
Held: NO. Act No 190, Sec. 750 provides when
property may be declared escheated: when a
person dies intestate, with remaining real or
personal property, leaving no heir or person by
law entitled to the same. SC held that Ana did
not die intestate; in fact, she left a will which
provides for the administration of her property
by her nephew as well as for the subsequent
administration of the same. She did not die
without persons entitled to administer her
estate. Insofar as the record shows, the property
is still being administered in accordance with
the terms of Ana’s will for the benefit of the real
beneficiary, as was intended by the original
owner Ana. Thus, the property cannot be
declared escheated.
Article 1013. After the payment of debts &
charges, the personal property shall be
assigned to the municipality or city where the
deceased last resided in the Philippines, & the
real estate to the municipalities or cities,
respectively, in which the same is situated.
If the deceased never resided in the
Philippines, the whole estate shall be assigned
to the respective municipalities or cities where
the same is located.
Such estate shall be for the benefit of public
schools, & public charitable institutions &
centers, in such municipalities or cities. The
court shall distribute the estate as the
respective needs of each beneficiary may
warrant.
The court, at the instance of an interested
party, or on its own motion, may order the
establishment of a permanent trust, so that
only the income from the property shall be
used. (956a)
Article 1014. If a person legally entitled to the
estate of the deceased appears and files a
claim thereto with the court within 5 years from
the date the property was delivered to the
State, such person shall be entitled to the
possession of the same, or if sold, the
municipality or city shall be accountable to him
for such part of the proceeds as may not have
been lawfully spent. (n)
Class Discussion
Q: The municipal council sold the lot it got by
escheat proceedings, and then used the
proceeds to pay for scholarships to the local
school. Is that allowed?
A: Yes. Besides, who can complain?
PARTIAL INTESTACY
Partial Intestacy
 Partial intestacy is not provided for
explicitly by the Civil Code
 This refers to situations where the
decedent left a will disposing of part, but
not all, of the disposable portion
How to Solve Partial Intestacy Situations
1. Trace where the free portion went in total
intestacy
2. Since part of that free portion was
disposed of by will, the testamentary
provisions should be carried out, & what is
left of the free portion should then be
given to the intended beneficiary in
intestacy
Illustrative Example
X died, leaving as his survivors his legitimate
parents, A & B, & his wife Y. X had no kids. X left
a will giving 1/8 of his entire estate to Caritas
Manila. His net estate is worth P600K.
 The will is not inofficious, since it only
disposes of 1/8 of the estate, the
disposable portion here being ¼.
 The legitimes of the compulsory heirs are:
o A & B – 1/2 of the estate – P300K
o Y – ¼ of the estate – P150K
 In total intestacy, the shares would have
been:
o A & B – ½ of the estate – P300K
o Y – ½ of the estate – P300K
 The intended recipient of the undisposed
portion is Y, since she is the one to whom
the entire free portion went in total
intestacy (A & B simple got their
legitimes)
 Since part of the free portion was given
away by will, the remainder should be
given to Y, the wife.
 THUS –
o Caritas Manila – P75,000 (1/8 by
will)
o A & B – P300,000 (1/2) or P150,000
each
o Y – P225,000
Class Discussion [Partial Intestacy]
Q: What if there are 2 legitimate children, 4
illegitimate children, and a legacy of P2,000?
A: The legitimate children will get ½ of the
estate, i.e., P250,000 each.
The 4 illegitimate children will get P125,000
each. This will be P500,000.
There is no more room to pay for the legacy.
Since it is inofficious, the legacy will be reduced.
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CHAPTER 4. Provisions Common to Testate
& Intestate Successions
SECTION 1. Right of Accretion
*Article 1015. Accretion is a right by virtue of
which, when 2 or more persons are called to the
same inheritance, devise, or legacy, the part
assigned to the one who –
 Renounces or
 Cannot receive his share, or
 Died before the testator,
is added or incorporated to that of his co-heirs,
co-devisees, or co-legatees. (n)
When Accretion Operates (RIP)
1. Renunciation
2. Incapacity
3. Predecease
*Note: These are the same occasions for simple
substitution.
Unity of subject
Plurality of object
Article 1016. In order that the right of
accretion may take place in a testamentary
succession, it shall be necessary:
(1) That 2 or more persons be called to the
same inheritance, or to the same portion
thereof, pro indiviso; &
(2) That one of the persons thus called dies
before the testator, or renounces the
inheritance, or becomes incapacitated to
receive it. (928a)
Elements of Accretion
1. 2 or more persons are called to the same
inheritance, or to the same portion
thereof, pro indiviso
2. Renunciation, predecease, or incapacity of
one (or more but less than all) of the
instituted heirs
Pro Indiviso as Contemplated in Accretion: Two
Types
 The co-heirs are instituted without
individual designation of shares, OR
o Ex. I institute A & B to ½ of my
estate.
 The co-heirs are instituted with the
specification that they share equally (“in
equal shares”) or that they have the same
fractional sharing for each (“1/2 for
each”), OR
o Ex. “I institute A, B, & C to ½ of my
estate in equal shares.”
o Ex. “I institute A, B, & C to ½ of my
estate, each of them to take 1/3 of
that 1/2.”
 The co-heirs are instituted with fractional
shares, but the sharing between the co-
heirs is unequal.
 o Reason: Pro indiviso as a term
means “in common” & does not
import equality. Accretion thus
occurs even if the sharing is
unequal, as long as it results in co-
ownership.
o Ex. “I institute A, B, & C to ½ of my
estate. Of this ½, A gets ½, B gets
1/3 & C gets 1/6.”
There is accretion in testamentary succession
when there is disinheritance.
Q: If there is repudiation and there is a last will
and testament, you must recall that ½ will
pertain to the free portion, while the other half
goes to the legal heirs (by accretion). But what
happens to the legitime?
A: Intestate succession.
CASE: TORRES V. LOPEZ (1926)
Facts: Tomas had been judicially declared
incapable of taking care of himself & was placed
under the guardianship of his cousin Vicente.
Tomas executed a will, in which he declared, “I
institute as the only & universal heirs to all my
property my cousin Vicente Lopez & his
daughter Luz.” Four days after the will was
made, Vicente died. Later, the testator Tomas
died. At the time of the execution of the will,
Vicente had not presented his final accounts as
guardian. Who is entitled to be Tomas’ universal
heir?
Held: Luz is entitled.
1. The SC referred to Art. 753 of the old Civil
Code which declares that no testamentary
provision shall be valid when made by a ward in
favor of his guardian before the final accounts of
the latter have been approved. Art. 753 applies
in the case at bar and the provision made in the
will in favor of Vicente was not any general
incapacity on his part, but a special incapacity
due to the relation of guardian & ward existing
between the parties.
2. Following the answer to this question, SC
considered which provisions would apply in this
case where the ward’s daughter was named as
an heir in the will. Did the disability of Vicente
bring Luz’s case under Art. 912 of the Civil Code
rather than Art. 982 of the old Civil Code (now
Art. 1016)?
 If under. Art 912, legal succession takes
place if the heir dies before the testator &
also when the heir instituted is
disqualified to succeed. Under this theory,
Margarita Lopez (a cousin & nearest
relative of the decedent) is entitled to
inherit the share of the disqualified heir,
Vicente.
 If under Art. 982, accretion takes place in
testamentary succession, first when 2 or
more persons are called to the same
inheritance or the same portion thereof
without special designation of shares, and
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secondly, when one of the persons so
called dies before the testator or
renounces the inheritance or is qualified
to receive it. Under this theory, Luz, who
was called to the same inheritance
without designation of shares alongside
Vicente, would receive the property.
SC held that as between Arts. 912 & 982, the
former is the more general of the two, dealing
as it does with the general topic of intestate
succession while the latter is more specific,
defining the particular conditions under which
accretion takes place. Thus, In case of conflict,
Art. 912 must be considered limited by Art. 982.
Indeed, Art, 912(3), the provision with respect to
intestate succession is expressly subordinated
to Art 983 by the expression “and (if) there is no
right of accretion.” Thus, Luz succeeds to the
entire estate.
Article 1017. The words "1/2 for each" or "in
equal shares" or any others which, though
designating an aliquot part, do not identify it by
such description as shall make each heir the
exclusive owner of determinate property, shall
not exclude the right of accretion.
In case of money or fungible goods, if the share
of each heir is not earmarked, there shall be a
right of accretion. (983a)
Class Discussion
Q: What does the term “earmarked” mean in
this provision?
A: Earmarked means that it is clear who the
amount or goods are designated to. It will result
in a situation where there is no co-ownership
between 2 or more heirs, because it is clear
which portion belongs to whom.
Q: X, the decedent, provided that A & B would
each inherit ½ of P1M. Is this considered a
situation where there can be accretion? Is this
considered earmarked?
A: No.
Q: If X says P500,000 from Metrobank will be
given to Y, and P500,000 from BDO will be given
to Z, is this considered earmarked?
A: Yes.
Q: X says, I leave to A the money in the left
drawer of my desk, & B the money in the right
drawer of my desk. Is this considered
earmarked?
A: This is considered earmarked.
Q: What does ½ for each mean? Does that
prevent accretion?
A: No. This is similar to pro indiviso. But when it
comes to money, money must be earmarked.
Q: X is the testator. A & B are siblings and were
named as heirs in the will. A, on the other hand,
has a son Y. When there is predecease by heir A,
and a will and testament, what happens to the
legitime, versus the free portion?
A: The legitime will be subject to the right of
representation & Y will represent A, while the
free portion shall be subject to accretion.
[RODGE]
Q: What happens when there is repudiation by
A, in that same scenario where X is the parent,
A & B the siblings, and Y is A’s heir?
A: The legitime will be subject to intestate
succession, while the free portion will be subject
to accretion. [RODGE]
Article 1018. In legal succession the share of
the person who repudiates the inheritance shall
always accrue to his co-heirs. (981)
Accretion in Intestate Succession – When it
Occurs
1. Repudiation or renunciation
2. Incapacity or unworthiness, only if
representation does not take place
3. Predecease, only if representation does
not take place
Accretion vis-à-vis Representation in Intestacy
In intestacy, accretion is subordinate to
representation.
Co-Heirs Must be in the Same Category
The co-heirs in whose favor accretion occurs
must be co-heirs in the same category as the
excluded heir.
 Ex. X dies intestate, survived by his wife Y
& his brothers, A, B, & C.
o If C renounces, only A & B will split
his share, not Y.
Article 1019. The heirs to whom the portion
goes by the right of accretion take it in the
same proportion that they inherit. (n)
Article 1020. The heirs to whom the
inheritance accrues shall succeed to all the
rights & obligations which the heir who
renounced or could not receive it would have
had. (984)
Exceptions to Art. 1020
1. In testamentary succession, if the testator
provides otherwise;
2. If the obligation is purely personal, &
hence intransmissible
Article 1021. Among the compulsory heirs the
right of accretion shall take place only when the
free portion is left to 2 or more of them, or to
any one of them and to a stranger.
Should the part repudiated be the legitime, the
other co-heirs shall succeed to it in their own
right, and not by the right of accretion. (985)
Accretion in Compulsory Succession
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 Accretion is restricted in its operation
within the confines of the particular kind
of succession involved, whether it is
testamentary, intestate or compulsory.
 In compulsory succession, there is no
accretion in the legitime when there is
repudiation; the heirs instead inherit the
excluded heir’s share in their own right.
o This rule does not substantially
affect the operation of the legitime,
except in
 The computation of legitime of
illegitimate children
 The computation of legitime of
the surviving spouse when
concurring with legitimate
children
Article 1022. In testamentary succession,
when the right of accretion does not take place,
the vacant portion of the instituted heirs, if no
substitute has been designated, shall pass to
the legal heirs of the testator, who shall receive
it with the same charges & obligations. (986)
Hierarchy in Situations Where Succession
Testamentary in Nature
1. Substitution takes into account the
testator’s will; thus, it will be prioritized.
2. If there is no substitution, there will be
accretion.
3. If there is no accretion, there will instead
be intestate succession.
Article 1023. Accretion shall also take place
among devisees, legatees & usufructuaries
under the same conditions established for heirs.
(987a)
SECTION 2. Capacity to Succeed by Will or
by Intestacy
Article 1024. Persons not incapacitated by law
may succeed by will or ab intestato.
The provisions relating to incapacity by will are
equally applicable to intestate succession. (744,
914)
General Rule: Capacity to Succeed
The general rule is in favor of capacity to
succeed, as long as the successor has juridical
personality.
2nd Par. is Incorrect
Note that some grounds for incapacity to
succeed by will have no application to
compulsory or intestate succession.
*Article 1025. In order to be capacitated to
inherit, the heir, devisee or legatee must be
living at the moment the succession opens,
except in case of representation, when it is
proper.
A child already conceived at the time of the
death of the decedent is capable of succeeding
provided it be born later under the conditions
prescribed in Art. 41. (n)
Requisites for Natural Persons to Inherit
Type of Succession Requirement
Default Rule Must be living when
succession opens
If institution is subject Must be living –
to a suspensive 1. When succession
condition opens
2. When the condition
happens
If institution is subject Must be living when
to a suspensive term the succession opens
When Succession Opens
Succession opens at the decedent’s death.
Meaning of “Living”
It is enough that the heir, devisee or legatee is
already conceived when the decedent dies,
provided that he or she will be born later, in
accordance with Art. 40 & 41.24
Representation Not an Exception to the
Requirement
 In the right of representation, the heir
must also already be at least conceived
when the decedent dies. (Art. 971 & 973)
 Thus, the requirement that the successor
should be alive when the decedent dies is
absolute & applies in both representation
& accretion.
Illustrative Example
Q: X has two sons, A & B, & B was disinherited
by X. X died in 1985. In 1988 B begot a child.
Can B’s child represent B?
A: NO. B’s child cannot represent B in the
succession to X, because the child was not alive
when the decedent died.
Question on Illegitimate Children
Q: X was validly disinherited by his dad, A. A
died, leaving X with an illegitimate son, Y. Can Y
represent X?
A: NO. As it is, he cannot.
Q: What is Y is subsequently legitimated?
A: Y can now represent X. This is because
legitimation is retroactive.
CASE: PARISH PRIEST OF CATHOLIC
VICTORIA V. RIGOR
Facts: Fr. Rigor, the testator, provided in his will
that a lot he owned would be granted to his
nearest male relative who would enter the
priesthood. At the time he died, none of his
heirs were in the priesthood. Thus, the testate
proceedings remained pending. 13 years after
his death, however, the parish priest of Victoria
filed a petition praying for the delivery of the lot,
for Edgardo, the grandson of Fr. Rigor’s first
cousin, became a seminarian of the Jesuit
Fathers in Q.C. The other heirs prayed that the
provision in Fr. Rigor’s will be declared
inoperative for such a proviso could not go on
into perpetuity. Is the contention of the other
heirs correct?
Held: YES. As a general rule, the stipulation
should refer to a relative already living at the
time of the death of the testator. The life of the
stipulation cannot go on into perpetuity, unless
the testator explicitly so provides (i.e., that the
property would be bequeathed to the relative
who became a priest even after the decedent’s
death). Here, there was no mention in the will as
to the period. The provision should thus be
reasonably construed, in a way that would
remove any uncertainty as to the disposition of
the estate.
Class Discussion
Q: Give an example of a suspensive term.
A: X is made an heir provided that he receives it
1 year after the death of the decedent.
In this situation, if X died after the decedent
died, but prior to the end of the 1 year, his heirs
would be able to inherit, since this is a
suspensive term.
Article 1026. A testamentary disposition may
be made to the State, provinces, municipal
corporations, private corporations,
organizations, or associations for religious,
scientific, cultural, educational, or charitable
purposes.
All other corporations or entities may succeed
under a will, unless there is a provision to the
contrary in their charter or the laws of their
creation, & always subject to the same. (746a)
Requirement for Juridical Persons to Succeed
1. It must possess juridical personality, as
provided in Art. 44.25
2. It must already exist as a juridical person
CHURCH OF
when the decedent dies.
Class Discussion
Q: When is a juridical person considered alive?

24 Article 40. Birth determines personality; but the

conceived child shall be considered born for all purposes that
are favorable to it, provided it be born later with the
conditions specified in the following article. (29a)
Article 41. For civil purposes, the fetus is considered born if it
is alive at the time it is completely delivered from the
mother's womb. However, if the fetus had an intra-uterine life
of less than 7 months, it is not deemed born if it dies within 24
hours after its complete delivery from the maternal womb.
(30a)
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25 Article 44. The ff. are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public
interest or purpose, created by law; their personality begins
as soon as they have been constituted according to law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (35a)
A: It is considered alive when the State grants it
juridical personality. For ordinary corporations,
this is when they are registered with the SEC.
Article 1027. The ff. are incapable of
succeeding:
(1) The priest who heard the confession of the
testator during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same
period;
(2) The relatives of such priest or minister of
the gospel within the 4th degree, the
church, order, chapter, community,
organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the
guardianship have been approved, even if
the testator should die after the approval
thereof;
 BUT: Any provision made by the
ward in favor of the guardian when
the latter is his ascendant,
descendant, brother, sister, or
spouse, shall be valid;
(4) Any attesting witness to the execution of
a will, the spouse, parents, or children, or
any one claiming under such witness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health
officer or druggist who took care of the
testator during his last illness;
(6) Individuals, associations, & corporations
not permitted by law to inherit. (745, 752,
753, 754a)
Commentary on Art. 1027, Pars. 1-5
 These are referred to as “relative
incapacity,” because they are based on
the relationship. This is unlike death, for
example, which is absolute
 No actual duress or influence need be
shown to apply these provisions; the Code
seeks to prevent even just the possibility
 Pars. 1-5 only apply to testamentary
succession
 THUS: A person may be disqualified to
succeed by will under these paragraphs,
but be entitled to a legitime or to an
intestate portion
Paragraph (1): Requisites
1. The will must have been executed during
the testator’s last illness;
2. The spiritual ministration must have been
extended during the last illness;
3. The will must have been executed during
or after the spiritual ministration.
Class Discussion
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Q: Would violations of paragraph (1) would
make the whole will void or just the designation
to the priest?
A: It would just affect the designation to the
priest; otherwise, the will would still be valid.
Paragraph (2)
A spouse of a religious minister would also likely
be covered by this provision.
Class Discussion
Q: Suppose that the testator made a will
donating P5M to the Society of Jesus when Fr.
Bernas ministered his last gospel. Is the
designation of the Society of Jesus valid?
A: NO, this is prohibited under par. (2) of this
Art.
Paragraph (3): Requisites
1. The guardian is over persons or property
2. The ward executes the will during the
effectivity of the guardianship, i.e., at
anytime between the commencement of
the guardianship & its dissolution
3. The guardian is NOT the –
a. Ascendant;
b. Descendant;
c. Sibling; or
d. Spouse of the ward-testator.
Paragraph (4)
Expands the disqualification in Art. 823 to
include not just legacies & devises, but also,
testamentary dispositions made in the witness’
favor.
 BUT: The Art. 823 exception – i.e., if there
are 3 other competent witnesses – should
also apply in Par. 4
Class Discussion
Q: Under par. 4, what if the will is attested &
there are more than 3 attesting witnesses?
A: Then the designation would be valid, since
the ratio behind the prohibition is not really
affected.
Paragraph (5)
The person must have taken care of the testator
during the latter’s final illness.
 Taking care – medical attendance with
some regularity or continuity.
Class Discussion
Q: Under par. 5, would the caregiver be
capacitated to receive?
A: The Civil Code did not contemplate a
caregiver, but the caregiver would most likely
also be considered a nurse.
Article 1028. The prohibitions mentioned in
Art. 739, concerning donations inter vivos shall
apply to testamentary provisions. (n)
Applicability of Art. 1028
Art. 1028 applies only to situations where there
is testamentary succession.
Additionally Disqualified Under Art. 739
(1) Those made between persons who were
guilty of adultery or concubinage at the
time of the donation;
(2) Those made between persons found guilty
of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of
his office.
CASE: NEPOMUCENO V. CA
Facts: Martin died. In his last will, he
bequeathed Sofia as his heir & executor. Sofia,
however, was in an adulterous affair with him.
Martin was actually married to Rufina & had two
kids with her. In the will, Martin made explicit
mention of his wife & kids as well, but prioritized
Sofia. Sofia sought to have the will of Martin
admitted into probate, but this was opposed by
Rufina. The probate court, while ruling that the
will was extrinsically valid, also ruled that the
will was intrinsically void, & disallowed the will.
Sofia protested that the probate court should
not have ruled on the intrinsic validity when it
was merely tasked with admitting the will into
probate. Was Sofia’s contention correct?
Held: NO. The court acted within its jurisdiction
when after declaring the will to be validly drawn,
it went on to pass upon the intrinsic validity of
the will and declared the devise in favor of Sofia
void.
Art. 739 of the Civil Code provides: “The ff.
donations shall be void: (1) Those made
between persons who were guilty of adultery or
concubinage at the time of the donation.” Also,
Article 1028 of the Code provides: “The
prohibitions mentioned in Art. 739, concerning
donations inter vivos shall apply to
testamentary provisions.” From the face of the
will, it was already obvious that it was void, for
Martin already admitted that he was married to
Rufina & had kids with her but bequeathed Sofia
with everything.
The general rule is that in probate proceedings,
the court’s area of inquiry is limited to an
examination & resolution of the extrinsic validity
of the will. But as an exception, when there are
“practical considerations,” a probate court may
already rule on the intrinsic validity of the will.
The probate of a will might become an idle
ceremony if on its face it appears to be
intrinsically void.
The prohibition in Art. 739 is against the making
of a donation between persons who are living in
adultery or concubinage. It is the donation
which becomes void. The giver cannot give even
assuming that the recipient may receive. The
very wordings of the Will invalidate the legacy
because the testator admitted he was disposing
the properties to a person with whom he had
been living in concubinage.
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Article 1029. Should the testator dispose of
the whole or part of his property for prayers and
pious works for the benefit of his soul, in
general terms and without specifying its
application, the executor, with the court's
approval, shall deliver –
 1/2 thereof or its proceeds to the church
or denomination to which the testator
may belong, to be used for such prayers
and pious works, &
 1/2 to the State, for the purposes
mentioned in Art. 1013. (747a) [ASKED BY
MEL]
Requisites in Art. 1029
1. Disposition for prayers & pious works for
the benefit of the testator’s soul
2. No specification of the application of the
disposition
CASE: VILLAVICENCIO V. QUINIO
Facts: Eugenia executed a will, which was
probated over the opposition of some relatives.
The will provided that the fruits of the land and
the incomes of the house & warehouse Eugenia
owned would be invested in the Roman Catholic
Apostolic Church of Batangas, by way of daily
Masses held for the decedent for 3 years, as
well as for the repose of the souls of her
parents, brothers, & sisters, alms, etc. 29
relatives of the testatrix within the 5th civil
degree filed a Motion to be charged with the
duty to comply with the provisions of the will,
alleging that they reached an agreement with
the Bishop of Lipa, wherein they would deposit
with the Bishop the necessary amount to defray
the Masses for 3 years. Quinio, et al., who could
have been intestate heirs, contended that a
substantial balance would still remain after
deducting the necessary expenses for Masses &
alms, in accordance with Eugenia’s wishes. As
to that balance, Quinio, et al. contended that
Eugenia died partly intestate & that they were
entitled to succeed her with respect thereto. Is
their contention correct?
Held: NO. Their proposition would be
inconsistent with what Eugenia ordered in her
Will. Quinio, et al. proceed on the false
assumption that for every Mass celebrated,
some determinate amount from the fruits of
Eugenia’s properties had to be given.
Proceeding on this assumption, it is possible
that the fruits would leave an excess amount
which Eugenia had not disposed of. However,
such an assumption is untenable because
Eugenia ordered “that the fruits of the lands and
the income of the house and warehouse, be
spent for Masses…” Hence, Eugenia intended
that all fruits of the lands and all income be
spent for the Masses. For the purpose of the
Masses, etc., Eugenie also provided that if
necessary, her properties be sold with leave of
court. In view of these provisions in the will,
Eugenia’s collateral relatives, not being forced
heirs, are not entitled to succeed her as to the
remainder of her properties, which does not
exist, or as to the naked ownership thereof.
Article 1030. Testamentary provisions in favor
of the poor in general, without designation of
particular persons or of any community, shall be
deemed limited to the poor living in the domicile
of the testator at the time of his death, unless it
should clearly appear that his intention was
otherwise.
The designation of the persons who are to be
considered as poor & the distribution of the
property shall be made by the person appointed
by the testator for the purpose; in default of
such person, by the executor, & should there be
no executor, by the justice of the peace, the
mayor, and the municipal treasurer, who shall
decide by a majority of votes all questions that
may arise. In all these cases, the approval of the
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. (749a)
Which Poor Are Referred To
 The poor of a definite locality (par. 3), or
 The poor of no designated locality (par. 1)
Who Determine Individual Beneficiaries Within
the Class Designated by the Testator?
1. The person designated by the testator; in
his default,
2. The executor; in his default,
3. The administrator
Article 1031. A testamentary provision in favor
of a disqualified person, even though made
under the guise of an onerous contract, or made
through an intermediary, shall be void. (755)
Who Can Claim Nullity
The intestate heirs, to whom the property would
go, have the right to claim the nullity
Article 1032. The ff. are incapable of
succeeding by reason of unworthiness:
(1) Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted of an
attempt against the life of the testator, his
or her spouse, descendants, or
ascendants;
(3) Any person who has accused the testator
of a crime for which the law prescribes
imprisonment for 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 a month, unless
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the authorities have already taken action;
this prohibition shall not apply to cases
wherein, according to law, there is no
obligation to make an accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
change one already made;
(7) Any person who by the same means
prevents another from making a will, or
from revoking one already made, or who
supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a
supposed will of the decedent. (756, 673,
674a)
Application of Art. 1032
Applies to all kinds of succession
Grounds Under Par. (1)
1. Abandonment of the child
2. Inducement of a daughter to lead a
corrupt or immoral life
3. Attempt against a daughter’s virtue
Pars. (1)-(5)
These are also grounds for disinheritance
Par. (4) – Technically Inoperative, because of (5)
1. The heir has knowledge of the violent
death of the decedent
2. The heir is of legal age
3. The heir fails to report it to an officer of
the law within a month (after learning of
it)
4. The authorities have yet to take action
5. There is a legal obligation to make an
accusation – makes the provision
inoperative, because there is no such
legal obligation under the law
Effect of Unworthiness
 Unworthiness gives rise to total
disqualification
o The unworthy heir is incapacitated
to succeed from the offended party
by any form of succession (even
legitimes)
 THUS: Unworthiness and disinheritance
have identical effects
TESTACY
Grounds for Accretion: DRIP
Predecease (same rule for incapacity)
- Free portion: If there is an heir, rules on
accretion will apply (hence, everything will
go to the other heir); if there is no heir,
 then the free portion will follow the rules under such witness,
on intestacy spouse, parents, or
- Legitime: Right of representation will children;
apply if the one who predeceases has an (5) Any physician,
heir; if there is no heir, the rules on surgeon, nurse, health
intestacy will apply officer or druggist who
took care of the
Repudiation testator during his last
- Legitime will be by intestacy illness;
- Free portion will be subject to accretion (6) Those made between
Note that a person who repudiates cannot be persons who were
represented. Hence, there will be no right of guilty of adultery or
representation. Thus, if A was set to inherit from concubinage at the
B, and B has a child, C, but B repudiates, C time of the donation;
cannot represent B in A’s inheritance. (7) Those made between
persons found guilty
INTESTACY of the same criminal
offense, in
Grounds for Accretion: RIP consideration thereof;
(8) Those made to a
The legitimes are not considered; instead, you public officer or his
consider the mass of the property or estate. wife, descendants and
Thus, you just follow the rules on accretion. ascendants, by reason
of his office.
Repudiation All Types of (1) Parents who have
- This will be subject to ACCRETION Succession abandoned their
children or induced
Summary of Causes of Incapacity [MEL ASKED their daughters to
THIS] lead a corrupt or
Type of Succession Causes of Incapacity immoral life, or
Testamentary Only (1) The priest who heard attempted against
the confession of the their virtue;
testator during his last (2) Any person who has
illness, or the minister been convicted of an
of the gospel who attempt against the
extended spiritual aid life of the testator, his
to him during the or her spouse,
same period; descendants, or
(2) The relatives of such ascendants;
priest or minister of (3) Any person who has
the gospel within the accused the testator
4th degree, the of a crime for which
church, order, the law prescribes
chapter, community, imprisonment for 6
organization, or years or more, if the
institution to which accusation has been
such priest or minister found groundless;
may belong; (4) Any heir of full age
(3) A guardian with who, having
respect to knowledge of the
testamentary violent death of the
dispositions given by testator, should fail to
a ward in his favor report it to an officer
before the final of the law within a
accounts of the month, unless the
guardianship have authorities have
been approved, even already taken action;
if the testator should this prohibition shall
die after the approval not apply to cases
thereof; wherein, according to
(4) Any attesting witness law, there is no
to the execution of a obligation to make an
will, the spouse, accusation;
parents, or children, (5) Any person convicted
or any one claiming of adultery or
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 concubinage with the If he disinherits Art. 922 – Subsequent
spouse of the reconciliation cures
testator; If he institutes or Offender restored to
(6) Any person who by pardons the offender capacity
fraud, violence, If will is silent Disputed; but for
intimidation, or undue Balane, unworthiness
influence should stays
cause the testator to 2. If He Did Not Know of the Cause –
make a will or to Unworthiness Stays
change one already
made; Article 1034. In order to judge the capacity of
(7) Any person who by the heir, devisee or legatee, his qualification at
the same means the time of the death of the decedent shall be
prevents another from the criterion.
making a will, or from In cases falling under Nos. 2, 3, or 5 of Art.
revoking one already 1032, it shall be necessary to wait until final
made, or who judgment is rendered, & in the case falling
supplants, conceals, under No. 4, the expiration of the month allowed
or alters the latter's for the report.
will; If the institution, devise, or legacy should be
(8) Any person who conditional, the time of the compliance with the
falsifies or forges a condition shall also be considered. (758a)
supposed will of the
decedent. When Capacity is to be Determined
(9) Individuals, General Rule Time of the decedent’s death
associations and If subject to a Time of decedent’s death +
corporations not suspensive Time of happening of the
permitted by law to condition condition
inherit. If final Time of final judgment
judgment is a
Article 1033. The cause of unworthiness shall requisite of Exact situations covered:
be without effect if the testator had knowledge unworthiness 1. Person was convicted of
thereof at the time he made the will, or if, an attempt against the life
having known of them subsequently, he should of the testator, his or her
condone them in writing. (757a) spouse, descendants, or
ascendants;
Two Ways By Which There is Restoration to 2. Person accused the
Capacity [ASKED BY MEL] testator of a crime for
 A written condonation which the law prescribes
 The execution by the offended party of a imprisonment for 6 years
will with knowledge of the cause of or more, if the accusation
unworthiness has been found
o For this mode, the will must also groundless;
either institute the unworthy heir or 3. Any person convicted of
restore him to capacity adultery or concubinage
with the spouse of the
Overlap of Rules on Unworthiness & testator (No. 2, 3, 5 of Art.
Disinheritance (Art. 1033 & 922) 26 [ASKED BY 1032)
MEL] If final The expiration of the month
A. If offended party does not make a will judgment & allowed for the report
subsequent to the occurrence of the common report is
cause needed Situation covered: An heir of
 Unworthiness sets in ipso facto & written full age who, having knowledge
condonation is necessary to restore to of the violent death of the
capacity testator, should fail to report it
to an officer of the law within a
B. If offended party makes a will subsequent to month (No. 4 of Art. 1032)
the occurrence of the common cause, apply
this: Article 1035. If the person excluded from the
1. If He Knew Of the Cause inheritance by reason of incapacity should be a
child or descendant of the decedent & should
26 Art. 922. A subsequent reconciliation between the have children or descendants, the latter shall
offender & the offended person deprives the latter of the right acquire his right to the legitime.
to disinherit, & renders ineffectual any disinheritance that The person so excluded shall not enjoy the
may have been made. (856)
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usufruct & administration of the property thus
inherited by his children. (761a) Remedy of Rightful Heirs
If there is a valid alienation by a disqualified
Representation in Unworthiness heir, the heirs can go after the disqualified heir
Unworthiness is one of 3 instances where for damages.
representation may operate. The 3 are: [DUP]
1. Disinheritance Article 1037. The unworthy heir who is
2. Unworthiness excluded from the succession has a right to
3. Predecease demand indemnity or any expenses incurred in
the preservation of the hereditary property, and
Extent of Representation to enforce such credits as he may have against
Applies to – the estate. (n)
1. The legitime
2. Whatever portion in intestate succession Right to Reimbursement of the Unworthy Heir
the person represented may have been This is not dependent on the unworthy heir’s
entitled to good or bad faith because these refer to
necessary expenses
Representation in the Collateral Line  Property law: necessary expenses may be
If the unworthy heir is a brother or sister, his reimbursed even to a possessor in bad
children (i.e., nephews & nieces of the faith
decedent) will represent
Class Discussion
Those Excluded From Usufruct or Q: What are necessary expenses?
Representation A: These are expenses that pertain to the
The basis for this is Art. 225-226 of the Family preservation of the property.
Code
Usufruct The prohibition is now Article 1038. Any person incapable of
unnecessary, because FC states succession, who, disregarding the prohibition
– the right of the parents over stated in the preceding articles, entered into the
the fruits & in the child’s possession of the hereditary property, shall be
property is limited primarily to – obliged to return it together it its accessions.
1. The child’s support He shall be liable for all the fruits & rents he
2. Secondarily, the collective may have received, or could have received
daily needs of the family through the exercise of due diligence. (760a)
Administrati The disqualification remains; the
on right shall be exercised either Disqualified Heir in Art. 1038 is Possessor in Bad
by – Faith
1. A judicially appointed Because he is a possessor in bad faith, the heir
guardian, or must –
2. Those vested by law with 1. Return the property, with accessions
substitute parental 2. Incur liability for fruits which was received,
authority (Art. 216, FC) & could have been received

Article 1036. Alienations of hereditary Period for Action to Recover

property, & acts of administration performed by
the excluded heir, before the judicial order of
exclusion, are valid as to the third persons who
acted in good faith; but the co-heirs shall have a
right to recover damages from the disqualified
heir. (n)
Good Faith of Transferee as Determinant of
Validity
The transferee’s good or bad faith determines
the validity of the transfer, NOT the transferor’s
(i.e., the excluded heir)
Requisites for a Transferee to be in Good Faith
1. Acquired the thing for value
 Thus, a donee cannot claim to be a
transferee in good faith
2. Acquired without knowledge of the defect
of the transferor’s title
3. Good faith
4 years from the time the disqualified person
took possession thereof (Art. 1040)
Q: What is meant by accession?
A: Whatever is attached to the property,
whether these property may be natural, civil or
industrial.
Article 1039. Capacity to succeed is governed
by the law of the nation of the decedent. (n)
National Law of Decedent Governs Capacity
It is the national law of the decedent – NOT that
of the heir – that governs capacity to succeed
CASE: CAYETANO V. LEONIDAS
Facts: Adoracion Campos died, leaving her
father Hermogenes as her sole compulsory heir
under Philippine law. Her father thus adjudicated
the entire estate to himself. However, Adoracion

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disposed of all of her properties via will, as The rules for acceptance are more liberal than
shown by her sister, leaving none for her father. those for repudiation, because acceptance is
Adoracion was at the time of her death an beneficial to the successor.
American citizen & a permanent resident of
Philadelphia, USA. The trial court allowed Article 1042. The effects of the acceptance or
Adoracion’s will into probate, thus excluding her repudiation shall always retroact to the
father from the inheritance. Her father opposed, moment of the death of the decedent. (989)
claiming that this would violate his right to his
legitime as a compulsory heir & could not be Retroactivity to the Moment of Decedent’s
countenanced. Is his contention correct? Death
Held: NO. Under Art. 16(2) of the Civil Code, Of Heir will be deemed to have
intestate and testamentary successions, both acceptance owned & possessed the
with respect to the order of succession and to property from the precise
the amount of successional rights and to the moment of the decedent’s
intrinsic validity of testamentary provisions, death.
shall be regulated by the national law of the
person whose succession is under consideration, This affects: acquisitive
whatever may be the nature of the property and prescription, capacity to
regardless of the country wherein said property succeed, representation, etc.
may be found. Also, under Art. 1039 of the Civil Of Renouncer is deemed never to
Code, capacity to succeed is governed by the renunciation have owned or possessed the
law of the nation of the decedent. Thus, the law property.
which governs Adoracion’s will is the law of
Pennsylvania, USA, which does not provide for Thus: The substitute, co-heir,
legitimes and that all the estate may be given or intestate heir who inherits in
away by the testatrix to a complete stranger. default of the renouncer is
Whatever public policy or good customs may be deemed the owner & possessor
involved in our system of legitimes, Congress from the moment of the
has not intended to extend the same to decedent’s death.
succession of foreign nationals. Conditional Retroactive effect still applies.
Institutions*  Upon the happening of the
condition, the property
Article 1040. The action for a declaration of passes to the heir but with
incapacity and for the recovery of the *NOTE: Art. retroactive effect.
inheritance, devise or legacy shall be brought 880 must be  If the condition does not
within 5 years from the time the disqualified followed; the happen, the property goes
person took possession thereof. It may be property to the appropriate
brought by any one who may have an interest in should be successor, with the same
the succession. (762a) placed under retroactive effect
administratio
Prescriptive Period under Art. 1040 [Asked by n during the
MEL] interim.
5-year prescriptive period applies both to the:
1. Declaration of incapacity of the heir Article 1043. No person may accept or
2. Recover of the inheritance or portion repudiate an inheritance unless he is certain –
thereof wrongfully possessed by the 1. Of the death of the person from whom he
disqualified heir is to inherit, &
Counted from the time the disqualified person 2. Of his right to the inheritance. (991)
takes possession thereof
Class Discussion
SECTION 3. Acceptance and Repudiation of Q: What if everyone thought the testator died,
the Inheritance [asked by MEL] but it turns out he is alive afterwards?
A: The heir will not be considered to have
Article 1041. The acceptance or repudiation inherited their property.
of the inheritance is an act which is purely
voluntary & free. (988) Article 1044. Any person having the free
disposal of his property may accept or
Acceptance of Inheritance as a Free Act repudiate an inheritance.
The acceptance of inheritance, in any form of Any inheritance left to minors or incapacitated
succession, is like the acceptance of a donation persons may be accepted by their parents or
– free & voluntary. guardians. Parents or guardians may repudiate
the inheritance left to their wards only by
Rules More Liberal for Acceptance judicial authorization.
The right to accept an inheritance left to the

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poor shall belong to the persons designated by  Deaf-mutes who can read & write have
the testator to determine the beneficiaries & contractual capacity
distribute the property, or in their default, to  Illiterate deaf-mutes are considered by law
those mentioned in Art. 1030. (992a) as incompetent

Requirement for Personal Acceptance or Summary of Persons Who May Accept &
Renunciation Repudiate
Capacity to act is required for personal Heirs Acceptance Repudiation
acceptance or renunciation. Default Rule Heir himself will accept if he
has capacity to act
Acceptance & Repudiation in Art. 1044 Deaf-mutes
Heirs Acceptance Repudiation who can read Deaf-mute himself
Minors or By their parents By parents, & write
incapacitat or guardians but only Minors or By their
ed persons with court other parents or
approval incapacitated guardians
Poor people By the persons By persons persons
(via designated by the selected as Only with
Deaf-mutes By their
testamenta testator to qualified court
who don’t guardians
ry determine the recipients approval
read & write
dispositions beneficiaries & Corporations, Lawful
) distribute the associations, representativ
property institutions, es of said
entities juridical entity
In default, those Public official
designated in Art. With government approval
establishment
1030 (i.e., s
executor, mayor, The poor (via GR: By By persons
municipal testamentary persons selected as
treasurer, or dispositions) designated by qualified
justice of the the decedent beneficiaries
peace with to decide who (i.e., the poor)
approval of court will be the
beneficiaries
*NOTE: The
above persons In default:
may only accept Art. 1030
grants, & NOT persons
reject them (executor,
mayor,
Article 1045. The lawful representatives of treasurer,
corporations, associations, institutions, & justice of the
entities qualified to acquire property may peace with
accept any inheritance left to the latter, but in court
order to repudiate it, the approval of the court approval)
shall be necessary. (993a)
Article 1049. Acceptance may be express or
Article 1046. Public official establishments tacit. [asked by MEL]
can neither accept nor repudiate an inheritance  An express acceptance must be made in a
without the approval of the government. (994) public or private document.
 A tacit acceptance is one resulting from
Article 1047. A married woman of age may acts by which the intention to accept is
repudiate an inheritance without the consent of necessarily implied, or which one would
her husband. (995a) have no right to do except in the capacity
of an heir.
Article 1048. Deaf-mutes who can read & Acts of mere preservation or provisional
write may accept or repudiate the inheritance administration do not imply an acceptance of
personally or through an agent. the inheritance if, through such acts, the title
Should they not be able to read & write, the or capacity of an heir has not been assumed.
inheritance shall be accepted by their (999a)
guardians. These guardians may repudiate the
same with judicial approval. (996a) Kinds of Acceptance
(1) Express
Deaf-Mutes (Art. 1327) a. Public document
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 b. Private writing gratuitous renunciation and
(2) Tacit – deemed accepted due to acts of renunciation is to the cannot be treated as a
ownership performed by successor co-heirs tacit acceptance.
(3) Implied – failure to accept or repudiate indiscriminately, same
within 30 days after court issues an order as what the co-heirs
for the distribution of the estate [Asked by would have received *NOTE: The same rule
MEL] by virtue of accretion. applies even if the
part renounced in this
Article 1050. An inheritance is deemed manner is the
accepted: [asked by MEL] legitime,
(1) If the heirs sells, donates, or assigns his notwithstanding that
right to a stranger, or to his co-heirs, or to there is no accretion
any of them; in the legitime, as
(2) If the heir renounces the same, even long as the
though gratuitously, for the benefit of one renunciation is
or more of his co-heirs; indiscriminate.
(3) If he renounces it for a price in favor of all
his co-heirs indiscriminately;
 BUT if this renunciation should be Q: If it is gratuitous renunciation, what will
gratuitous, & the co-heirs in whose happen?
favor it is made are those upon A: In effect, there is repudiation on the part of
whom the portion renounced should the heir who does it. Thus, when you renounce
devolve by virtue of accretion, the indiscriminately, you repudiate.
inheritance shall not be deemed as Q: What are the tax consequences of this on the
accepted. (1000) part of the renouncing heir, if made in favor of a
particular heir?
Tacit Acceptance A: This will be subject to donor’s tax, if it is in
It is inferred from acts revealing intent to favor of a particular heir. BUT an heir who
accept, i.e., acts of ownership performed by the waives in favor of ALL heirs will NOT be subject
heir over the property. to donor’s tax.

Illustrative Enumeration Only Article 1051. The repudiation of an

This list is illustrative, not exclusive. inheritance shall be made [either] –
(1) In a public or authentic instrument, or
Onerous Transfer in Favor of Co-Heirs/Stranger (2) By petition presented to the court having
(Par. 1) jurisdiction over the testamentary or
Onerous or gratuitous conveyance in favor of intestate proceedings. (1008)
one, some, or all of his co-heirs, or to a stranger
 This is an act of ownership, which Form of Renunciation
necessarily implies that the heir accepted (1) Public or authentic instrument
the inheritance. (2) Petition filed in the settlement
proceedings
Gratuitous Renunciation in Favor of Co-Heir/s
(Par. 2) Form of Renunciation Stricter
 Gratuitous renunciation in favor of one or The law has stricter requisites for renunciation,
some of his co-heirs since it is not beneficial to the heir.
o This is not really a renunciation, but
a conveyance in favor of the co- Class Discussion
heirs specified. Q: What is the difference between the form that
o It partakes of the nature of donation an acceptance versus the form that a
& must follow forms for donations. renunciation must come in?
A: Acceptance can be express or implied. But
Onerous Renunciation (Par. 3) renunciation is always express. There must be a
Onerous renunciation in favor of all the co-heirs public or authentic instrument, or if there is a
indiscriminately is NOT in fact a renunciation but petition presented to the court.
a sale of his portion & thus, constitutes a tacit It is always implied that an heir would like to
acceptance. accept. But repudiation disturbs the will of the
testator. Hence, it cannot simply be implied.
Gratuitous Renunciation in Favor of All Co-Heirs
If it is in proportions It is still a conveyance Article 1052. If the heir repudiates the
different from those in & must be treated as inheritance to the prejudice of his own
which they would a tacit acceptance creditors, the latter may petition the court to
receive by accretion authorize them to accept it in the name of the
If the transfer by This is a true heir.

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The acceptance shall benefit the creditors only
to an 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, in
accordance with the rules established in this
Code, it may belong. (1001) [asked by MEL]
Art. 1052 is Accion Pauliana [asked by MEL]
Accion pauliana – the right given to creditors to
impugn or set aside contracts, or dispositions of
their debtors which will prejudice or defraud
them.27
Extent of Right of Creditor to Inheritance
 Right of the creditor to accept the
inheritance in debtor’s name extends only
to the amount necessary to satisfy the
credit
 Any amount in excess of that may be
validly renounced by the debtor-heir
CASE: AVELINO V. CA
Facts: Avelino, Sr. died & was survived by his
spouse Angelina, daughter Ma. Socorro
(petitioner), & other compulsory heirs
(respondents). Ma. Socorro filed a Petition for
the Issuance of Letters of Administration, asking
to be appointed the administrator of the estate.
Angelina & the others filed an Opposition by
filing a Motion to Convert the Judicial
Proceedings to an Action for Judicial Partition.
The lower court granted this & ordered the
parties to submit a complete inventory of all the
real and personal properties left by the
decedent. Was the lower court correct?
Held: YES. In this case, the decedent left no
debts and the heirs and legatees are all of age.
Thus, Rule 74, Sec. 1 of the Rules of Court
should apply – the parties may, without securing
letters of administration, divide the estate
among themselves as they see fit by means of a
public instrument filed in the office of the
register of deeds, and should they disagree,
they may do so in an ordinary action of
partition. Thus, the RTC did not err in converting
Ma. Socorro’s Petition for Issuance of Letters of
Administration into an action for judicial
partition.
Article 1053. If the heir should die without
having accepted or repudiated the inheritance
his right shall be transmitted to his heirs.
(1006)
Basis of Above Provision
27 Art. 1177. The creditors, after having pursued the
property in possession of the debtor to satisfy their claims,
may exercise all the rights & bring all the actions of the latter
for the same purpose, save those which are inherent in his
person. They may also impugn the acts which the debtor may
have done to defraud them.
Art. 1313. Creditors are protected in cases of contracts
intended to defraud them.
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 This rule is a consequence of the principle
that the right of succession vests at the
moment of death (Art. 777).
 The right of the heir who dies before
accepting or renouncing is already vested
& transmitted to the heir’s heirs.
Right to Inheritance is Also Inherited
THUS: the heir of the heir can exercise the right
granted by this article only if he (the heir’s heir)
accepts his own predecessor’s inheritance. If he
renounces, obviously he cannot exercise this
right.
Article 1054. Should there be several heirs
called to the inheritance, some of them may
accept and the others may repudiate it.
(1007a)
Right to Accept or Repudiate is Proportionate
If there are several heirs, their right to accept or
repudiate corresponds to the aliquot share to
which they are entitled.
Illustrative Scenario
If X dies & Y, his heir, himself dies before
accepting or renouncing the inheritance, leaving
A, B, & C as his own heirs — A, B, & C each has
the right to accept or renounce his
corresponding 1/3 interest in whatever Y was
entitled to inherit from X.
Article 1055. If a person who is called to the
same inheritance as an heir, by will & ab
intestato, repudiates the inheritance in his
capacity as a testamentary heir, he is
understood to have repudiated it in both
capacities.
Should he repudiate it as an intestate heir,
without knowledge of his being a testamentary
heir, he may still accept it in the latter
capacity. (1009)
Scenario Contemplated by this Provision
A person is both a (1) testamentary heir (or
legatee or devisee) & (2) an intestate heir, with
respect to the same inheritance.
1. If he renounces as testamentary heir (or
legateeor devisee) — he is deemed to
have renounced EVERYTHING, including
being an intestate heir as well.
2. If he renounces as intestate heir without
knowledge of his being a testamentary
heir (or legatee or devisee) — he is NOT
deemed to have renounced as
testamentary heir & may therefore accept
or renounce separately in the latter
capacity.
Rational Behind the Rule
The testamentary disposition is the express will
of the testator, whereas intestacy is only his
implied will. One who renounces the express will
is deemed to have renounced the implied also,
but not the other way around.
What If Scenario – Intestacy & Testacy
Supposing the heir renounces as intestate heir
with knowledge of his being a testamentary
heir, may he accept in the latter capacity? This
is disputed.
 Wording of par. 2 - he cannot accept as
testamentary heir.
 Rationale of the rule - it seems he can;
this is what Balane thinks, too
Non-Applicability of Art. 1055 to Legitime
If an heir is BOTH a compulsory heir & a
testamentary heir, he can accept either or both.
 The legitime passes by strict operation
of law, irrespective of the decedent’s
wishes.
 The term ab intestato in this Art. refers
solely to intestate succession.
 For compulsory heirs, look to Art. 955,
par. 228
Class Discussion
Q: What happens if an heir who is both a
testamentary heir & intestate heir. What about
the intestate?
A: There is a presumption that when the heir
accepts the testamentary, then he also accepts
the intestate.
Q: What if the intestate heir knew he was also a
testamentary heir, but the intestate heir
accepted only the intestate portion of the
inheritance, OR he repudiates the intestate
portion, knowing he is also a testamentary heir.
Is he still free to accept or reject the
testamentary portion?
A: The intestate heir may appear as if he had no
more choice; BUT Professor Balane believes that
the intestate heir would still be free to accept or
repudiate the testamentary portion, as the
testamentary portion pertains to the will of the
testator.
Article 1056. The acceptance or repudiation
of an inheritance, once made, is irrevocable &
cannot be impugned, EXCEPT
 When it was made through any of the
causes that vitiate consent, or
 When an unknown will appears. (997)
Rule in Art. 1056 [asked by MEL]
GR: Acceptance or repudiation is irrevocable.
EXC: Such is still revocable if –
(1) It was made through causes which vitiate
consent (VIFUM)
a. Violence
b. Intimidation
c. Fraud
28 Art. 955, par. 2. Any compulsory heir who is at the same
time a legatee or devisee may waive the inheritance and
accept the legacy or devise, or renounce the latter and accept
the former, or waive or accept both. (890a)
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d. Undue influence
e. Mistake
(2) An unknown will appears
 Applies if the newly-discovered will
is subsequent to any will which may
have formed the basis for the
acceptance or renouncement.
 The new will (if valid & admitted to
probate) reopens the whole affair &
will call for a new acceptance or
renunciation.
Hence, the general rule is that acceptance is
IRREVOCABLE.
Article 1057. Within 30 days after the court
has issued an order for the distribution of the
estate in accordance with the Rules of Court,
the heirs, devisees & legatees shall signify to
the court having jurisdiction whether they
accept or repudiate the inheritance.
If they do not do so within that time, they are
deemed to have accepted the inheritance. (n)
Implied Acceptance
This Art. pertains to implied acceptance, i.e.,
failure to signify acceptance or renunciation
within the 30-day period specified by this
article.
Class Discussion
Q: What does the 30-day period pertain to?
A: It pertains to testamentary succession.
Q: Is there a period for accepting an intestate
share?
A: The law does not provide a period.
SECTION 4. Executors and Administrators
*Justice Hofileña said he would not discuss these
parts.
Article 1058. All matters relating to the
appointment, powers and duties of executors
and administrators and concerning the
administration of estates of deceased persons
shall be governed by the Rules of Court. (n)
Article 1059. If the assets of the estate of a
decedent which can be applied to the payment
of debts are not sufficient for that purpose, the
provisions of Arts. 2239 to 2251 on Preference
of Credits shall be observed, provided that the
expenses referred to in Art. 2244, No. 8, shall
be those involved in the administration of the
decedent's estate. (n)
Article 1060. A corporation or association
authorized to conduct the business of a trust
company in the Philippines may be appointed
as an executor, administrator, guardian of an
estate, or trustee, in like manner as an
individual; but it shall not be appointed
guardian of the person of a ward. (n)
SECTION 5. Collation
Three Meanings of Collation in this Section
1. Collation as computation
 Simple math
 Where the value of all donations
inter vivos made by the decedent is
added to his available assets to
arrive at the value of the net
hereditary estate
 Discussed in Art. 90829
2. Collation as imputation
 Donations inter vivos are
correspondingly charged either –
o To the donee’s legitime, or
o Against the disposable
portion30
3. Collation as return
 Takes place when a donation inter
vivos is found to be inofficous (i.e.,
exceeds the disposable portion)
 So much of its value as is inofficious
is returned to the decedent’s estate
to satisfy the legitimes31
*NOTE: The meaning of collation in this Section
swings from one to another; that is why it is
important to define collation in this manner.
Class Discussion
Q: What is the purpose of collation?
A: It is so that the legitimes of the compulsory
heirs may be properly computed.
Q: What does it mean to say that the donation
inter vivos is imputed to an heir’s legitime?
A: It means that the donation previously
received will be deducted from the heir’s
legitime. Thus, if during his lifetime the testator
donates to an heir P100,000, if the heir’s share
of the testator’s estate at the time of death is
P400,000, then the heir will only get P300,000,
subtracting the P100,000 the heir received
during the testator’s lifetime.
29 Article 908. To determine the legitime, the value of the
property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include those
imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
30 Article 909. Donations given to children shall be charged
to their legitime.Donations made to strangers shall be
charged to that part of the estate of which the testator could
have disposed by his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code. (819a)
Article 910. Donations which an illegitimate child may have
received during the lifetime of his father or mother, shall be
charged to his legitime.
Should they exceed the portion that can be freely disposed of,
they shall be reduced in the manner prescribed by this Code.
(847a)
31 Also referenced in Art. 909 & 910.
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Q: Why do you also have to impute the donation
of the testator to a stranger to the free portion?
A: This is because the legitime must still be
unimpaired; if the donation impairs the legitime,
it will be an inofficious donation. The collation
thus determines if the donation is inofficious or
not.
Q: What happens if the donation inter vivos to a
stranger is found to be inofficious?
A: The donation is subject to reduction.
ALL donations given to any and all persons are
collated.
Q: Can the testator say, “It is my intent that this
donation will not be subject to collation.” Is this
allowed?
A: Yes.
Q: What if an heir repudiates what he inherits by
will?
A: If he repudiates, it is presumed that what he
will receive by will is repudiated.
Q: What if the heir repudiates his legitime, is his
repudiation of what he is to receive by will
presumed?
A: If the heir knows that he is a testamentary
heir, then there will be repudiation of the
portion pertaining to the testate succession. If
the heir is unaware of being a testamentary
heir, that part that is donated to him by will
shall not be removed and will still pertain to said
heir.
Q: If the incapacitated person already has
possession of the thing prior to the incapacity,
what happens?
A: If it is with a person in good faith, then the
subsequent ruling that the heir is incapacitated
will not affect the good faith buyer.
Q: What happens to the necessary expenses?
Article 1061. Every compulsory heir, who
succeeds with other compulsory heirs, must
bring into the mass of the estate any property
or right which he may have received from the
decedent, during the lifetime of the latter, by
way of donation, or any other gratuitous title,
in order that it may be computed in the
determination of the legitime of each heir, & in
the account of the partition. (1035a)
Meaning of Art. 1061
This refers to the computation of all donations
inter vivos made by the decedent
 Determines the net value of the estate
 Purely computational
What is Included in the Computation
 ALL donations inter vivos are included,
whether to compulsory heirs or strangers,
are added to the net hereditary estate
o NOT JUST what is to be given to
compulsory heirs
CASE: ZARAGOZA V. CA
Facts: Flavio (decedent) was survived by his 4
children. His daughter Alberta filed a complaint
for the delivery of her share in the decedent’s
estate, according to a partition made by Flavio
which distributed his properties among 3 out of
the 4 children excepting Alberta through Deeds
of Sale. Her brother Florentino, along with his
wife, was impleaded. Florentino filed a Motion to
Dismiss on the ground that the complaint failed
to implead indispensable parties (i.e., Gloria &
Zacariaz, their other siblings). Will the Motion
prosper?
Held: YES. Collation cannot be done in this case,
where the conjugal petition for delivery of one
heir’s share in the inheritance only impleaded
one of the other compulsory heirs. The petition
must be dismissed without prejudice to the
institution of a new proceeding where all the
indispensable parties are present for the rightful
determination of their respective legitime. If the
legitimes were prejudiced by the partitioning
inter vivos.
M: If the testator says, “DO NOT COLLATE THIS,”
you would still have to add (and in that sense,
collate) the property into the estate of the
testator, only that whatever that value is will be
attributable to the free portion and not the
legitime of the compulsory heir.
You would still have the check if it infringes on
the legitime.
Article 1062. Collation shall not take place
among compulsory heirs –
 If the donor should have so expressly
provided, or
 If the donee should repudiate the
inheritance
UNLESS the donation should be reduced as
inofficious. (1036)
Rules on Imputation of Donations Inter Vivos to
Compulsory Heirs
GR Should be imputed to the heir’s legitime
(i.e., considered as an advance to the
legitime)
EX 1. If the donor provides otherwise
C 2. If the donee renounces the
inheritance; because he would be
giving up his status as a compulsory
heir & thus will not be considered as
one
*If these exceptions apply, the donation
will be imputed to the free portion
Balane’s Querendums
Q: What happens if the compulsory heir
received a donation inter vivos from the
decedent but the value of the donation exceeds
the legitime?
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A: The donation will be imputed to the donee’s
legitime to the extent of the legitime’s value &
the excess, to the free portion.
Donations Inter Vivos to Strangers
This will be imputed to the free portion.
Instances When Donations Inter Vivos are to be
Imputed to the Free Portion
1. When made to strangers
2. When made to compulsory heirs, & the
donor so provides
3. When made to compulsory heirs who
renounce their inheritance
4. When, in excess of compulsory heir’s
legitime, as to the excess
Class Discussion
Q: What happens when the heir repudiates or
the testator expressly provides that there will be
no collation, as stated in Art. 1062?
A: The donation will be attributed to the free
portion instead of the legitime; thus, the
donation may still be reduced if found to be
inofficious.
Article 1063. Property left by will is NOT
deemed subject to collation, if the testator has
not otherwise provide, but the legitime shall in
any case remain unimpaired. (1037)
Collation as Imputation
This case refers to collation as imputation,
because it distinguishes between what will
pertain to the legitime & what to the free
portion.
Rule on Testamentary Dispositions to
Compulsory Heirs
GR: The legitime should not be imputed to the
legitime, but to the free portion
 Thus, the GR is that the compulsory heir
gets the legitime + the testamentary
disposition
EXC: If the testator provides otherwise
 The testamentary disposition made in
favor of the heir will be merged with his
legitime
Class Discussion
Q: What does it mean when Art. 1063 says it will
“not be subject to collation”?
A: It will still be counted with the free portion,
rather than the legitime.
CASE: DIZON-RIVERA V. RIVERA
Facts: The decedent in this case executed a will
where she explicitly divided & bequeathed her
properties to her compulsory heirs, delineating
the partitions herself. Is there need for collation
in this case?
Held: NO. Collation would not apply in this case.
The decedent already took care of the
distribution & partition of the entire estate in
her will, without her having made any previous
donations during her lifetime which would
require collation to determine the legitime of
each heir nor having left merely some
properties by will which would call for the
application of Arts. 1061-1063 Civil Code on
collation.
Article 1064. When the grandchildren, who
survive with their uncles, aunts, or cousins,
inherit from their grandparents in
representation of their father or mother, they
shall bring to collation all that their parents, if
alive, would have been obliged to bring, even
though such grandchildren have not inherited
the property.
They shall also bring to collation all that they
may have received from the decedent during
his lifetime, unless the testator has provided
otherwise, in which case his wishes must be
respected, if the legitime of the co-heirs is not
prejudiced. (1038)
Collation as Imputation
This case refers to collation as imputation,
because it distinguishes between what will
pertain to the legitime & what to the free
portion.
Situations Covered by Art. 1064
Grandchildren who are inheriting –
 By representation concurrently with
children (uncles & aunts of the
grandchildren) who are inheriting in their
own right, or
 With other grandchildren (cousins of the
grandchildren).
What the Grandchildren have to Collate (i.e.,
impute to their legitime)
 Whatever the parent whom they are
representing would have been obliged to
collate; &
 Whatever they themselves have received
from the grandparent by gratuitous title
(subject to the same rules & exceptions in
Art. 1062)32
Question & Answer
Q: Let’s say a father inherited from the
grandfather a car. The father has died. But
before he died he sold the property. When the
grandfather dies must the value of the car still
be collated by the heirs?
A: Yes, the heirs would have to collate.
Class Discussion
Q: If X dies & he has, as his heirs, a son &
daughter and the children of a predeceased son.
32 Art. 1062. Collation shall not take place among
compulsory heirs if the donor should have so expressly
provided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious. (1036)
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May the children of the predeceased son
inherit?
A: The children of the predeceased son may
inherit by right of representation, representing
their father, X’s predeceased son.
However, the children will also be obliged to
collate the donations which their parents
received & the donations they themselves
received from X.
Q: Why would the children of the predeceased
son of X be required to collate the gifts they
themselves personally received to X?
A: Because the gifts are still subject to
imputation; the children of the predeceased son
of X are to receive from X’s estate, & must thus
also collate.
Article 1065. Parents are not obliged to bring
to collation in the inheritance of their
ascendants any property which may have been
donated by the latter [i.e., the ascendant] to
their children [i.e., grandchildren]. (1039)
Collation as Imputation
This case refers to collation as imputation,
because it distinguishes between what will
pertain to the legitime & what to the free
portion.
Against What Part of the Estate Imputable
The donation to the grandchild should be
imputed to the free portion; it is considered a
donation to a stranger
Article 1066. Neither shall donations to the
spouse of the child be brought to collation
 BUT if they have been given by the
parent to the spouses jointly, the child
shall be obliged to bring to collation ½ of
the thing donated. (1040)
Collation as Imputation
This case refers to collation as imputation,
because it distinguishes between what will
pertain to the legitime & what to the free
portion.
Donations to Son-in-Law or Daughter-in-Law
 Considered as donations made to a
stranger
 These are considered separate properties
of the donee, & should thus not be
imputed to the legitime of the donor’s
child (i.e., the donee’s spouse)
o UNLESS the donor provides for a
different designation
Donations Made to Spouses Jointly
 If the donation is made to the spouses
jointly –
o ½ belongs to the donor’s child & is
treated in accordance with Art. 1062
(i.e., imputed to the compulsory
heir’s legitime) &
 o ½ is the property of the donor’s son-
or daughter-in-law & should be
treated as a donation to a stranger.
 BUT: The presumption of equality of
aliquot shares will yield to a different
designation by the donor.
Consistency with Family Code
 For absolute community regime
o Art. 92 – exclusions from community
property include gifts property
acquired by a spouse during the
marriage by gratuitous title,
including its fruits & income
 UNLESS it is expressly
provided by the donor,
testator, or grantor that they
shall form part of the
community property.
 For conjugal partnership regime
o Art. 109 – exclusive property of each
spouse includes that which is
acquired by gratuitous title
o Art. 113 – Property donated or left
by will to the spouses, jointly & with
designation of determinate shares,
shall pertain to the donee-spouse as
his or her own exclusive property, &
in the absence of designation, share
and share alike, without prejudice to
the right of accretion when proper.
Class Discussion
Q: What happens to the share imputed to the
compulsory heir’s wife?
A: It would go into the computation of the free
portion, instead of the legitime of the
compulsory heir.
Q: What if the donation is made by the decedent
to both of them?
A: Then ½ will be included in the computation of
the legitime, while the other is included in the
free portion.
Article 1067. Expenses for support,
education, medical attendance, even in
extraordinary illness, apprenticeship, ordinary
equipment, or customary gifts are not subject
to collation. (1041)
Collation as Computation
The expenses mentioned in this Art. are not
included in the computation of the decedent’s
estate.
 This is a qualification of or an exception to
the rule in Art. 1061 (i.e., general rule on
collation of compulsory heirs)
Support in this Article
It does not fully follow the definition in Art. 194
of the Family Code;33 HOWEVER, the definition is
33 Art. 194: Support comprises everything indispensable for
dwelling, clothing, medical attendance, education, &
transportation, keeping with the financial capacity of the
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not the same, because Art. 1067 does NOT
include professional, vocational or other career
expenses, because that is dealt with under Art.
1068.
Class Discussion
Q: What happens to the amounts spent in Art.
1067 for the child’s support? Will it be imputed
in the legitime or the free portion?
A: NO, the amounts will not be included in the
computation of either the legitime or the free
portion.
Article 1068. Expenses incurred by the
parents in giving their children a professional,
vocational or other career shall not be brought
to collation unless
 The parents so provide, or
 They impair the legitime;
BUT when their collation is required, the sum
which the child would have spent if he had
lived in the house & company of his parents
shall be deducted therefrom. (1042a)
Collation as Imputation
This case refers to collation as imputation,
because it distinguishes between what will
pertain to the legitime & what to the free
portion.
Rules in Art. 1068
 Expenses incurred by the parents for the
child’s professional, vocational or other
career (i.e., courses beyond secondary
level) are NOT collated & imputed to said
child’s legitime, if they are not inofficious
o UNLESS the parents provide
otherwise
 These expenses should be computed for
the determination of the value of the
decedent’s estate
Effect of Contrary Provision by Parents
Under Art. 1068, the child is entitled to deduct
from the said amount the sum corresponding to
what his parents would have spent on him had
he stayed at home & loafed.
Class Discussion
Q: What happens to the amounts spent in Art.
1068 for the child’s support? Will it be imputed
in the legitime or the free portion?
A: They will be imputed in the free portion, not
the legitime, but the amount will be included
when computing the value of the decedent’s
estate.
Q: What is considered as secondary?
A: All the way up to high school.
family.
The education of the person entitled to be supported referred
to in the preceding paragraph shall include his schooling or
training for some profession, trade or vocation, even beyond
the age of majority. Transportation shall include expenses
going to & from school, or to & from work.
Q: What if you pass the bar exam & your father
gives you law books; is this collatable?
A: In terms of computation, it is collatable; but
in terms of imputation, it may only be added to
the free portion, and not to the legitime.
CASE: ADAN V. CASILI
Facts: Felix Adan received from his mother
(decedent) during her lifetime various sums
aggregating P3,000 for his expenses while
studying surveying in Manila. The other heirs
claimed that ½ of the sums (i.e., P1,500) should
be brought into collation, as it encroached upon
their legitime. Is their contention correct?
Held: YES. The career of surveyor is a
professional one. Since the expenses incurred
by Felix’s mother in giving him that career
encroached upon the legitime, it is proper to
collate ½ of the amount spent by her for him
during the 2 years he studied surveying, the
other ½ being considered as the amount which
Felix would have spent if he had lived in the
house & company of his mother.
Article 1069. Any sums paid by a parent –
 In satisfaction of the debts of his children,
 Election expenses,
 Fines, &
 Similar expenses
shall be brought to collation. (1043a)
Collation as Imputation
This case refers to collation as imputation,
because it distinguishes between what will
pertain to the legitime & what to the free
portion.
Ratio Behind Art. 1069
The items in the Art. are donations by the
parent to the child; they are thus treated like
other donations to compulsory heirs under Art.
1062.
Q: X runs for the office of barangay chairman. Y,
his father, contributes P1,000 to X for the
electoral campaign. Is this considered
collatable?
A: Yes, this is collatable & will be imputed to Y’s
legitime.
Q: What if the son of X, Y, goes to the casino &
loses P1,000 & weeps. X then gives him P1M. Is
this considered a donation?
A: Yes, falling under the “similar expenses.”
Article 1070. Wedding gifts by parents &
ascendants consisting of jewelry, clothing, &
outfit, shall not be reduced as inofficious except
insofar as they may exceed 1/10 of the sum
which is disposable by will. (1044) [MEL ASKED]
Scope & Operation of Art. 1070
 Covered: Wedding gifts consisting of –
o Jewelry
o Clothing
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o Wedding outfit
 Other properties, real or personal, are
governed by Art. 1062 (i.e., generally
subject to collation)
Literal Construction of Art. 1070
 The value of the wedding gifts CANNOT go
beyond 1/10 of the free portion of the
donor’s estate
 Any excess will be considered inofficious &
will b returned as if it were an inofficious
donation
 As to the allowable 1/10, that will be
imputable to the free portion
Manresa’s Construction of Art. 1070
 The gift will be imputed to the free portion
to the extent of the 1/10 of the free
portion
 Beyond the value, the excess will be
imputable to the recipient’s legitime
Balane’s Take on Art. 1070
 They should have just put this under the
general rule in Art. 1062
 Let’s just bury this provision alive. Fo srs.
Article 1071. The same things donated are not
to be brought to collation & 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 &
even their total loss or destruction, be it
accidental or culpable, shall be for the benefit or
account & risk of the donee. (1045a)
Type of Collation
Art. 1071 pertains to collation as both
computation & imputation.
What Value is to be Computed & Imputed
1. Only the value of the thing donated at the
time the donation was made should be
considered in the computation of the
donor’s estate. (Art. 90834 provides the
same)
2. Similarly, only the thing’s value at the
time the donation was made should be
imputed, whether to the legitime or the
free portion.
Reason
Any appreciation or depreciation of the thing
after that time should be for the donee’s
account, since the donation transfers ownership
to him.
34 Art. 908. To determine the legitime, the value of the
property left at the death of the testator shall be considered,
deducting all debts & charges, which shall not include those
imposed in the will.
To the net value of the hereditary estate, shall be added the
value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
  This it the principle of res perit domino.
 The value of the property after the date of
the giving is not subject to collation.
Article 1072. In the collation of a donation
made by both parents, ½ shall be brought to the
inheritance of the father, & the ½, to that of the
mother. That given by one alone shall be
brought to collation in his or her inheritance.
(1046a)
Type of Collation
Art. 1072 pertains to collation as both
computation & imputation.
Joint Donations
 The first sentence of this Art. presupposes
either a regime of absolute community or
of conjugal partnership between the donor
spouses.
 A joint donation by them will be treated,
upon the dissolution of the property
regime, as pertaining in equal shares to
the estate of each.
Donations by One Parent Alone
Donation will be of separately-owned property &
should be treated as such.
Article 1073. The donee's share of the estate
shall be reduced by an amount equal to that
already received by him; & his co-heirs shall
receive an equivalent, as much as possible, in
property of the same nature, class, & quality.
(1047)
Type of Collation
Art. 1072 pertains to collation as imputation.
Requirement of Art. 1073
 Art. 1073 requires not only equivalence in
amount, but, as far as possible, also in the
kind of property received.
 BUT: This yields to a different agreement
among the heirs.
Article 1074. Should the provisions of the
preceding article be impracticable –
 If the property donated was immovable,
the co-heirs shall be entitled to receive its
equivalent in cash or securities, at the
rate of quotation; & should there be [no]
cash or marketable securities in the
estate, so much of the other property as
may be necessary shall be sold at public
auction.
 If the property donated was movable, the
co-heirs shall only have a right to select
an equivalent of other personal property
of the inheritance at its just price. (1048)
Contrary Agreements
This Art. yields to a contrary agreement among
the heirs.
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Article 1075. The fruits & interest of the
property subject to collation shall not pertain to
the estate except from the day on which the
succession is opened.
For the purpose of ascertaining their amount,
the fruits & interest of the property of the estate
of the same kind & quality as that subject to
collation shall be made the standard of
assessment. (1049)
Type of Collation
Art. 1075 pertains to collation in terms of return.
Rationale
If any donation turns out to be inofficious, then
the obligation to return it to the estate arises as
of the time the succession vests (i.e., the time
of the decedent’s death), because it is from that
time that the compulsory heir’s right to the
inheritance becomes absolute. From that time,
the compulsory heir is entitled to the fruits.
Extent of Right to Fruits
If the donation is The entirety of the
totally inofficious fruits & interests shall
pertain to the
compulsory heir
If the donation is The right to the fruits
partially inofficious & interests shall be
prorated between the
compulsory heir & the
donee, in proportion to
their respective
interests over the
property.
Article 1076. The co-heirs are bound to
reimburse to the donee the necessary expenses
which he has incurred for the preservation of
the property donated to him, though they may
not have augmented its value.
The donee who collates in kind an immovable
which has been given to him must be
reimbursed by his co-heirs for the
improvements which have increased the value
of the property, & which exist at the time the
partition if effected.
As to works made on the estate for the mere
pleasure of the donee, no reimbursement is due
him for them; he has, however, the right to
remove them, if he can do so without injuring
the estate. (n)
Type of Collation
Art. 1076 pertains to collation in terms of return.
If Thing Has to be Returned in its Entirety (Total
Return) [asked by MEL]
Necessary expenses35 Reimbursement must
35 ART. 546, par. 1. Necessary expenses shall be refunded to
every possessor; but only the possessor in good faith may
retain the thing until he has been reimbursed therefor.
[Necessary expenses – necessary for reservation]
 be to the full extent of
the expenses incurred Article 1077. Should any question arise among
Useful expenses Reimbursement must the co-heirs upon the obligation to bring to
be to the full extent, collation or as to the things which are subject to
provided that the collation, the distribution of the estate shall not
improvement is still in be interrupted for this reason, provided
existence adequate security is given. (1050)
Ornamental expenses No reimbursement
demandable, but right Partial Division & Distribution
of removal granted if  The division & distribution of the estate
no injury to the estate can be made partially, should there be
will be caused dispute as to the inclusion of certain items
either in the computation of the estate’s
If Thing is Only Partially Inofficious (Partial value or the imputation of heirs’ shares.
Return) [asked by MEL]  The distribution can proceed on the items
Necessary expenses The reimbursement is that are not controverted.
Useful expenses also partial, in
proportion to the value SECTION 6. Partition and Distribution of
to be returned the Estate
Ornamental expenses No reimbursement
demandable, but right SUBSECTION 1. Partition
of removal granted if
no injury to the estate GENERAL DISCUSSION
will be caused
 UNLESS the Partition & Succession
property is  Successional rights vest upon the
physically divided & successors (H/L/D)37 upon the decedent’s
the ornament death
happens to be o What the successors acquire vested
located in the rights over is the net estate, which
portion assigned to consists of –
the donee, in which  What remains after all debts
case he will have all are paid
the rights of  The value of all donations inter
ownership vivos
 BUT: If the decedent’s gross assets exceed
Confusion in Terminology his liabilities, or if there are inofficious
 The situation treated in this article is donations to be returned, his net passes
really a case of reduction of inofficious to his successors at the precise moment
donations (NOT strictly collation) of his death
 The rules set forth in this article really
belong in the provisions on inofficious Immediate Effect of Decedent’s Death
donations in Arts. 909, 910, & 91136  The estate consists of a mass of
properties, usually of various items.
ART. 546, par. 2. Useful expenses shall be refunded only to the  THUS: The immediate effect of the
possessor in good faith with the same right of retention, the
person who has defeated him in the possession having the decedent’s death — as far as succession
option of refunding the amount of the expenses or of paying is concerned — is a co-ownership of the
the increase in value which the thing may have acquired by heirs over the entire mass.
reason thereof. (453a) [Useful expenses – increases the value
of the property; is beneficial for everyone]
ART. 548. Expenses for pure luxury or mere pleasure shall not
be refunded to the possessor in good faith; but he may Art. 911. After the legitime has been determined in
remove the ornaments with which he has embellished the accordance with the three preceding articles, the reduction
principal thing if it suffers no injury thereby, and if his shall be made as
successor in the possession does not prefer to refund the (1) Donations shall be respected as long as the legitime can
amount expended. (454) [Ornamental expenses – for luxury] be covered, reducing or annulling, if necessary, the devises or
36 Art. 909. Donations given to children shall be charged to legacies made in the will;
(2) The reduction of the devises or legacies shall be pro rata,
their legitime. Donations made to strangers shall be charged without any distinction whatever. If the testator has directed
to that part of the estate of which the testator could have that a certain devise or legacy be paid in preference to others,
disposed by his last will. it shall not suffer any reduction until the latter have been
Insofar as they may be inofficious or may exceed the applied in full to the payment of the legitime.
disposable portion, they shall be reduced according to the (3) If the devise or legacy consists of a usufruct or life annuity,
rules established by this Code. (819a) whose value may be considered greater than that of the
Art. 910. Donations which an illegitimate child may have disposable portion, the compulsory heirs may choose between
received during the lifetime of his father or mother, shall be complying with the testamentary provision and delivering to
charged to his legitime. the devisee or legatee the part of the inheritance of which the
Should they exceed the portion that can be freely disposed of, testator could freely dispose. (820a)
they shall be reduced in the manner prescribed by this Code.
(847a) 37 Heirs, legatees, devisees
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  The Lee/Dees will also acquire a right to
the specific items given to them,
assuming the legacies & devises are not
inofficious
Sequence of Events: Partition
1. Upon decedent’s death — co-ownership of
heirs over net hereditary or partible estate
2. Subsequent partition, either through –
a. By extrajudicial agreement among
the heirs (Rule 74, Sec. 1, RRC), or
b. Through judicial order in appropriate
settlement proceedings (Rule 90,
RRC)
 Partition involves substantive
procedural law
Article 1078. Where there are two or more
heirs, the whole estate of the decedent is,
before its partition, owned in common by such
heirs, subject to the payment of debts of the
deceased. (n)
Article 1079. Partition, in general, is the
separation, division, & assignment of a thing
held in common among those to whom it may
belong. The thing itself may be divided, or its
value. (n)
Effect of Partition
Partition ends the co-ownership among the co-
heirs as regards the thing partitioned.
Kinds of Partition
1. Actual – physical division of the thing
among co-heirs
2. Constructive – any act, other than physical
division, which terminates the co-
ownership (such as sale to a third person
*Article 1080. Should a person make partition
of his estate by an act inter vivos, or by will,
such partition shall be respected, insofar as it
does not prejudice the legitime of the
compulsory heirs.
A parent who, in the interest of his or her
family, desires to keep any agricultural,
industrial, or manufacturing enterprise intact,
may avail himself of the right granted him in
this Art., by ordering that the legitime of the
other children to whom the property is not
assigned, be paid in cash. (1056a)
Partition by the Causante (Decedent)
The decedent himself can effect the partition of
his estate
Characteristics of Partition by the Causante
1. It takes effect only upon death
 This is because succession as a
mode of transfer is necessarily
mortis causa
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2. It is revocable as long as the causante is
alive; hence, the causante can change,
modify, rescind it during his lifetime
Legitime Cannot be Impaired
In no case may the legitime of compulsory heirs
be impaired by partition.
How Causante May Make the Partition
1. By will
2. By act inter vivos
 Oral Partitions
o Some authorities believe that
a partition inter vivos should
& be in writing & in a public
instrument to be valid (Fajardo
v. Fajardo, 1930)
o BUT there is also authority to
state that oral partitions are
valid (Chavez v. IAC, 1990)
o Oral partition as between
heirs is valid as long as no
creditors are affected (Heirs of
P. Ureta v. Heirs of L. Ureta,
2011)
 In a partition inter vivos, must there
be a prior will?
CASE: CHAVEZ V. IAC
Facts: Manuela had 6 children. During Manuela’s
lifetime, her daughter Concepcion had already
acquired the undivided shares of her siblings
Presentacion, Florsepina, & Raquel to property
they would eventually have inherited via Deeds
of Sale, becoming the owner of a total of 4/6 of
the land, with her brothers as owners of the
remaining 2/6 shares. Despite the transfers or
assignments her children had executed with her
conformity, 10 years later, Manuela signed a
Deed of Sale of the entire property in favor of
her daughter Raquel & her husband Gerardo.
Held: The SC held that Deeds of Sale (among
the siblings) were evidence of a valid partition
of the land to which Manuela gave her authority.
They are not contracts entered into with respect
to a future inheritance but a contract perfected
and consummated during the lifetime of
Manuela & are thus a partition inter vivos which
is valid. Under Art. 1080, when a person makes
a partition by will, it is imperative that such
partition be executed in accordance with the
provisions of the law on will. However, when a
person makes the partition of his estate by an
act inter vivos, such partition may even be oral
or written & need not be in the form of a will,
provided the partition does not prejudice the
legitime of compulsory heirs. An oral partition
may be sustained on the ground that the parties
have acquiesced in & ratified the partition by
taking possession in severalty, exercising acts of
ownership with respect thereto, or otherwise
recognizing the existence of the partition. It
would be unjust & inequitable to allow Manuela
to revoke the sales she herself authorized only
to execute a simulated sale in favor of her
daughter Raquel who already profited from the
sale.
CASE: LEGASTO V. VERSOZA
Facts: Sabina executed a will devising certain
parcels of land to her 4 nieces, giving parcels of
land to each. After, she partitioned the property
among her sisters & nieces. The assignee-nieces
already took over possession of their designated
parcels. When Sabina died, however, her will
was not admitted into probate for it lacked some
essential requisites for validity. Did Sabina
validly make a partition of her property among
her nieces?
Held: NO. A distinction must be made between
the disposition of property & its partition.
When it comes to the disposition of the property
of the decedent, the decedent designates who
will be considered his H/L/Ds. Said act must
necessarily appear in a will, for it must comply
with the appropriate formalities.
When it comes to the partition or division of the
properties in conformity with that disposition,
the testator may make this division in the same
will or in another will, or by an act inter vivos. In
making the partition, the formal solemnities
needed in testamentary wills are not necessary.
Neither is it necessary to observe the special
formalities required in case of donations,
because it is not a matter of disposing
gratuitously of properties, but of dividing those
which already have been legally disposed of.
Thus, a testator may, by an act inter vivos,
partition his property, but he must first make a
will with all the formalities provided for by law.
Without a will, there can be no testator; when
the law, therefore, speaks of the partition inter
vivos made by the testator of his property, it
necessarily refers to that property which he has
already devised, via will, to his heirs. A person
who disposes of his property gratis inter vivos is
not called a testator, but a donor. In employing
the word “testator,” the law evidently desired to
distinguish between one who freely donates his
property in life and one who disposes of it by
will to take effect after his death.
In this case, Sabina’s will was disallowed for not
having all essential requisites. Thus, the
partition made by the same testatrix, in
accordance with her will, is invalid.
Legasto Era under the Old Civil Code
 A partition inter vivos is valid only if there
is a supporting will on which the partition
is based
 The partition inter vivos is void even if a
subsequent will is executed in conformity
Changes in the New Civil Code
The old Civil Code used to say “testator,” but
the new Civil Code now states “person.”
 Because this, under the PRESENT
provision, a partition inter vivos can be
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validly made even without a supporting
will, provided it is not used to make mortis
causa dispositions
 BUT: The ONLY type of partition without a
will that can still be valid is one which
follows strictly the intestate portions
provided by law
o THUS: The partition should conform
exactly to the portions provided by
law in intestate succession, for then,
the causante would not be making
testamentary dispositions in the
partition – the dispositions would be
by virtue of intestate succession
Class Discussion
Q: Supposing the testator left 2 documents, one
in the form of a will and the other not in the
form of a will. In the document in the form of the
will he designated his heirs, but the document
not in the form of the will stated that there will
be a partition in accordance with the will that is
in proper form. Is this valid?
A: The partitioning would be valid because it
relies on the valid formal will.
Q: Can the decedent make a valid act inter vivos
without a will?
A: Yes, if it conforms with the rules on intestate
succession.
Limitation on Partition by Causante
The legitimes of the causante’s compulsory
heirs cannot be impaired by partition made by
him, whether in a will or by an act inter vivos.
Partition to Keep an Enterprise Intact (Par. 2)
 Only a parent has this privilege
 Privilege can only be exercised if there is
enough cash or property available to
satisfy the legitimes of the other children,
since legitimes cannot be impaired
CASE: JLT AGRO, INC. V. BALANSAG
Facts: Don Julian Teves had 2 marriages, first
with Antonia (with whom he had 2 children) &
after her death with Milagros (with whom he had
4 children). The present controversy involves a
parcel of land which was originally registered in
the name of the conjugal partnership of Don
Julian & Antonia. When Antonia died, the land
was included in an Action for Partition &
Damages, after which the parties entered into a
Compromise Agreement which embodied the
partition of all the properties of Don Julian. The
CFI declared a tract of land (Hacienda Medalla
Milagrosa) as property owned in common by
Don Julian and the 2 children from his 1 st
marriage.
Don Julian & his children from the 1 st marriage
executed a Deed of Assignment of Assets with
Assumption of Liabilities in favor of J.L.T. Agro,
Inc. Afterwards, Don Julian died intestate. J.L.T.
Agro sought registration of the property in its
name, and it appeared that a court ordered a
TCT to be issued in its name.
Meanwhile, the 2nd wife, Milagros & her children,
had taken possession over the subject lot
pursuant to the Compromise Agreement.
Subsequently, they executed a Deed of
Extrajudicial Partition. Unaware that the subject
lot was already registered in JLT Agro’s name,
Antonio Ba& Hilaria purchased the lot from
Milagros. It was only at the Register of Deeds
that Balansag & Cadayday discovered that the
lot was already titled in JLT Agro’s name. Was
the partitioning of Don Julian’s property during
his lifetime valid?
Held: YES. The general rule is that all things,
even future ones, which are not outside the
commerce of man, may be the object of a
contract. The exception is that no contract may
be entered into with respect to future
inheritance. However, an exception to this
exception is partition inter vivos under Art.
1080. Such partition is neither a donation nor a
testament, but an instrument of a special
character, sui generis, which is revocable at any
time by the causante during his lifetime & does
not operate as a conveyance of title until his
death.
The partition is undoubtedly valid; however,
considering that it would become legally
operative only upon the death of Don Julian, the
right of his heirs from the 2 nd marriage to the
properties adjudicated to him under the
Compromise Agreement was but a mere
expectancy. It was a bare hope of succession to
the property of their father. Thus, at the time of
execution of the Deed of Assignment (in favor of
JLT Agro), Don Julian remained the owner of the
property, and thus it was he who retained the
absolute right to dispose of it during his lifetime.
His right cannot be challenged by Milagros (2 nd
wife) & her children on the ground that it had
already been adjudicated to them by virtue of
the Compromise Agreement.
CASE: CASILANG V. CASILANG-DIZON
Facts: Liborio & Francisco had 8 kids, including
Jose & Ireneo. Ireneo’s kid, Rosario, filed an
action for unlawful detainer against her uncle,
Jose, over a piece of property. The tax
declaration of the property was under her
father’s name. However, Jose claimed he
acquired the property via intestate succession
from his parents. The trial court ruled in favor of
Rosario. Afterwards, however, the children of the
other kids filed an action for annulment of the
documents, etc. which showed Rosario as
owner. They alleged that all 8 kids of Liborio &
Francisco had already entered into an oral
partitioning of the property in question, & Jose
was precisely living on said property during the
oral partition, & that for years, all kids respected
this oral partition. Rosario claims that, at most,
this agreement was valid but unenforceable.
Was the oral partition valid?
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Held: YES. The parties’ verbal partition is valid &
has been ratified by their taking possession of
their respective shares. The Statute of Frauds
has no operation in oral agreements for the
partition of property owned in common, for
partition is not a conveyance of property but
simply a segregation and designation of the part
of the property which belong to the co-owners.
A parol partition may be sustained:
 On the ground of estoppel of the parties
 On the ground that the parties have
acquiesced in and ratified the partition by
taking possession in severalty, exercising
acts of ownership with respect thereto, or
otherwise recognizing the existence of the
partition (partial performance)
In the case at bar, Jose’s possession of the lot
under claim of ownership is well-borne out of
the records & consistent with the claimed verbal
partition with his siblings & fully corroborated by
his sisters.
A possessor of real estate property is presumed
to have title thereto unless the adverse claimant
establishes a better right. Actual possession
under a claim of ownership raises a disputable
presumption of ownership. Thus, actual
possession and exercise of dominion over
definite portions of the property in accordance
with an alleged partition are considered strong
proof of an oral partition which the Court will not
hesitate to uphold.
CASE: ALEJANDRA ARADO HEIRS V. ALCORAN
Facts: Raymundo & Joaquina had 1 child,
Nicolas. Nicolas, on the other hand, though
married to Florencia (with whom he had no
children), had 1 illegitimate child, Anacleto, from
an extramarital affair. After Nicole, Raymundo &
Joaquina died, Anacleto took over their
properties. The heirs of Florencia (petitioners)
filed suit against Anacleto, claiming that the
latter had no right to inherit from his
grandparents, Raymundo & Joaquina. Anacleto,
however, said that he was named as an heir by
Joaquina in the latter’s will. Can Anacleto inherit
from his grandparents? And if so, do the
petitioners in this case have a right to seek
reconvenyance of the property to them?
Held: NO to both.
1. Anacleto was barred by law from inheriting
from the estate of Joaquina. To start with,
Anacleto could not inherit from Joaquina by right
of representation of Nicolas, the legitimate son
of Joaquina. An illegitimate child has no right to
inherit ab intestato from the legitimate children
& relatives of his parents. The right of
representation is not available to illegitimate
descendants of legitimate children in the
inheritance of a legitimate grandparent. Also,
Anacleto could not inherit from the estate of
Joaquina by virtue of the latter's last will, as no
will shall pass either real or personal property
unless the same is proved and allowed in
accordance with the Rules of Court. And in order
that a will may take effect, "it has to be
probated, legalized or allowed in the proper
testamentary proceeding. The probate of the
will is mandatory." It appears that such will
remained ineffective considering that the
records are silent as to whether it had ever been
presented for probate, and had been allowed by
a court of competent jurisdiction. In the absence
of proof showing that the supposed will of
Joaquina had been duly approved by the
competent court, it cannot be considered as
proved. Hence, Joaquina cannot have
bequeathed her properties to Anacleto by will.
As the petitioners were among the collateral
relatives of Joaquina, they are the ones entitled
to inherit from her estate.
2. Nonetheless, the petitioners' appeal still fails
because the parties did not establish that the
estates of Raymundo, Nicolas and Joaquina had
been respectively settled with finality through
the appropriate testate or intestate
proceedings, and partitioned in due course.
Unless there was a proper and valid partition of
the assets of the respective estates of
Raymundo, Nicolas and Joaquina, whether
extrajudicially or judicially, their heirs could not
adjudicate unto themselves and claim specific
portions of their estates. Unless a project of
partition is effected, each heir cannot claim
ownership over a definite portion of the
inheritance. Without partition, either by
agreement between the parties or by judicial
proceeding, a co-heir cannot dispose of a
specific portion of the estate. For where there
are two or more heirs, the whole estate of the
decedent is, before its partition, owned in
common by such heirs. Upon the death of a
person, each of his heirs becomes the undivided
owner of the whole estate left with respect to
the part or portion which might be adjudicated
to him, a community of ownership being thus
formed among the co-owners of the estate or
co-heirs while it remains undivided.
Without the showing that the respective estates
of Raymundo, Nicolas and Joaquina had been
previously partitioned, none of the parties
herein can lay claim over any of the disputed
specific properties. The petitioners cannot
contend, therefore, that they were the rightful
owners of the properties of the late Joaquina to
the exclusion of Anacleto.
Article 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 mandatory, in such
case, shall make an inventory of the property of
the estate, after notifying the co-heirs, the
creditors, and the legatees or devisees. (1057a)
Mandatary Cannot be Co-Heir
This is for the sake of fairness & impartiality.
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Class Discussion
Q: If among the heirs, there is a minor, can
there be an extrajudicial partition?
A: As a general rule, NO, unless the minor is
represented by a guardian. But in Art. 1080 &
1081, even if there is no guardian for the minor,
the partition would be allowed.
Article 1082. Every act which is intended to
put an end to indivision among co-heirs &
legatees or devisees is deemed to be a
partition, although it should purport to be a sale,
an exchange, a compromise, or any other
transaction. (n)
Constructive Partition
Art. 1082 pertains to situations where there is
actual partition.
CASE: TUASON & TUASON, JR. V. GREGORIO ARANETA,
INC.
Facts: Angela, Nieves & Antonio were co-owners
of a parcel of land. The 3 of them agreed to sell
their 1/3 shares to Gregorio Araneta, Inc. (GAI),
after subdividing the property into small lots.
This was embodied in a written memorandum.
Before, during, & after this transaction was
perfected, Angela was being represented by
Antonio Araneta; the latter was also a member
of the Board of GAI. Later, however, Angela
wanted the contract rescinded, & revoked the
power of attorney she granted to Antonio. She
asked instead that the property in common be
partitioned. For this, she filed a complaint
asking the court to order a partition of the
property & that she be given 1/3 of the same.
She anchored her case on Art. 400, which
provides that no co-owner is obliged to remain a
party to the community & each may, at any
time, demand the partition. Will her petition
prosper?
Held: NO. The contract, far from violating the
legal provision that forbids a co-owner being
obliged to remain a party to the community,
precisely has for its purpose the dissolution of
the co-ownership & of the community by selling
the parcel held in common & dividing the
proceeds of the sale among the co-owners. The
obligation imposed in the contract to preserve
the co-ownership until all the lots shall have
been sold, is a mere incident to the main object
of dissolving the co-ownership. By virtue of their
agreement, the parties thereto practically
entered into a contract of partnership as the
most expedient means of eventually dissolving
the co-ownership, the life of said partnership to
end when the object of its creation shall have
been attained.
Class Notes: In this case, it was essentially held
that there was constructive partition, which is
why the limitations on the prohibition on
partition would not apply.
CASE: ALEJANDRINO V. CA
Facts: The late Sps. Alejandrino left their 6
children (Marcelino, Gregorio, Ciriaco, Mauricia,
Laurencia, Abundio) a 219-sq. m. lot, with each
child supposedly receiving 36.5 sq. m. However,
the estate of the Sps. Alejandrino was not
settled in accordance with the procedure
outlined in the Rules of Court. Mauricia, one of
the children, allegedly purchased some of
Gregorio’s & Abundio’s share as well as the
whole of Ciriaco’s share. However, a 3 rd party,
Licerio Nique, allegedly purchased specific
portions of the property from the children
through Laurencia. Was the sale to Licerio of
specific property validly made?
Held: NO. The sale of specific portions of
property were not validly made; however, the
acts of the heirs in this case in attempting to
alienate their properties can be deemed a
partition as contemplated by Art. 1082.
1. SC held that a co-owner has the right to
alienate his pro-indiviso share in the co-owned
property even without the consent of the other
owners; nevertheless, as a mere part owner, he
cannot alienate the shares of the other co-
owners.
2. Art 1082 provides that every act which is
intended to put an end to indivision among co-
heirs … is deemed to be a partition, although it
should purport to be a sale, an exchange, a
compromise, or any other transaction. IN the
case at bar, Laurencia expressed her intention
to terminate the co-ownership by selling her
share to Nique. Further, the execution of the
Deed of Extrajudicial Settlement of the Estate
reflected the intention of both Mauricia &
Laurence to physically divide the property. Both
of them had acquired the shares of their
brothers and therefore it was only the 2 of them
that needed to settle the estate. Thus, the RTC
did not abuse its discretion in issuing the Order
for the Segregation of the Property because in
so doing, it merely reiterated the partition by
Mauricia & Laurencia embodied in the Deed of
Extrajudicial Settlement.
Article 1083. Every co-heir has a right to
demand the division of the estate unless the
testator should have expressly forbidden its
partition, in which case the period of indivision
shall not exceed 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 when any of the causes
for which partnership is dissolved takes place,
or when the court finds for compelling reasons
that division should be ordered, upon petition of
one of the co-heirs. (1051a)
Partition
GR: Any co-heir may demand partition at any
time as a matter of right.
EXC: Partition may not be demanded when –
(1) The testator forbids it, but only for a
period not exceeding 20 years
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
This may cover even the legitimes

EXC: Despite the imposed indivision,
partition may be demanded when –
o Any of the causes for the
dissolution of a partnership38
occurs
o The court finds compelling
reasons for partition
(2) When the co-heirs agree on indivision
(3) When the law prohibits partition
 Art. 159, Family Code – The family
home shall continue despite the
death of one or both spouses or of
the unmarried head of the family
for a period of 10 years or for as
long as there is a minor
beneficiary, and the heirs cannot
partition the same unless the court
finds compelling reasons therefor.
 This rule shall apply regardless of
whoever owns the property or
constituted the family home.
M: If there is a prohibition for 30 years, the
provision will be considered void to the extent of
10 years (the excess of 20) and valid as to the
first 20 years.
CASE: SANTIAGO V. SANTIAGO
Facts: Basilio contracted 3 marriages: the first to
Bibiana, the second to Irene, & the third to
Cecilia. Basilio and his first wife bore two
offsprings, Irene & Marta, the mother of herein
oppositors. Basilio & his second wife had 6
offsprings, including respondents Zoilo &
Felicidad, & petitioner Ma. Pilar, all surnamed
38 Art. 1830. Dissolution is caused:
(1) Without violation of the agreement between the partners:
(a) By the termination of the definite term or particular
undertaking specified in the agreement;
(b) By the express will of any partner, who must act in
good faith, when no definite term or particular is
specified;
(c) By the express will of all the partners who have not
assigned their interests or suffered them to be
charged for their separate debts, either before or after
the termination of any specified term or particular
undertaking;
(d) By the expulsion of any partner from the business
bona fide in accordance with such a power conferred
by the agreement between the partners;
(2) In contravention of the agreement between the partners,
where the circumstances do not permit a dissolution under
any other provision of this article, by the express will of any
partner at any time;
(3) By any event which makes it unlawful for the business of
the partnership to be carried on or for the members to carry it
on in partnership;
(4) When a specific thing which a partner had promised to
contribute to the partnership, perishes before the delivery; in
any case by the loss of the thing, when the partner who
contributed it having reserved the ownership thereof, has only
transferred to the partnership the use or enjoyment of the
same; but the partnership shall not be dissolved by the loss of
the thing when it occurs after the partnership has acquired
the ownership thereof;
(5) By the death of any partner;
(6) By the insolvency of any partner or of the partnership;
(7) By the civil interdiction of any partner;
(8) By decree of court under the following article. (1700a and
1701a)
Santiago. Basilio & his third wife bore three
children, Eugenia herein petitioner Clemente,
and Cleotilde, all surnamed Santiago.
One of the provision of the will state that “e)
Ang lupat bahay sa Lunsod ng Maynila na
nasasaysay sa itaas na 2(c) ay ililipat at ilalagay
sa pangalan nila Ma. Pilar at Clemente hindi
bilang pamana ko sa kanila kundi upang
pamahalaan at pangalagaan lamang nila at
nang ang sinoman sa aking mga anak sampu ng
apo at kaapuapuhan ko sa habang panahon ay
may tutuluyan kung magnanais na mag-aral sa
Maynila o kalapit na mga lunsod x x x.”
After the executrix-petitioner Ma. Pilar filed a
Final Accounting, Partition and Distribution in
Accordance with the Will, the probate court
approved the will by Order of August 14, 1978
and directed the registers of deeds of Bulacan
and Manila to register the certificates of title
indicated therein. The oppositors-heirs of the
first marriage thereupon filed a complaint for
completion of legitime against the heirs of the
second and third marriages. The latter opposed,
claiming that the decree of distribution of
Basilio’s estate should be undisturbed. Is this
contention correct?
Held: NO. It is clear from Basilio’s will that he
intended the house and lot in Manila to be
transferred in petitioners’ names for
administration purposes only, & that the
property be owned by the heirs in common. But
the condition set by the decedent on the
property’s indivisibility is subject to a statutory
limitation. On this point, the Court agrees with
the ruling of the appellate court: “ For this Court
to sustain without qualification petitioners’
contention is to go against the provisions of law,
particularly Articles 494, 870, & 1083 of the Civil
Code, which provide that the prohibition to
divide a property in a co-ownership can only last
for 20 years. Although the Civil Code is silent as
to the effect of the indivision of a property for
more than 20 years, it would be contrary to
public policy to sanction co-ownership beyond
the period expressly mandated by the Civil Code
CASE: INANG V. VEGA
Facts: Leon Roldan died without issue & was
survived by his siblings Romana & Gregoria.
Romana was survived by her daughter
Anunciacion Vega & grandson Leonardo.
Leonardo, acting on the claim that Romana’s ½
share in Leon’s estate belonged to him as
Romana’s surviving heir, filed an Action for
Partition, alleging that he made demands
therefor which demands were refused by
Gregoria’s heirs, who traced their ownership to
a disposition made by Leon (decedent) to
Enriquez who sold it to Lucimo Sr. The complaint
(of Leonardo for partition) was dismissed on the
ground that the right of action had prescribed.
Has the action prescribed?
Held: NO. Since Leon (decedent) died without
issues, his heirs were his siblings Romana and
Gregoria and their heirs became co-owners of
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the property. Each co-owner may demand at
any time the partition of the thing owned in
common insofar as his share is concerned. No
prescription shall run in favor of one of the co-
heirs against the others so long as he expressly
or impliedly recognizes the co-ownership. For
prescription to set in, repudiation must be done
by a co-owner.
Lucimo Sr.’s acts of challenging Leonardo’s
ownership (by executing an Affidavit of
Ownership of Land, obtaining a new tax
declaration exclusively in his name, withholding
Leonardo’s share in the fruits of the property) in
1979/1980 – were erroneously appreciated by
the lower courts. The SC said that while it may
be argued that these acts were of repudiation
by Lucimo Sr., the fact remains that he is not a
co-owner of the property. He is not even an heir
of Gregoria; he is merely a relative by affinity,
being married to Antipolo’s daughter Teodora.
Not being a co-owner, consequently Lucimo Sr.
cannot validly effect a repudiation of the co-
ownership, of which he was never a part. For
this reason, prescription did not run adversely
against Leonardo and his right to seek a
partition of the property has not been lost.
Article 1084. Voluntary heirs upon whom some
condition has been imposed cannot demand a
partition until the condition has been fulfilled
 BUT the other co-heirs may demand it by
giving sufficient security for the rights
which the former may have in case the
condition should be complied with, & 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. (1054a)
When Art. 1084 Applies
In institutions with a suspensive condition
Rationale Behind Art. 1084
1. The heir instituted under a suspensive
condition acquires no rights unless & until
the condition happens
2. The other heirs not so instituted, however,
should not be deprived of their right to
demand partition as long as they protect
the inchoate right of the conditional heir
Class Discussion
Q: Can this Art. apply to compulsory heirs?
A: NO. This can only apply to voluntary heirs
where there is a suspensive condition.
Article 1085. In the partition of the estate,
equality shall be observed as far as possible,
dividing the property into lots, or assigning to
each of the co-heirs things of the same nature,
quality & kind. (1061)
Equality Among Co-Heirs
 1. Quantitative – the shares of the co-heirs
are not necessarily equal in value, but are
determined by law & by will
2. Qualitative – whatever aliquot portions be,
however, the law mandates equality in
nature, kind, & quality
a. Ex. If A gets a parcel of Riceland, B
should also be given one.
*NOTE: The law considers both qualitative &
quantitative equality as ideal.
Exceptions to Qualitative Equality
1. If the causante has made the partition
himself
2. If the co-heirs otherwise agree
3. If qualitative equality is impossible or
impracticable
Class Discussion
Q: There is a property that is 100 hectares. Can
this property just be divided equally among the
heirs?
A: YES, that is possible.
Q: But that would be numerical equality. What
about qualitative equality?
A: Qualitative equality must also be observed as
much as possible; so this should also be
considered.
Q: Supposing the estate consists of 4 houses.
Can they just decide to divide one house per
heir?
A: NO, it must be determined that the houses
are of equal value,
Q: What about if each of the 4 house have only
a P10 difference between one another. Is it valid
to give each heir one?
A: YES, the difference is quite minor.
Article 1086. Should a thing be indivisible, or
would be much impaired by its being divided, it
may be adjudicated to one of the heirs,
 PROVIDED he shall pay the others the
excess in cash.
Nevertheless, if any of the heirs should demand
that the thing be sold at public auction & that
strangers be allowed to bid, this must be done.
(1062)
Art. 1086 as Another Instance of Constructive
Partition
 Happens When: Thing is essentially
indivisible or physical partition would so
diminish its value
 Result: The thing may be sold & the
proceeds divided among the heirs.
To Whom Thing May be Sold
1. To a third person, or
2. If none of the co-heirs object, to any one
of them interested
 If more than 1 heir is interested,
they may buy it jointly & have the
proceeds distributed among the
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others to the extent of their
respective shares
o Co-ownership will continue as
to the buyers
Article 1087. In the partition the co-heirs shall
reimburse one another –
 For the income & fruits which each one of
them may have received from any
property of the estate,
 For any useful & necessary expenses
made upon such property, &
 For any damage thereto through malice or
neglect. (1063)
Mutual Accounting
Upon partition, the co-heirs must render a
mutual accounting of benefits received & useful
& necessary expenses incurred.
 Any heir who, between the decedent’s
death & partition, receives fruits from the
estate has to reimburse his co-heirs their
respective shares, in proportion to the
hereditary shares of each
 Any heir who incurs necessary & useful
expenses within that period may also seek
reimbursement from his co-heirs
Article 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.
(1067a) [ASKED BY MEL]
Right of Heir to Convey His Share Before
Partition
Since successional rights vest upon the
decedent’s death, any heir may, after that time
dispose of his aliquot share, gratuitously or
onerously
Right of Redemption in Case of Sale [ASKED BY
MEL]
If a co-heir sells his share prior to partition, any
co-heir may redeem the portion sold, but –
1. Sale must be to a stranger (i.e., not a co-
heir)
2. The right is exercised before partition, not
after
3. The demand to redeem must be made
within 1 month from written notice of the
sale
 The requirement of a written notice
is strictly construed by the courts
*NOTE: Co-heirs or co-owners are not granted
redemption rights when the alienation is
gratuitous.
CASE: GARCIA V. CALALIMAN
Facts: Gelacio died intestate. Group 1, 2 & 3
inherited a parcel of land from Gelacio. Group 1
& 2 executed deeds of sale wherein they
conveyed the property to the Spouses
Calaliman. However, they never sent notice of
this sale to Group 3. Group 3 filed a complaint to
have ¾ of the property redeemed by them, 1
year after the contested property was sold to
the Spouses Calaliman. It was shown that the
Group 3 heirs never received notice of the sale
to the spouses; however, months before the suit
was filed –
 Francisco, from Group 3 wrote the heirs in
the other groups, proposing to buy their
interests in the unpartitioned property
 Group 3 came to know about the sale to
the Spouses Calaliman when one of the
heirs from Group 2 asked Group 3 heirs to
sign a document as regards the property
 Francisco had also gone to the Registry of
Deeds & had seen the deed of sale
Despite technical knowledge of the sale, & the
passage of 1 year, should Group 3 be allowed to
redeem the property?
Held: YES. The failure of Groups 1 & 2 to notify
the Group 3 heirs in writing 1 month after the
sale meant that Group 3’s right to redeem never
prescribed.
1. SC did not consider the registration of the
deed of sale with the Register of Deeds
sufficient notice, most especially because the
property involved was unregistered land, as in
the instant case. The registration of the deed of
sale as sufficient notice applies only to
registered lands and has no application
whatsoever to a case where the property
involved is, admittedly, unregistered land.
2. The written notice requirement is
indispensable, actual knowledge of the sale
acquired in some other manners by the
redemptioner, notwithstanding. The co-heir is
still entitled to written notice, to remove all
uncertainty as to the sale, its terms and its
validity, and to quiet any doubt that the
alienation is not definitive. The law not having
provided for any alternative, the method of
notifications remains exclusive, though the Code
does not prescribe any particular form of written
notice or any distinctive method for written
notification of redemption.
Conflicting Jurisprudence on Written Notice
 In 3 cases, written notice was not
required; actual knowledge or notice to
the co-heirs was already considered
proper notice, but only when there are
“peculiar circumstances” (Alonzo v. IAC)
 But in a 2003 case, it was reiterated again
that written notice is mandatory (Primary
Structures v. Valencia)
Art. 1088 & Art. 1620 Distinguished
 Art. 1620 applies where the co-ownership
covers specific property
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o Art 1620. A co-owner of a thing
may exercise the right of
redemption in case the shares of all
the other co-owners or of any of
them, are sold to a third person. If
the price of the alienation is grossly
excessive, the redemptioner shall
pay only a reasonable one.
Should 2 or more co-owners desire
to exercise the right of redemption,
they may only do so in proportion
to the share they may respectively
have in the thing owned in
common.
 Art. 1088 applies where the co-ownership
covers the mass of the hereditary estate
 HOWEVER, the effect of both is the same
Where More than One Co-Owner Wants to
Redeem
ALL the co-owners wishing to redeem may do
so, but in proportion to each one’s hereditary
interest over the mass
CASE: CUA V. VARGAS
Facts: Paulina (decedent) left behind a parcel of
residential land. A notarized Extrajudicial
Settlement Among Heirs was executed by and
among her heirs, partitioning the subject lot so
that each got a share of 11 sqm. However, only
5 out of Paulina’s 9 heirs signed the same. By
virtue of said the Settlement, Joseph was able to
acquire the shares of the 5 signatory heirs
totaling 55 sqm. Gloria, one of the excluded co-
heirs, only came to know of the Extrajudicial
Settlement when the original house built on the
lot was demolished. She tried to redeem the
property with a letter from her counsel to
Joseph, but the latter refused. This prompted
Gloria to file for the Annulment of the
Extrajudicial Settlement which was dismissed by
the MTC, which held that although there was a
failure to strictly comply with the requirements
under Art. 1088 for a written notice of sale to be
served upon respondents by the vendors, this
deficiency was cured by Gloria’s actual
knowledge of the sale, which was more than 30
days before the filing of the complaint. Thus, the
action came too late. Was the MTC correct?
Held: NO. The right to redeem was never lost
because Gloria because she & her fellow
excluded co-heirs were never notified in writing
of the actual sale by the others. Written notice is
indispensable and mandatory; actual knowledge
of the sale acquired in some other manner by
the redemptioner notwithstanding. The
obligation to serve written notice devolves on
the vendor co-heirs because it is they who are in
the best position to know the other co-owners
who must be notified of the sale. Considering
that Gloria’s co-heirs failed to comply with this
requirement, there is no legal impediment to
allowing her to redeem the shares sold to
Joseph.

Class Discussion
Q: What is meant by the right of redemption?
A: The heir can buy back the property from the
person who bought it.
Q: What if the heir sold his share after partition?
A: This Art. would not apply because the Art.
refers to the sale of the aliquot portion prior to
partition.
Q: How much do the heirs have to pay the one
who bought?
A: The price that the purchaser gave to the co-
heir who sold the property. The purchaser
cannot ask for a price increase. It is a simple
reimbursement.
Article 1089. The titles of acquisition or
ownership of each property shall be delivered to
the co-heir to whom said property has been
adjudicated. (1065a)
Article 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 one
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, & 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. (1066a) [ASKED BY
MEL]
Right Over the Registered Title
This Art. provides for the right over the
registered title (the document)
 BUT: The co-heirs have the right to have
the title divided into individual titles, a
separate one for each of the owners, to
correspond to the separate portions held
by them respectively
SUBSECTION 2. Effects of Partition
Article 1091. A partition legally made confers
upon each heir the exclusive ownership of the
property adjudicated to him. (1068)
Notes on Art. 1091
The article merely points out the obvious effect
of partition – the termination of co-ownership
Class Discussion
Q: When does ownership begin?
A: From the moment of the death of the
decedent; the title only gives him stronger proof
that he is the owner.
Article 1092. After the partition has been
made, the co-heirs shall be reciprocally bound
to warrant the title to, and the quality of, each
property adjudicated. (1069a) [ASKED BY MEL]
Obligation of Mutual Warranty
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As provided in Art. 501 (for co-owners,
applicable to co-heirs): Every co-owner shall,
after partition, be liable for defects of title &
quality of the portion assigned to each of the
other co-owners.
Applicability of General Rules on Warranties
Rules on Warranties under Arts. 1547-1580 will
apply insofar as they are not inconsistent with
the rules here.
Class Discussion
Q: What is meant by warranty of quality?
A: An heir was promised 100 sqm. of fertile
agricultural lands, but he was given 100 sqm. of
dry agricultural land. The heir can contest this
using the provisions on warranty.
Article 1093. The reciprocal obligation of
warranty referred to in the preceding article
shall be proportionate to the respective
hereditary shares of the co-heirs, but if any one
of them should be insolvent, the other co-heirs
shall be liable for his part in the same
proportion, deducting the part corresponding to
the one who should be indemnified.
Those who pay for the insolvent heir shall have
a right of action against him for reimbursement,
should his financial condition improve. (1071)
Proportional Liability of Co-Heirs on Warranty
Burdens should be proportional to benefits.
Insolvency of One of the Obligors
Should one of the co-heirs bound to make good
the warranty be insolvent, his portion shall be
borne proportionally by all, including the one
entitled to the warranty.
Illustrative Example
Q1: Co-heirs A, B, C, D & E own equal shares of
P60K each. B was evicted from the property he
got during partition; he thus claims warranty for
the total amount of his share. How will the co-
heirs contribute?
A1: A, C, D, & E have to contribute P12K each to
make good the warranty.
 Since there was eviction to the amount of
P60K, it follows that the total value to be
partitioned is only P240K; hence, P48K
each.
Q2: What if A is insolvent?
A2: A’s share of P12K will be borne by the
others, including B. Hence, C, D, & E have to
contribute P3K more, making their individual
liability P15K. B will receive a total of P45K
having borne his own share of P3K from A’s
insolvency.
Exception to Right to Reimbursement from
Insolvent Obligor
Judicially declared insolvency; this would
extinguish all obligations of the insolvent.
Article 1094. An action to enforce the warranty
among heirs must be brought within 10 years
from the date the right of action accrues. (n)
Article 1095. If a credit should be assigned as
collectible, the co-heirs shall not be liable for
the subsequent insolvency of the debtor of the
estate, but only for his insolvency at the time
the partition is made.
The warranty of the solvency of the debtor can
only be enforced during the 5 years following
the partition.
Co-heirs do not warrant bad debts, if so known
to, & accepted by, the distributee.
 BUT if such debts are not assigned to a
co-heir, & should be collected, in whole or
in part, the amount collected shall be
distributed proportionately among the
heirs. (1072a) [ASKED BY MEL]
Credit Assigned to Co-Heir in Partition
 The warranty covers ONLY the insolvency
of the decedent’s debtor at the time of
partition
 Subsequent insolvency is NOT covered, as
the co-heir would have taken the risk
 Warranty has a special prescriptive period
of 5 years
Bad Debt Assigned to a Co-Heir
You be foolish, bitch. No refund for you.
Class Discussion
Q1: What if the heir’s share is the payment of a
debtor, but years later it is found that the
debtor has become insolvent. Can said heir ask
to be reimbursed by the other co-heirs?
A1: Yes, based on Art. 1095.
Q2: What if the creditor is insolvent at the time
of partition?
A2: The heir can no longer ask for
reimbursement from his co-heirs, because the
heir knew he was insolvent & yet he accepted.
Article 1096. The obligation of warranty
among co-heirs shall cease in the ff. cases:
(1) When the testator himself has made the
partition, unless it appears, or it may be
reasonably presumed, that his intention
was otherwise, but the legitime shall
always remain unimpaired;
(2) When it has been so expressly stipulated
in the agreement of partition, unless
there has been bad faith;
(3) When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of
the property. (1070a) [ASKED BY MEL]
Instances When There is No Mutual Warranty
1. Partition by the testator himself
 EXC: Where the legitime has been
impaired
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2. Agreement among the co-heirs to
suppress the warranty
3. Supervening events causing the loss or
the diminution of value
4. Fault of the co-heir
5. Waiver
SUBSECTION 3. Rescission & Nullity of
Partition
Article 1097. A partition may be rescinded or
annulled for the same causes as contracts.
(1073a)
Causes for Annulment
Art. 1390. The ff. contracts are voidable or
annullable, even though there may have been
no damage to the contracting parties:
(1) Those where one of the parties is
incapable of giving consent to a contract;
(2) Those where the consent is vitiated by
mistake, violence, intimidation, undue
influence or fraud.
These contracts are binding, unless they
are annulled by a proper action in court.
They are susceptible of ratification.
Causes for Rescission
Art. 1381. The ff. contracts are rescissible:
(1) Those which are entered into by guardians
whenever the wards whom they represent
suffer lesion by more than ¼ of the value
of the things which are the object thereof:
(2) Those agreed upon in representation of
absentees, if the latter suffer the lesion
stated in the preceding number;
(3) Those undertaken in fraud of creditors
when the latter cannot in any other
manner collect the claims due them;
(4) Those which refer to things under
litigation if they have been entered into by
the defendants without the knowledge
and approval of the litigants or of
competent judicial authority;
(5) All other contracts specially declared by
law to be subject to rescission.
Important Note for Art. 1097
Pars. 1 & 2 are modified by the following Art.
CASE: BAUTISTA V. BAUTISTA
Facts: Teodoro died, leaving her husband, Isidro,
& 5 kids, with a piece of property from her.
Isidro & 4 of the kids executed a Deed of
Extrajudicial Partition, with dad waiving his
share, leaving out 1 brother. This 1 brother
sought to have the extrajudicial partition
annulled on the ground that he was excluded.
RTC ruled in his favor, but CA reversed on the
ground that the brother’s action for
reconveyance had already prescribed. Was the
CA’s contention correct?
Held: NO. No extra-judicial settlement shall be
binding upon any person who has not
participated therein or had no notice thereof. As
the partition was a total nullity and did not
affect the excluded heirs, it was not correct for
the trial court to hold that their right to
challenge the partition had prescribed after 2
years.
The deed of extra-judicial partition in the case at
bar being invalid, the action to have it annulled
does not prescribe. Furthermore, the deed of
extra-judicial partition is invalid, it transmitted
no rights to Teofilo’s co-heirs.
CASE: REYES V. RTC OF MAKATI
Facts: Pedro (father), Anastacia (mother), Oscar
(son), & Pedro (son) owned shares of stock of
Zenith Insurance. Pedro died & his estate was
judicially partitioned among his heirs. Anastacia
subsequently died. Anastacia’s estate (included
shareholdings in Zenith) had not been
partitioned. Rodrigo learned that the
shareholdings of Anastacia were fraudulently
transferred to Oscar. Rodrigo and Zenith filed a
derivative suit to obtain an accounting of the
assets of Zenith and to determine shares of
stocks appropriated by Oscar for himself. Oscar
denied the allegations and challenged the
jurisdiction of RTC (initially the SEC, prior to
transfer of jurisdiction made by RA 8799) as a
special commercial court since the action
pertains to the settlement of the estate of
Anastacia. Did the RTC, as a special commercial
court, have jurisdiction to rule on the matter?
Held: NO. Rodrigo’s action is based on
successional rights and not of those of a
stockholder. Therefore, the action is not an
intra-corporate controversy.
The RTC, as special commercial court has no
jurisdiction to hear Rodrigo’s complaint since
what is involved is the determination and
distribution of successional rights to the
shareholdings of Anastacia. Rodrigo’s proper
remedy is to institute a special proceeding for
the settlement of the estate of the deceased
Anastacia.
Article 1098. A partition, judicial or extra-
judicial, may also be rescinded on account of
lesion, when any one of the co-heirs received
things whose value is less, by at least ¼, than
the share to which he is entitled, considering
the value of the things at the time they were
adjudicated. (1074a)
Lesion
Lesion is economic injury, where the party
receives less than he is entitled to receive.
Amount of Lesion
 The minimum extent of lesion for
rescission to be available is ¼ (25%).
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 Note the slight variation from pars. 1 & 2
of Art. 1381,39 which specifies more than
¼.
o Evidently, in cases of partition of
the inheritance, Art. 1098 applies.
Class Discussion
Q: Who can the aggrieved heir sue?
A: Those who received more only, not those who
received less or their proper share.
M: Rescission can be done for any reasons to
annul a contract, and also, lesion.
Article 1099. The partition made by the
testator cannot be impugned on the ground of
lesion, except
 When the legitime of the compulsory heirs
is thereby prejudiced, OR
 When it appears or may reasonably be
presumed, that the intention of the
testator was otherwise. (1075)
Art. 1099 is Exception to Art. 1098
A partition made by the testator himself is not
subject to rescission even in case of lesion in
the amount specified in Art. 1098, except in the
ff. cases:
1. Impairment of the legitime
 EVEN IF the lesion is less than ¼
2. Mistake by the testator or vitiation of his
intent
Article 1100. The action for rescission on
account of lesion shall prescribe after 4 years
from the time the partition was made. (1076)
Article 1101. The heir who is sued shall have
the option of –
 Indemnifying the plaintiff for the loss, or
 Consenting to a new partition.
Indemnity may be made –
 By payment in cash or
 By the delivery of a thing of the same kind
& quality as that awarded to the plaintiff.
If a new partition is made, it shall affect neither
 Those who have not been prejudiced, nor
 Those have not received more than their
just share. (1077a)
Obligor’s Options
It is the co-heir who is sued for rescission who
has the option. He has two choices:
1. To have a re-partition, OR
2. To indemnify the co-heir the amount of the
lesion suffered.
Article 1102. An heir who has alienated the
39 Article 1381. The following contracts are rescissible:
(1) Those which are entered into by guardians whenever the
wards whom they represent suffer lesion by more than ¼ of
the value of the things which are the object thereof;
(2) Those agreed upon in representation of absentees, if the
latter suffer the lesion stated in the preceding number; […]
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.
(1078a)

Notes on Art. 1102

Correlated with Art. 1101, this Art. is
unnecessary, since anyway it is the party sued
who is given the option.

Article 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. (1079a)

Incompleteness of the Partition

 Incompleteness of the partition is not a
ground for rescission.
 The remedy is a supplemental partition.

Class Discussion
One example of this situation: There was a car
parked in the house in Baguio that the heirs
forgot to include in the partitioning. Art. 1103
would be used in such a case.

Article 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 to the person
omitted the share which belongs to him. (1080)
[Asked by MEL]

Art. 854 v. Art. 1004

 This is not preterition under Art. 854
 In Art. 1004, there is an omission of a
compulsory heir in the partition
o The assumption is that something is
left for him in the form of an
undisposed portion of the estate.
The omitted heir simply gets his
rightful share
 In Art. 854, preterition pertains to a
compulsory heir is direct line who is
excluded from the inheritance in terms of
designation, & not just partition

Article 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.
(1081a)

An Outsider Mistakenly Included

 In Art. 1105, an outsider is mistakenly
included in the partition.
 Remedy: Recover the property from him &
have it redistributed among the proper
recipients.

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