INTRODUCTION BASIS OF THE LAW ON SUCCESSION:
Concept.-- Succession is the last mode of acquiring
ownership. It is an independent mode of acquiring
ownership.
Requisites of Succession:
(1) Death of the predecessor;
(2) Existence and capacity of the successor;
(3) Provision of the law or provision of a will
granting the right of succession;
(4) Acceptance by the successor.
Q: Is tradition (delivery) required for ownership to
transfer?
A: No. Ownership is transferred by succession, not by
any other mode.
Etymology.-- Succession is derived from 2 Latin
words: sub, meaning under (e.g., an underling, a
subordinate, if a plane travels at a subsonic speed or
fly below opposite-- subsonic) and cedere, meaning to
give, to pass.
Succession, therefore, is a passing under. It
gives the idea of the nature of succession as
originated from Roman Law. Why do the Romans call
it a passing under? Because. of the fiction in Roman
Law that a personality occupies a space, that is, a
legal personality is permanent. A permanent fixture but
the occupant will go away. And it is the successor who
will occupy the space you left vacant. There is always
what you call personalitas. "Sound through" like a play,
where you wear a mask, and the one behind the
curtain is sounding through. that is, somebody is really
talking behind you. This, by analogy is, succession.
Persona means "you," the character.
Personalita or personality w/c is always there, and
there is or there will always be an occupant, who
comes and goes; it may change the character, the
person passes under. What is behind all this?
Personality never dies. We are but dust and shadows
based on the reality of death.
Why do we have to devise this fiction? Why
the law on succession? The Law on succession has
various underpinnings in Roman Law, that is, first, the
vague idea of after life, like the ideas of Horace -- state
of good in the Elipian fields; second, that the law
develops based on conditions of society. One of the
most basic desire of man is the desire for immortality.
How, When, To Whom, In What proportion are they
transmitted -- Succession.
1. Succession provides the vehicle for satisfying
your yearning and longing for immortality. It
satisfies or consoles yourself that something in
your lives forever and this is your personality.
Others usually leave something like paintings,
book of poems, statue so that they will be
remembered forever, e.g., Horace by
Shakespeare.
2. Concept of pater familias. Diligence of pater
familias. Pater familias means head of the family.
The basic unit of Roman society. It is he who
managed and exercised authority over his
children, absolute control over his wife. In
Roman law, a man's wife is his child. It is he who
is the guardian of the family gods. It is a position
that must be occupied every time. It is
unthinkable to be otherwise. Once he dies, it is
absolutely necessary not only in religion that he
is to be replaced immediately. This is
indispensable.
These underpinnings are gone now. Today,
succession is nothing but a mode of acquiring
ownership. Why? Because you do not have the fiction
to have succession, because. of the spread of
Christianity w/c took the place of those yearnings that
it is believing in God and life after death. No more
yearnings for immortality, unless you do not believe in
the teachings of Christianity.
Also, the concept of pater familias is no longer
applicable because. of parental authority w/c restricted
the authority of the head of the family. We no longer
have slaves, absolute control over children, etc.
But old beliefs do not die easily. Some
provisions of the law on succession are influenced by
these underpinnings. Like, "heirs are the continuation
of the personality of the decedent." Another is: when a
condition is imposed upon the substitute, does the
substitute have to fulfill the condition? All of these are
residual elements of Roman Law.
Definition of Succession.-- Succession in a juridical
sense is the substitution of one person for another in a
determinable relationship or a subrogation of one
person by another in a juridical situation. (Manresa.)
Succession is the substitution of a person to
the determinable legal relationship of another.
(Castan.)
Castan's definition is better. ( .)
PHILIPPINE LAW ON SUCCESSION
(Based on the lecture given by JBL Reyes.)
Every person during his lifetime is at the
center of a number of juridical relations flowing from
personality. Some of these legal relations are
permanent, some are transitory. Some of these
relations are: paternity and filiation, marriage and
maternity, membership of the bar, student of UP, etc.,
w/c other persons do not have. There are transitory
relations, and examples of these are one when bought
a bottle of Coke; lease of an apartment unit; a
mortgage; a contract of partnership; when one rides a
bus, etc.
When a person dies, personality is
extinguished. Some of these juridical relations will die
w/ you-- intuitu personae-- SSS, GSIS-- if they die w/
you, no problem. but some of them survive, e.g., land.
If it is only a ball pen left by the decedent, it is not a big
problem. But what if the decedent left a big tract of
land, or there is a contract of sale w/c transfers
ownership bet. the decedent and third parties. You
have to set a devise. You cannot leave them hanging
in the air. You have to devise a set of rules to
determine the how, when, to whom, to what extent
these rights will be transmitted. The law w/c governs
them is succession. And that is all on succession,
everything is footnotes.
DIFFERENT KINDS OF SUCCESSION
A. By the moment of transmission:
a. mortis causa-- takes place by virtue of death
b. inter vivos-- takes place independently of
death during the lifetime of the parties (now
called Donation inter vivos.)
B. Extent of rights involved:
a. Universal-- this is very catchy- it involves the
entire estate or fractional or aliquot or
undivided part of the estate, e.g., I give you
1/2 of my estate.
b. Particular/ partial.-- succession to specific
items
c. legacy-- specific personal prop., e.g., I give
you my car
d. devise-- specific real prop., e.g., I give to G
my fishpond in Laguna.
C. As to cause:
a. Compulsory.-- that effected by operation of
law to forced heirs even if not in a will;
succession to the reserved portion/ legitime
b. Testamentary.-- by will
c. Intestate or legal.-- succession in default of a
will; subordinate to testamentary succession
d. Mixed.-- combination of the above.
e. Contractual.-- E.g., donation propter nuptias
by one to another of future prop. w/c takes
effect after death.
Why contractual? Because of the transfer of
property is not by virtue of a will but by contract. So it
is governed by the law on contracts. Hence, it must be
governed by the Statute of Frauds. It must be in
writing to be enforceable.
D. As to parties to succession:
a. Decedent, transferor, causante, acutor, de
cuius
b. Successor, transferee, causa habiente
E. As to terms:
a. Testator.-- decedent left a will
b. Intestate.-- decedent did not leave a will
c. Heir.-- one who succeeds by universal title or
to a share of the estate
d. Devisee.-- one who succeeds by particular
title to real prop.
e. Legatee.-- one who succeeds to a specific
personal prop.
Elements of Succession (Manresa.):
1. Change of subject (cambio de suheto.)--
ownership is transferred from deceased to heir
(subjective change.)
2. Identity of Object (identidad de objecto)--
same prop. is involved, only the owner is
changed. The right is the same (objective
identity.)
Important Principles of Succession (which
permeates the entirety of Succession):
1. Mortis Causa.--Succession can not take place
while the owner is alive. The heir/ successor has
a mere expectancy right to the prop. of the
decedent, during the lifetime of the latter
2. Interest of the family may override the will of the
decedent because. of compulsory heirs. There is
a legitime reserved for the family. A will cannot
impair the legitime.
3. The estate passes or devolves to the family
unless the decedent expressly orders otherwise
 in a will. Family covers spouse, ascendants,
descendants, and collateral relatives.
4. The family cannot be entirely deprived of the
estate because. of the system of legitime.
5. Within the family, heirs of equal degree/
proximity inherit in equal shares. Presumption of
equality. This is only the general rule. There are
exceptions.
6. The State has a share in the inheritance through
taxes.
7. The heirs are not liable for the debts of the
estate beyond their share in the inheritance.
Estate is liable for the debts left by the decedent.
Debts are to be deducted before the heirs can
get their shares. Procedure: Collect all assets,
deduct debts, then partition the shares. Up to
what extent? Up to all its assets. If the estate is
zero balance, the heirs get nothing.
Under the modern civil law, if the decedent left
more debts than assets, it will not change or affect
your status anyway, but not w/ the decedent's
creditors-- they have to beware-- caveat creditor.
Basis of the Law on Succession.—
Some say it is the law on property w/c seems
to be the basic attitude of the Code. Others say
succession is a law on persons because. of the
compulsory heirs. How can you explain that? Is there
some link bet. the law on succession and property?
There is. Castan said that law on succession is both
law on persons and property. However, in a pure
testamentary succession, the law on persons do not
come to play. Say, a will giving UP a property. This is
more on the law of property. This is the ecclectic theory
of Castan.
Major Changes in the New Civil Code on
Succession:
1. Allowance of holographic wills (Art. 810.) It gives
greater freedom to the decedent to choose in
what form he can dispose by will his estate.
Holographic will is not a novelty but a revival.
This was allowed in the Spanish times but was
abrogated during the American regime. It was
only restored under the NCC.
2. Improvement in the successional position of the
surviving spouse. Under the OCC, the surviving
spouse had a right of usufruct only. Under the
NCC, the surviving spouse is given full
ownership and is a compulsory heir. The share is
variable that it is so bewildering.
3. Abolition of the right of mejora or betterment (the
right of the parent to give a child more than the
other.) This is basically a portion of the legitime,
1/3. Freedom is given to the testator as to who
among his children he will give the 1/3. This
system was never utilized because. it was never
understood by the people.
4. Abolition of the reservas and reversiones. The
NCC restored reserva troncal, reversion
adoptiva (under PD 603.)
5. Granting successional rights to/ for spurious
children-- illegitimate other than natural. This is
one of the revolutionary changes in the NCC.
Under the OCC only legitimate children have
successional rights. NCC liberalized it by
granting successional rights to spurious children.
6. Greater facility in the probate of wills. Why?
Because. of the allowance of ante mortem
probate, that is, during the lifetime of the
testator. Now, probate may be post-mortem or
ante mortem.
7. The application of the prohibition outlined in Art.
739 to succession. this is by virtue of Art. 1038.
Art. 739 provides that:
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty
of adultery or concubinage at the time of the
donation;
(2) Those made between persons found guilty of
the same criminal offense, in consideration
thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office.
In the case referred to in No. 1, the action for
declaration of nullity may be brought by the spouse
of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence
in the same action.
8. Increase of the free portion-- corollary to the
abolition of the mejora
9. Limitation of the fideicommisary substitution to
one degree (before, two degrees)
10. Intestate succession is narrowed from sixth
degree to fifth degree.
11. Abolition of the institution under pupilar and
ejemplar (substitution.)
12. Allowance of lifetime probate.
Areas in Succession Affected by the American
Code:
1. Rules in interpretation.-- Arts. 788-792
2. Rules on formal requirements of a will.-- Arts.
804-809
3. Rules governing witnesses to wills.-- Arts. 820-
824
4. Rules on republication and revival of wills.--
Arts. 835-836
5. Rules on revocation.-- Arts. 829-831
6. Rules on allowance and disallowance of
wills.-- Arts. 838-839
7. Rules on Testamentary capacity.
Chapter 1
GENERAL PROVISIONS
Art. 774. Succession is a mode of acquisition by
virtue of which the property, rights and obligations
to the extent of the value of the inheritance of a
person are transmitted through his death to
another or others either by his will or by operation
of law.
1. Succession is a mode of acquisition.--
Property, rights, and obligations are transmitted;
those w/c are not extinguished by death of the
decedent is inheritance. Succession is but a
process of transmission.
Succession is a mode of acquisition of
inheritance transmitted to the heirs upon the
death of the decedent through a will or by
operation of law.
2. Two elements of Succession.—
(1) identity of objects;
(2) change of subjects.
3. Rule.-- The estate of the decedent pays for the
obligations of the decedent. What is left is given
to the heirs.
4. Connect Art. 774 w/ Art. 776, supra.
For money debts: If not paid in settlement
proceedings, heirs could be liable to the extent
of what they received.
For obligations: E.g., lessee-lessor-- obligation
to keep the lessee in the peaceful possession is
transmitted to the heirs.
5. Property and Rights- Passed on to the
decedent's successors
6. Obligations:
a. Monetary.-- General rule: The estate
pays for them before the estate is
partitioned
Exception: Alvarez case. Predecessor
fraudulently disposed of the prop. during
litigation. SC held that heirs cannot escape
liability for their father's transactions w/c gave
way to this claim for damages. Even though
they did not inherit the prop., the monetary
equivalent thereof was devolved into the mass
of the estate w/c the heirs inherited. Hereditary
estates are always liable in their totality for the
payments of the debts of the estate. Whatever
payment made by the estate is ultimately a
payment by the heirs because. these
payments decrease their inheritance.
b. Non-monetary.-- Transmitted to the heirs.
Art. 775. In this Title, "decedent" is the general
term applied to the person whose property is
transmitted through succession, whether or not he
left a will. If he left a will, he is called the testator.
: Every testator is a decedent but not all decedents
are testators. Under the American system, a decedent
who did not leave a will is called "intestate." But this is
not true in the Philippines.
Art. 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death.
Transmissible property, rights and obligations
constitute inheritance.
Guidelines on whether rights/ obligations are
extinguished by death:
1. Property, rights and obligations which are purely
personal are extinguished by the death of the
decedent. They are not part of the inheritance,
e.g., membership in the bar or right of
consortium w/ your wife.
2. Those w/c are purely patrimonial. General rule:
They form part of the inheritance, e.g. credits
Exception: Money debts-- obligation to pay is not
transmissible, although purely patrimonial
because the estate pays for it.
3. Those obligations transmitted to the heirs w/c
are not monetary,
e.g., obligation of a lessor-- patrimonial. B
leased to C a parcel of land for a term of 3
years. After 2 years, B died. The heirs of B are
 bound by the lease contract. Obligation as
lessee and bailee are transmissible.
Art. 777. The rights to the succession
(inheritance) are transmitted (to becauseome
vested) from the moment of the death of the
decedent.
1. This article literally means that the "decedent has
the right to the succession which is transmitted
upon his death." This is illogical because. the
decedent does not have rights to the succession.
To improve the provision, change the words
"succession" to "inheritance" (the right to succeed
is an inchoate right) and the verb "transmitted" to
"becauseome vested."
2. Four Elements of Succession:
a. Death
b. Will or Operation of law
c. Existence and capacity of the successor
d. Acceptance.
3. This provision is the heart and soul of succession.
The most essential provision of the law on
succession.
4. Rights to succession vest at the moment of death,
not transmitted. The right should be made
effective from the moment of death. This is so
because. the rights to succession before death
are mere inchoate. But from the moment of death,
those inchoate rights becauseome absolute.
Rights to succession are vested from the
moment of death, not upon the filing of petition for
testate/ intestate proceedings, not upon the
declaration of heirship or upon settlement of the
estate.
The rights to succession are automatic.
Tradition or delivery is not needed. Fiction of the
law is that from the moment of the death of the
decedent, the right passes to the heirs.
During the lifetime of the predecessor,
rights to succession are a mere expectancy.
Hence, no contract can be legally entered into
regarding the expected inheritance. When a heir
receives his inheritance, he is deemed to have
received it at the point of death. this is so by legal
fiction to avoid confusion.
5. CASES:
USON v DEL ROSARIO.-- Upon the death of the
husband before the NCC, the rights of the wife
to the inheritance were vested. So the rights of
the illegitimate children under the NCC to
inherit can not prejudice the vested rights of
the wife. We have to apply the OCC because.
at the time of his death, it is the OCC w/c
governed the law on succession. For the
determination of successional rights, the law at
the point of death should be the one applied.
BORJA v BORJA.-- The right to inherit is vested at the
moment of death. Even if she did not know
how much she was going to inherit, she could
still dispose of her share in the inheritance.
Said right to the share was hers from the
moment of death and she could do whatever
she wanted w/ her share, even sell it.
BONILLA v BARCENA.-- You do not need a
declaration of heirship whether testate or
intestate, voluntary, etc. The rights of the heirs
to the prop. vest in them even before judicial
declaration of their being heirs in the testate
proceedings. An action to quiet title is not
extinguished by the death of the decedent, it
being a patrimonial right. Hence, the heirs
have the right to be substituted to the action
even before their having declared as heirs.
JIMENEZ v FERNANDEZ.-- Carlos died in 1936,
before the effectivity of the NCC. As such, his
illegitimate child cannot inherit from him. As
such, title to the land belongs to the cousin
who inherited the land w/ Carlos.
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or Intestate; or
(3) Mixed.
1. Testamentary (Art. 779.)-- designation of an heir
in a will
2. Legal or Intestate .-- w/o a will or the will is
invalid
3. Mixed (Art. 780.)-- partly by will and partly by
operation of law
4. Compulsory.-- Succession to the legitime by a
forced heir.
Art. 779. Testamentary succession is that which
results from the designation of an heir, made in a
will executed in the form prescribed by law.
Heir includes devisees and legatees.
Art. 780. Mixed succession is that effected partly
by will and partly by operation of law.

Art. 781. The inheritance of a person includes not
only the property and the transmissible rights and
obligations existing at the time of his death, but
also those which have accrued thereto since the
opening of the succession.
It is better to scrap Art. 781. It has no significance.
Even w/o it, those w/c accrue after death will still
belong to the heirs.
E.g., A has a son, X. A dies in 1988. Inheritance is a
mango plantation. In 1990, there is a crop.
Is it part of the inheritance?
1. According to Art. 781, yes. This is inconsistent
w/ Art 777 because. succession occurs at the
moment of death. Art. 781 implies a second
succession.
2. Legal concept.-- No. X owns it through
accession and not succession. Fruits are no
longer part of the inheritance. It belongs to the
heir because. of ownership of the land he
received at the moment of death. (Art. 777.)
Those w/c have accrued thereto after death
do not comprise the inheritance but they
accrue by virtue of ownership (accretion.)
Art. 782. An heir is a person called to the
succession either by the provision of a will or by
operation of law.
Devisees and legatees are persons to
whom gifts of real and personal property are
respectively given by virtue of a will.
The definitions given in this article are not good. The
definitions contained in the Spanish Civil Code were
better. An heir succeeds by universal title. Devisee or
legatee succeeds by particular title.
According to Castan, an heir is one who
succeeds to the whole (universal) or aliquot part of
the estate. Devisee or legatee is one who succeeds
to definite, specific, and individualized properties.
E.g., I bequeathed 1/2 of my fishpond in Pampanga to
A. Is the successor an heir, legatee or devisee? A
devisee, the prop. being a specific real prop.
Q: Is it important to distinguish bet. heir devisee and
legatee?
A: Before, yes. The heir inherited even debts of the
decedent, even if it exceed the value of the property.
Devisees or legatees were liable for debts of the
decedent only up to the extent of the value of the
prop.
Now, No. Except in one instance, in case of
preterition in Art. 854. If read carefully, institution of
heir is annulled while devise and legacy are not, so
long as there is no impairment of the legitime.
Art. 782 is not a working definition.-- Someone
who is a devisee (succeeded by a particular title) can
fit into the definition of an heir (succeeds to a
fractional/ aliquot/ undivided part of the estate.) and
vice versa.
Chapter 2
TESTAMENTARY SUCCESSION
Section 1
WILLS
Subsection 1
WILLS IN GENERAL
Art. 783. A will is an act whereby a person is
permitted, with the formalities prescribed by law,
to control to a certain degree the disposition of
his estate, to take effect after his death.
Definition of will:
1. "Person."-- refers only to natural persons.
2. "Permitted to control to a certain degree."-- why
certain degree? Because compulsory heirs
cannot be deprived of their legitimes. If there are
no compulsory heirs, the power of the decedent
to dispose of his estate is absolute. If there are
compulsory heirs, he only has a limited degree
to dispose. That is why the will can only cover
the disposable portion of the estate (free
portion.)
3. Comment: .
a. An "act."-- is too general; better "document"
because. a will must be in writing
b. "After"-- better "upon."
Characteristics of Wills:
1. Purely personal act. (Arts. 784-787.)-- non-
delegable; personal participation of the testator
is required.
2. Free act.-- it means w/o fraud, violence, deceit,
duress, or intimidation. It is voluntary. No vitiated
consent.
3. Dispositive of property.-- If it does not, it will
be useless. But as far as the law is concerned,
it can be probated but a useless expense. It is
only valid as to form and nothing else.
 Exceptions:
a. when a will recognizes an illegitimate
child
b. when a will disinherits a compulsory heir
c. when it appoints an executor
4. Essentially revocable.-- ambulatory, it is not
fixed, can be taken back (while the testator is
alive.) There is no such thing as an irrevocable
will. It only becauseomes irrevocable upon death
of the testator.
5. Formally executed.-- If the form is defective, it
is void. It can not be cured.
6. Testamentary capacity of the testator.
7. Unilateral act.-- does not involve an exchange
of values or depend on simultaneous offer and
acceptance.
8. Mortis causa.-- takes effect upon the person's
death (Art. 777.)
9. Statutory grant.-- granted only by civil law. The
law can also take it away. It is not a
constitutional right but merely statutory. In
Russia, there are no wills, all intestacy
10. Animus Testandi.-- There must be an intent to
dispose mortis causa the property of the
testator. There must be a real intent to make a
will or a disposition to take effect upon death.
Said intent must appear from the words of the
will.
MONTINOLA v. CA, 3 CA Reports 377.-- The
Republic contended that the phrase "I hereby
leave you (motherland), parents, loved ones...
" is a testamentary disposition in favor of the
Republic as an heir. CA ruled that it was not.
The phrase is a mere piece of poetry, there
being no animus testandi. The lack of such
intent might be seen from the face of the
document itself.
11. Individual.-- One person alone. Joint wills are
prohibited under Art. 818.
VITUG v. CA.-- A couple executed a survivorship
agreement wherein their joint bank account
would becauseome the sole property of the
surviving spouse should one of them die. The
SC held that such agreement is valid. The
conveyance is not a will because. in a will, a
person disposes of his prop. In this case, the
bank account is part of the conjugal funds.
Neither is the agreement a donation inter vivos
because. it takes effect after death.
Art. 784. The making of a will is a strictly personal
act; it cannot be left in whole or in part to the
discretion of a third person, or accomplished
through the instrumentality of an agent of an
attorney.
The making of a will is a purely personal act. It is an
exercise of the disposing power w/c can not be
delegated. But the physical act of making a notarial will
can be delegated to the secretary but not the
execution or making of holographic wills.
E.g ., A dictated The Secretary wrote it down and
typed. Is the will valid? Yes. What cannot be left in
whole or in part to a third person is the exercise of the
will making power, the exercise of the disposing or
testamentary power. The mechanical act can be
delegated.
Art. 785. The duration or efficacy of the
designation of heirs, devisees or legatees, or the
determination of the portions which they are to
take, when referred to by name, cannot be left to
the discretion of a third person
This provision clarifies Art. 784 on will-making power.
Things Which Cannot be Delegated to a Third
Person by the Testator:
1. Designation of heir, legatee or devisee, e.g., I
hereby appoint X as my executor and it is in his
discretion to distribute my estate to whomever
he wants to give it. This can not be done.
2. Duration or efficacy of such disposition like,
"Bahala ka na, Ruben."
3. Determination of the portion to w/c they are to
succeed, when referred to by name.
Art. 786. The testator may entrust to a third
person the distribution of specific property or
sums of money that he may leave in general to
specified classes or causes, and also the
designation of the persons, institutions or
establishments to which such property or sums
of money are to be given or applied.
: Art. 786 is an exception to Arts 784 and 785. It
covers things that are part of the essence of will
making but allowed to be delegated.
Examples of Prohibited Delegation:
1. Can not delegate the designation of the amount
of prop., e.g., I hereby set aside the sum _____
w/c my executor may determine for the cause of
mental health. The amount is not specified.
2. Cannot delegate the determination of causes or
classes to w/c a certain amount is to be given,
e.g., I hereby set aside P1M for such worthy
 causes as you may determine. This is not valid
because. the cause is not specific.
By way of exception, there are 2 things w/c can be
delegated.
The testator must specify—
(a) the amount of property;
(b) the cause of classes of property-- before the
delegation can take effect.
1. The designation of person or institution falling
under the class specified by the testator.
Choosing the members of the class but is
restricted by the class designation, e.g., I hereby
set aside the sum of P1M for the development of
AIDS research. M will choose w/c institution.
This is allowed because. you have guided
already M's decision. However, M cannot
designate Manila Hotel.
2. The manner of distribution or power of
apportioning the amount of money previously set
aside or prop. specified by the testator, e.g., I
designate the following hospitals to get the share
in my estate and appoint M to apportion the
amount of P10M. I set aside P250,000 for the
following institutions: UP, PGH, SR, in an
amount as my executor may determine.
The above mentioned are exceptions to the
rule that the making of a will are non-delegable.
Art. 787. The testator may not make a
testamentary disposition in such manner that
another person has to determine whether or not it
is to be operative.
: This provision clarifies what is meant that "a will is
personal." This is in effect delegating the discretion to
the disposition of the will.
Articles 788- 792.
Interpretation of Wills/ Rules of
Construction.
Art. 788. If a testamentary disposition admits of
different interpretations, in case of doubt, that
interpretation by which the disposition is to be
operative shall be preferred.
The rule on interpretation in order that the will may be
valid and not perish.
Rationale: The State prefers testate to intestate.
Why? Because. testamentary disposition is the
express will of the decedent. Intestamentary is the
presumed will of the decedent. This is mere
speculation on what the decedent wanted.
Ut res mages valet quam pereat.-- that the
thing be valid than perish.
E.g., The word "chick" can have 2
interpretations: (1) a girl in w/c case inoperative
because. not w/in the commerce of man and (2)
sisiw.-- operative. Interpret according to the second.
Art. 789. 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; 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.
Kinds of Ambiguity:
a. Patent, apparent.-- that w/c appears in the face
of the will, e.g., "I give 1/2 of my estate to one of
my brothers." Who among the brothers? This is
patently ambiguous.
b. Latent, hidden.-- perfectly unclear on its face.
The ambiguity does not appear until you apply
the provisions of the will, e.g., "I give to M the
prop. intersecting Buendia and P. de Roxas. The
ambiguity is determined only when the will is
probated. That is, when it appears that I am the
owner of all the 4 corners of the lot. Now, w/c of
those lots?
General Rule: Clarify ambiguity and be guided by
these: Testacy should be preferred or upheld as far as
practicable. Any doubt shall be resolved in favor of
testacy.
Q: How will you resolve the ambiguity? What
evidence do you admit?
A: You can admit any kind of evidence as long
as relevant and admissible according to the
Rules of Court. This includes written
declarations.
Except: Oral declarations of the testator. Why?
Because. they cannot be questioned by the
deceased.
Also, because. they are easy to fabricate.
If inspite of evidence you still cannot cure
ambiguity, then annul the will.
If the ambiguity is patent, disregard the will. If
latent, look into the evidences allowed by law.
 Art. 790. The words of a will are to be
taken in their ordinary and grammatical sense,
unless a clear intention to use them in another
sense can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken in
their technical sense, unless the context clearly
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn
solely by the testator, and that he was
unacquainted with such technical sense.
Art. 792. The invalidity of one of several
dispositions contained in a will does not result in
the invalidity of the other dispositions, unless it is
to be presumed that the testator would not have
made such other dispositions if the first invalid
disposition had not been made.
: General rule: Severability. A flaw does not affect the
other provisions. Exception: If it was meant that they
were to be operative together as seen in the will.
Art. 793. Property acquired after the making of a
will shall only pass thereby, as if the testator had
possessed it at the time of making the will, should
it expressly appear by the will that such was his
intention.
This is a new provision. It is better if this was not
placed here. Why? Because. prop. acquired after the
making of the will will not pass unless there is a clear
intention or express provisions that the prop. will be
passed by the testator. E.g., I give as legacy to M my
cars. I only had 2 cars when I executed the will. After
w/c I acquired 15 more cars. When I die, how many
cars will she get? Following Art. 793, she will get only
2 cars. The additional cars are not included.
General rule: After acquired property shall not pass.
Exception: If the will provides otherwise. If he said
"all my cars when I die, " then M gets all 17 cars.
COMMENT: This is crazy. Art. 793 is inconsistent w/
Art. 777. At the time of the death, the succession will
open. As such, all cars should be given.
But the law should be applied as it is. No
matter how inconsistent it is as pointed out by
Tolentino. For as lawyers, you should advise your
clients to be clear or clarify everything to avoid this
ambiguity. Tell your clients to specify "as of the time of
my death."
The solution to this inconsistency bet. the 2
articles is to repeal Art. 793.
Art. 794. Every devise or legacy shall convey all
the interest which the testator could devise or
bequeath in the property disposed of, unless it
clearly appears from the will that he intended to
convey a less interest.
General rule: Legacy or devise will pass exactly the
interest of the testator over the property.
Exception: Unless it appears from the will that he is
giving less.
E.g., say you own a parcel of land. Only the
ownership of the land can be given. If the testator is a
usufructuary, he can only bequeath his rights as
usufructuary, nothing more, nothing less.
Can you give bigger? Yes. Art. 929 says so.
Only good if the other co-owner is willing to sell.
Q: B, G and J are co-owners. B gave to A the land
they owned in common, that is the entire land and full
ownership over it giving more than what he owns. Is
this allowed?
A: Yes. The remedy is to buy the shares of J and G
but he can not compel them to buy his share, there
being no redemption of the whole land or give to A the
value of B's share, if G and J are not willing to sell
their shares.
The testator may give a lesser interest, e.g., I give the
usufruct of my land to X. What results?
Usufruct to X, ownership of the land goes by
intestacy.
Art. 795. The validity of a will as to its form
depends upon the observance of the law in force
at the time it is made.
Formal Validity/Extrinsic Validity
a. Time criterion.-- law at the time of execution;
subsequent laws cannot apply retroactively.
b. Place criterion.-- Under Art 815-817, five (5)
choices are available to the testator:
1. Citizenship
2. Residence
3. Domicile
4. Execution
5. Philippines
2. Intrinsic Validity
a. Time.-- time of death because. of Art. 777
 b. Place.-- Law of citizenship of decedent.
Subsection 2.—
Testamentary Capacity and Intent
Testamentification activa is the capacity to make a
will. Testamentification pasiva is the capacity to
inherit based on a will.
Who has testamentary capacity? All natural
persons.
Corporations cannot make wills. Only natural
human beings can make a will.
Art. 796. All persons who are not expressly
prohibited by law may make a will.
General rule: All persons have the testamentary
capacity to make a will. Exception: Incapacity, when
expressly prohibited by law: (1) disqualified by reason
of age (Art. 797); (2) disqualified by reason of mental
incompetence. (Art. 798.)
Art. 797. Persons of either sex under eighteen
years of age cannot make a will.
Q: How do you compute the age?
A: According to the Admin. Code, age is reckoned
according to the calendar month.
Art. 798. In order to make a will it is essential that
the testator be of sound mind at the time of its
execution.
Soundness of mind is determined at the time of the
execution of the will.
Art. 799. To be of sound mind, it is not necessary
that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able
at the time of making the will to know the nature
of the estate to be disposed of, the proper objects
of his bounty, and the character of the
testamentary act. (NPC)
1. Soundness of mind.-- does not require that
the testator be in full possession of reasoning capacity
or that it be wholly unbroken, unimpaired or
unshattered.
2. It means realization of or knowing:
a. The nature of his estate.-- Know
what you own. This does not mean that the testator
has to know the description of his property in detail. It
is enough that he has more or less a fairly accurate
idea what his properties are. This depends upon the
circumstances. Say Rockefeller. The idea is less if
you owned more. the more a person owns, the more
he is apt to forget what he has in detail. If you think
you own Ayala bridge and gives it as a devise,
something is wrong w/ you.
b. Proper objects of his bounty.--
Know his immediate relatives. Experience of mankind
is that you give to people who are attached to you by
blood. Immediate relatives referred to are spouses,
parents, children , brothers, sisters, but not first
cousins. First cousins usually are not known
especially if they live abroad. The nearer the relation,
the more you should know. The farther, the less the
law expects of you. If the testator can not recognize
his immediate relatives, then there is something
wrong.
c. Character of the testamentary act.--
Know the essence of making a will. Know that you
are: (1) making a document that disposes (freely,
gratuitously) of your property; (2) to take effect upon
your death.
Note: Even if you are insane as to other things, as
long as you know these three (3) things, you have
testamentary capacity.
3. Insanity is relative. It is different in marriage
and in contracts. But in wills, not knowing one or
more of the 3 mentioned above, you are considered
insane.
Art. 800. The law presumes that every person is of
sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was
not of sound mind at the time of making his
disposition 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.
This is the law on presumption of soundness of mind
as of the time of the execution of the will.
General rule: Presumption is for soundness of
mind.-- proponent of will does not have to prove the
soundness of mind of the testator. Why? The law on
evidence says that you don't have to prove: (1) that
w/c is admitted; (2) that w/c is presumed; and (3) that
w/c is taken judicial notice of. Disputable
presumptions may be overcome by proof to the
 contrary. There are 3 presumptions of law: (1)
conclusive; (2) quasi-conclusive w/c can be overcome
only by specific proof; (3) disputable
Exception: Insanity is rebuttable presumed when:
1. Art. 800 par. 2.-- One month or less
before the making of the will, the testator was publicly
known to be insane. E.g., A, one month before
making of the will was running in the Plaza Miranda
naked and shouting "Ibagsak!" This is what you mean
by publicly known.
2. If there had been a judicial declaration
of insanity and before such order has been revoked.
(Torres v. Lopez, 48 P 772.)
In these 2 cases, it is the proponent's duty to
offer evidence to the contrary, i.e., prove that the
making of the said will was made by the testator
during a lucid interval.
Judicial Declaration of Insanity Consists of:
1. A guardian appointed by reason of
insanity. (Rule 93, ROC.)
2. If the insane was hospitalized by order
of the court
In either of these cases, there is a
presumption of insanity. But once the order is lifted,
the presumption ceases.
Effect:
1. Rebuttable presumption of sanity is nullified or
swept away.
2. There is a rebuttable presumption of
unsoundness of mind.
Art. 801. Supervening incapacity does not
invalidate an effective will, nor is the will of an
incapable validated by the supervening of
capacity.
This article makes explicit what was mentioned in Art.
800. The requirement is that sanity should exist only
at the time of execution. Subsequent insanity does not
affect the validity of the will nor an invalid will be
validated by the recovery of the senses of the testator.
Art. 802. A married woman may make a will without
the consent of her husband, and without authority
of the court.
Art. 803. A married woman may dispose by will of
all her separate property as well as her share of
the conjugal partnership or absolute community
property.
Subsection 3.—
Forms of Wills
The object of the solemnities surrounding the
execution of the will is to close door against bad faith
and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should
be interpreted in such a way as to attain these
primordial ends.
Kinds of Wills allowed under the NCC.—
(1) ordinary or notarial will w/c requires an
attestation clause, an acknowledgement
before a notary public;
(2) holographic will w/c must be entirely written,
dated and signed in the handwriting of the
testator.
Q: How about Non-cupative Wills?
A: They are not allowed by the NCC. This kind of
will is an oral will made by the testator in
contemplation of death. This is allowed among
Muslims only.
Common Requirements for both kinds of wills:
1. It must be in writing
2. Executed in the language or dialect known to the
testator.
Q: What kind of language?
A: It must be a language (a) spoken by a substantial
number of persons; (b) must have been reduced to
writing and (c) fairly substantive body of literature
Q: What is a dialect?
A: A dialect is a variation of tongue.
Art. 804. Every will must be in writing and
executed in a language or dialect known to the
testator.
A. Requirements:
1. In writing but no specific form is required. It
could be in a marble glass or on a wall, so long
as there was testamentary capacity.
2. Written in a language or dialect known to the
testator.
B. Written Forms of Will
 1. If holographic- must be entirely written by the
testator himself in any kind of paper or
parchment.
2. If notarial- could be handwritten, typewritten
or computerized
C. Language
No requirement that testator’s knowledge of
the language be expressed either in the body or
attestation clause.
Q: In a will, can you conclude that it is void where in
the attestation clause, it was stated that the will was
read and translated to Filipino?
A: the law does not require translation or interpretation
of the language to the testator but that he himself
personally understands the said language. (No
translation or interpretation!!!)
Q: Is it necessary for a will to state that the testator
knew the language?

Suroza v. Honrado.-- In this case, respondent judge, A: No. Extrinsic/ testimonial evidence may prove this.
on perusing the will and noting that it was written
in English and was thumbmarked by an Q: Is direct evidence always necessary to prove that
obviously illiterate testatrix, could have readily the testator knew the language?
perceived that the will is void.
A: No. Sometimes, circumstantial evidence is
In the opening paragraph of the will, it sufficient. E.g., a person w/ a college degree does a
was stated that English was a language will in English. Is it not enough that he studied 3
"understood and known" to the testatrix. But in levels to prove that he understands English.
its concluding paragraph, it was stated that the
will was read to the testatrix "and translated into Gonzalez v Laurel-
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 article
804 of the Civil Code 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 and
was disallowed

Caponong-Noble v Abaja-- Caponong-Noble points

out that nowhere in the will can one discern that
Abada knew the Spanish language. Caponong-
Noble’s contention must still fail. There is no
statutory requirement to state in the will itself
that the testator knew the language or dialect
used in the will. This is a matter that a party may
establish by proof aliunde.

Caponong-Noble further argues that

Alipio, in his testimony, has failed, among others,
to show that Abada knew or understood the
contents of the will and the Spanish language
used in the will. However, Alipio testified that
Abada used to gather Spanish-speaking people
in their place. In these gatherings, Abada and his
companions would talk in the Spanish language.
This sufficiently proves that Abada speaks the
Spanish language.

Abangan v Angangan-- it is alleged the records do

not show that the testarix knew the dialect in
which the will is written. But the circumstance
appearing in the will itself that same 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.

Articles 805 to 809.—
Special Requirements for Attested Wills.
Art. 805. Every will, other than a holographic will,
must be subscribed at the end thereof by the
testator himself or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed by
three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by
him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on
the left margin, and all the pages shall be
numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of
pages used upon which the will is written, and the
fact that the testator signed the will and every
page thereof, or caused some other person to
write his name, under his express direction, in the
presence of the instrumental witnesses, and that
the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and
of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to
them.
A. 4th Paragraph-- Know the language
1. Body of the will.-- testator
2. Attestation clause
a.Testator.-- No.
b.Witnesses.-- No. Only required to know
the contents thereof.
B. Discrepancies
1. Par. 1.-- No mention that the testator signs in
the presence of witnesses and yet par. 3
states this.
2. Par. 2.-- No statement that the testator and the
witnesses must sign every page in one
another's presence and yet that is required to
be stated in the attestation clause.
These two (1 & 2) must be stated in the
attestation clause
3. Par. 3.-- In case of agent, the attestation
caluse is not required to state that the agent
signed in the testator’s presence-, but that is
required in par. 1 and par. 2.
C. Indication of Date
There is no requirement that an attested will
should be dated, unlike a holographic will.
Ortega v Valmonte-- the conflict between the dates
appearing on the will does not invalidate the
document, "because the law does not even
require that a [notarial] will x x x be executed
and acknowledged on the same occasion.".
Furthermore, the testator and the witnesses
must acknowledge the will before a notary
public. In any event, we agree with the CA that
"the variance in the dates of the will as to its
supposed execution and attestation was
satisfactorily and persuasively explained by
the notary public and the instrumental
witnesses.
C. Purpose of requisites:
1. Judgment call of Code Commission
2. Balancing of 2 policies.—
(a) to encourage a person to make a will;
(b) to make sure that the will and testament of
the testator to minimize fraud.
D. Summary Requirement:
1. Signed by the testator or his agent in his
presence and by his express direction at the
end thereof and in the presence of the
witnesses.
a. Subscribed by the testator
i. Subscribe vs Sign
 Subscribe.-- literally means "to write one's
name." or to write under
 Sign.-- "to put a distinguishing mark or
customary mark" (this is the better term to
use.) by writing his own name; a person
may sign in other ways
Article 805 uses it interchangeably:
testator affixes that mark as his signature.
ii. Thumb mark as signature
Payad v Tolentino-- The evidence of record
establishes the fact the Leoncia Tolentino,
assisted by Attorney Almario, placed her
thumb mark on each and every page of the
questioned will and that said attorney merely
wrote her name to indicate the place where
she placed said thumb mark. In other words
Attorney Almario did not sign for the testatrix.
She signed by placing her thumb mark on
each and every page thereof. "A statute
requiring a will to be ’signed’ is satisfied if the
signature is made by the testator’s mark."
Matias v. Salud.-- The testator signed affixing her
thumb mark on the will, this is because he can
no longer write due to sickness/ disease called
herpes zoster, cold, physical infirmity. As to the
clarity of the ridge impressions, it is so
dependent on aleatory
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 we do not believe testators
should be required to possess the skill of
trained officer. It is to be conceded that where
the 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 that the will was executed and witnessed
as required by law.
Q: Is a thumb mark a sufficient signature
A: Yes. A thumb mark is a sufficient signature of the
testator. In fact, it is always and under any and all
circumstances a valid way to sign a will. Reason: It
is less possible to forge. A thumb mark is always a
valid way of signing whether literate or illiterate.
However, there is also the danger of falsifying it by
affixing the thumb of a newly dead person.
Q: What if the testator has no disease but signed in his
thumb mark?
A: This will do because a thumb mark is a sufficient
signature under all circumstances.
The controversy is that what if after the
testator affixed his thumb mark, another person
signed on her behalf. Attestation clause does not
state this. I mean, it would not appear in the
attestation clause. The SC said that the person
signing on his behalf is not an agent and besides it
was already signed by the testator affixing his thumb
mark and to state this (the affixing of the thumb mark)
in the attestation is a mere surplusage.
iii. A cross as signature
Garcia v. de Lacuesta.-- Testator signed w/ a cross.
It is not here pretended that the cross
appearing on the will is the usual signature of
Antero Mercado or even one of the ways by
which he signed his name. After mature
reflection, we are not prepared to liken the
mere sign of the cross to a thumb mark, and
the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumb
mark.
General rule: A cross is unacceptable as a signature.
Exception: That is his normal or usual way of signing.
b. Signed by an agent of the testator
i. Requisites:
 Express direction of the testator;
 In the presence of the testator
ii. What agent must write:
 the name of the TESTATOR and not his
signature or name
Barut v. Cabacungan.-- The name of a person who is
unable to write may be signed by another 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. As a matter of policy it may be
wise that he do so inasmuch as it would give
such intimation as would enable a person
proving the document to demonstrate more
readily the execution by the principal. But as a
matter of essential validity of the document, it
is unnecessary. 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 be written by himself or by
another at his request, it is none the less valid,
and the fact of such signature can be proved
as perfectly and as completely when the
person signing for the principal omits to sign
his own name as it can when he actually
signs. 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
rejects and destroys a will which the statute
expressly declares is valid.
Balonan v. Abellana.-- The witness signed his name
above the typewritten words "por la testadora
Anacleta Abellana." The essential thing, for
validity, is that the agent write the testator’s
name, nothing more. It would be a good thing,
but not required, for the agent to indicate the
fact of agency or authority as: “For the testator
Juan de la Cruz, by Jose Santos.”
Guison v Concepcion—SC denied the probate of the
will because the agent Feliciano Maglaqui,
instead of writing the name of the testatrix on
the will wrote his own.
iii. Conditions
 Testators name written by 3rd person
 The law requires that testators name
written in his presence
 3rd person must affixed at testators
express direction.
In re Will of Tan Diuco, if the agent may be one of the
attesting witnesses. These are the rules: - yes
if there are more than 3 witnesses
 -unclear if there are only 3 witnesses because
one would be acting on behalf of the testator
iv. Testator directs another to sign his name.
(Testator- A; Agent- B)
 "B" is not valid
 "A" handwritten "by B" typewritten is valid
 "A" typewritten "by B" handwritten is not
valid.
 "A" is valid
c. Place of Signature
i. Where should the testator sign?
 At the foot or end of the will.
 Close or immediately following his
testamentary dispositions.
ii. 2 kinds of ends:
 Physical end.-- where the writing ends
 Logical end-- that where testamentary
disposition ends.
Usually, they are the same. But if different,
then either will do.
iii. Effect of signing before the end:
 It invalidates or makes the whole void
because of the non-compliance w/ Art.
805.
d. Signing in the Presence of Witnesses
i. Testator must sign in the presence of
witnesses
ii. Example: Testator.-- A;
Witnesses.-- B, C, D
 A signs w/ B breathing on her face. Is it
signing in the presence of the testator?
o YES.
 A signs while B is talking to C. B can see A
through his peripheral vision. Is A signing in
B' s presence?
o YES
 A signs while B is talking to C w/ B's back to
A. Is it signing in B's presence?
o YES.
 B goes out and stands behind the wall. He
cannot see A. B is also talking to C. Is a
signing in B's presence?
o NO.
Jaboneta v Gustilo—Test of Available Senses is 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 been 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.
But it is especially to be noted that the position
of the parties with relation to each other at the
moment of the subscription of each signature,
must be such that they may see each other
sign if they choose to do so. This, of course,
does not mean that the testator and the
subscribing witnesses may be held to have
executed the instrument in the presence of
each other if it appears that they would not
have been able to see each other sign at that
moment, without changing their relative
positions or existing conditions. And the
decision merely laid down the doctrine that the
question whether the testator and the
subscribing witnesses to an alleged will sign
the instrument in the presence of each other
does not depend upon proof of the fact that
their eyes were actually cast upon the paper at
the moment of its subscription by each of
them, but that at that moment existing
conditions and their position with relation to
each other were such that by merely casting
the eyes in the proper direction they could
have seen each other sign. To extend the
doctrine further would open the door to the
possibility of all manner of fraud, substitution,
and the like, and would defeat the purpose for
which this particular condition is prescribed in
the code as one of the requisites in the
execution of a will.
Nera v. Rimando.-- Actual seeing is not required.
What is required is that the person required to
be present must have been able to see the
signing, if he wanted to do so, by casting his
eyes in the proper direction. His line of vision
must not be impeded by a wall or curtain. This
is a question of fact for the lower court to
determine. Blind witnesses are therefore
disqualified.
2. Attested and subscribed by at least 3 credible
witnesses in the testator's presence and of one
another.
i. 2 distinct acts
a. Attesting- visual act; witness
b. Subscribing- manual act; sign
The three witnesses must do both
attesting and subscribing.
Taboada v. Rosal.-- In this case, the witnesses signed
at the left hand margin. Petitioner contended
that they should have signed at the same
place where the testator signed, that is, at the
bottom of the end of the will. The SC was
liberal. The objects of attestation and
subscription were fully met and satisfied in the
present case when the instrumental witnesses
signed at the left margin of the sole page
which contains all the testamentary
dispositions, especially so when the will was
properly identified by a subscribing witness to
 be the same will executed by the testatrix. The
purpose of signing at the end is to prevent
interpolation. The object of attestation and
subscription which is for identification was met
when the witnesses signed at the left hand
margin of the sole page w/c contained all the
testamentary dispositions. (This concerned a
2-page will w/ the first page containing all the
dispositions and the second page the
attestation and acknowledgement.) The will
was signed by the witnesses at each and
every page thereof.
ii. Queries:
Q: Can witnesses sign w/ thumb mark?
A: (1) YES because it is only an act of
authentication;
(2) NO because one requirement is that
witnesses must know how to read and
write w/c implies that the witness write his
name.
Q: Can the testator sign before first the
witness?
A: NO. Art. 805 requires that the testator
should sign at their presence
Q: Can the validity be affected if the witness
signed ahead of the testator?
A: NO. Provided it is made in one occasion or
transaction. However, in strict theory, it
cannot be done because before the
testator signed there is no will at all w/c
the witnesses can sign and attest to. If
there is more than one transaction, then
the testator must always sign ahead of the
witnesses.
Q: Can a witness be an agent who will sign for
the testator?
A: (a) Yes. There is no prohibition.
(b) No. The testator must sign before 3
witnesses. He cannot sign before himself.
To be safe, do not let this happen. As the
lawyer, be sure you have at least 3 witnesses.
iii. Where must witnesses sign?
 Literal requirement.-- witnesses must also
sign at the end/ last page In the case.-- as
long as signed in the margin, OK (Taboada
vs Rosal) Now.-- under or on margin, OK.
3. The testator or his agent must sign every page
except the last on the left margin.
a. Purpose
 to prevent the disappearance of the
pages.
b. "Every page except the last." Why not the
last?
 Because it will already be signed at
the bottom.
c. Left hand margin.-- requirement was made
when right hand was not justified when typed.
d. Now, testator can sign anywhere in the page.
 Mandatory- signed on every page
in the presence of witnesses.
 Directory- place where it is found is on
the left margin
Abangan vs. Abangan--This would not be the first
time that this Court departs from a strict and
literal application of the statutory requirements,
where the purposes of the law are otherwise
satisfied. Thus, despite the literal tenor of the
law, this Court has held that a testament, with
the only page signed at its foot by testator and
witnesses, but not in the left margin, could
nevertheless be probated
4. Witnesses must sign each and every page,
except the last, on the left margin.
i. Witnesses may sign anywhere as long as they
sign
ii. General rule, is that, the failure to sign any
page is a fatal defect
Exception:
Icasiano v. Icasiano.-- On the question of law, we
hold that the inadvertent failure of one witness
to affix his signature to one page of a
testament, due to the simultaneous lifting of
two pages in the course of signing, is not per
se sufficient to justify denial of probate.
Impossibility of substitution of this page is
assured not only the fact that the testatrix and
two other witnesses did sign the defective
page, but also by its bearing the coincident
imprint of the seal of the notary public before
whom the testament was ratified by testatrix
and all three witnesses. The law should not be
so strictly and literally interpreted as to
penalize the testatrix on account of the
inadvertence of a single witness over whose
conduct she had no control, where the
purpose of the law to guarantee the identity of
the testament and its component pages is
sufficiently attained, no intentional or
deliberate deviation existed, and the evidence
 on record attests to the full observance of the
statutory requisites In the will submitted for
probate, one page was not signed by one of
the witnesses. Such failure to sign was due to
inadvertence since in the copy, all pages were
signed. The SC held that this was not a fatal
defect. Considering the circumstances, the
fact that the other requirement was complied
with, and the notarial seal coincided w/ the
third page during the sealing, then the will
could be probated. Unusual circumstances w/c
existed in the case:
c. Where must witnesses sign?
(a) There was another copy
(b) Inadvertence/ oversight
Azuela v CA-- the signatures to the attestation clause
(c) Because of the notarial seal.
The presence of these facts led the SC to
allow the will..
iii. Query:
Q: Is there any particular order of signing?
A: (a) No. As long as the signing is done on
one occasion or one continuing
transaction.
(b) Yes. If the signing is not done on one
occasion or transaction. In such a case,
there is nothing that the witness is
attesting to.
5. All pages must be numbered in letters on the
upper part of the page.
a. Mandatory.—form of order; there must be a
method by w/c the sequence of the pages can
be known; to prevent an insertion or taking
out of a page.
b. Directory- it is numbered on the part of the
page.
e.g. letters, numbers, Arabic, roman numerals,
etc.; any conventional sequence of symbols is
allowed
6. Attestation Clause.
a. It is a separate memorandum or record of the
facts surrounding the conduct of execution and
once signed by the witnesses; it gives
affirmation to the fact that compliance with the
essential formalities required by law has been
observed. It is made for the purpose of
preserving in a permanent form a record of the
facts 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
b. Three things that must be stated:
i. the number of pages in the will
ii. the fact that the testator or his agent
signed the will in every page thereof in
the presence of the instrumental
witnesses
iii. the fact that the instrumental witnesses
witnessed and signed the will and all the
pages thereof in the presence of the
testator and one another.
 At the bottom in order to prevent additions.
establish that the witnesses are referring to the
statements contained in the attestation clause
itself. Indeed, the attestation clause is
separate and apart from the disposition of the
will. An unsigned attestation clause results in
an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the
page containing the unsigned attestation
clause, such signatures cannot demonstrate
these witnesses’ undertakings in the clause,
since the signatures that do appear on the
page were directed towards a wholly different
avowal.
The Court may be more charitably disposed
had the witnesses in this case signed the
attestation clause itself, but not the left-hand
margin of the page containing such clause.
Without diminishing the value of the
instrumental witnesses’ signatures on each
and every page, the fact must be noted that it
is the attestation clause which contains the
utterances reduced into writing of the
testamentary witnesses themselves. It is the
witnesses, and not the testator, who are
required under Article 805:
 to state the number of pages used
upon which the will is written;
 the fact that the testator had signed
the will and every page thereof; and
 that they witnessed and signed the will
and all the pages thereof in the
presence of the testator and of one
another.
The only proof in the will that the witnesses
have stated these elemental facts would be
their signatures on the attestation clause.
Thus, the subject will cannot be considered to
have been validly attested to by the
instrumental witnesses, as they failed to sign
the attestation clause.
It might be possible to construe the averment
as a jurat, even though it does not hew to the
 usual language thereof. A jurat is that part of
an affidavit where the notary certifies that
before him/her, the document was subscribed
and sworn to by the executor. Ordinarily, the
language of the jurat should avow that the
document was subscribed and sworn before
the notary public, while in this case, the notary
public averred that he himself "signed and
notarized" the document. Possibly though, the
word "ninotario" or "notarized" encompasses
the signing of and swearing in of the executors
of the document, which in this case would
involve the decedent and the instrumental
witnesses.
Cagro v. Cagro.-- In the case, the page where the
attestation clause appears was signed by the
witnesses on the side and not after the
attestation clause. The SC held that this was a
fatal defect. The logic is that if there had been
no signature at the bottom but on the sides,
there will be ample room for fraud, that is, to
add in the attestation clause upon the death of
the decedent an essential matter w/c was not
there in the first place to validate it.
The petitioner and appellee contends that
signatures of the three witnesses on the left-
hand margin conform substantially to the law
and may be deemed as their signatures to the
attestation clause. This is untenable, because
said signatures are in compliance with the
legal mandate that the will be signed on the
left-hand margin of all its pages. If an
attestation clause not signed by the three
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.
e. Queries:
Q: Must the language of the will be understood
or known by the witnesses?
A: NO. After all, witnesses need not know the
contents of the will.
Q: Is it required that the witnesses knew the
language of the attestation clause?
A: NO. So long as it has been interpreted to
them.
Q:Must the testator know the language of the
attestation clause?
A: NO. What is required of the testator is to
know the language of the will. An express
requirement of Art. 804.
Q:Must the testator sign the attestation
clause?
A: NO.
Q: Must an attested will be dated?
A: No. Lack of date does not annul an attested
will. But a holographic will must be dated.
(Art. 810.)
Abangan v. Abangan.-- What has been said is also
applicable to the attestation clause.
Wherefore, without considering whether or not
this clause is an essential part of the will, we
hold that in the one accompanying the will in
question, the signatures of the testatrix and of
the three witnesses on the margin and the
numbering of the pages of the sheet are
formalities not required by the statute.
Moreover, referring specially to the signature
of the testatrix, we can add that same is not
necessary in the attestation clause because
this, as its name implies, appertains only to the
witnesses and not to the testator since the
latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will
consisting of two sheets the first of which
contains all the testamentary dispositions and
is signed at the bottom by the testator and
three witnesses and the second contains only
the attestation clause and is signed also at the
bottom by the three witnesses, it is not
necessary that both sheets be further signed
on their margins by the testator and the
witnesses, or be paged.
7. Acknowledgment before a notary public.
 Notarization.-- A will is a public instrument
that is why it must notarized.
Art. 806. Every will must be acknowledged before
a notary public by the testator and the witnesses.
The notary public shall not be required to retain a
copy of the will, or file another with the office of
the Clerk of Court.
 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.
Lee v Tambago-- An acknowledgment is the act of
one who has executed a deed in going before
some competent officer or court and declaring
it to be his act or deed. It involves an extra
step undertaken whereby the signatory
actually declares to the notary public that the
same is his or her own free act and deed. The
acknowledgment in a notarial will has a two-
fold purpose:
 (1) to safeguard the testator's wishes long
after his demise and

(2) to assure that his estate is administered in

the manner that he intends it to be done.

Javellana v. Ledesma.-- The case deals w/ the

question of whether or not
acknowledgement of the will should be done
on the same occasion as the execution of the
will. The SC said no. The law does not require
that execution and acknowledgement be done
on the same occasion. Acknowledgement may
be validly done after execution. In fact, the
testator and the witnesses do not have to
acknowledge together. You can acknowledge
one by one. The law does not require it to be
made simultaneously. As long as the testator
maintains his testamentary capacity and the
witnesses maintain their witnessing capacity
until the last person acknowledges, then the
will is valid. However, if the testator dies before
the last person acknowledges, then the will is
not valid. The will is considered as being
unacknowledged.
the
Articles 807 and 808 are special additional
requirements which are mandatory.
Art. 807. If the testator be deaf, or a deaf-mute, he
must personally read the will, if able to do so;
otherwise, he shall designate two persons to read
it and communicate to him, in some practicable
manner, the contents thereof.
This provision lists down a special requirement if a
notarial will is executed by a deaf-mute testator.
1. There are two cases contemplated: (1)
If the testator can read, then he must read the will
personally; (2) If illiterate, then 2 persons must read
the will and communicate to him the meaning of the
will in some practicable manner.

2. The law is not clear if the 2 persons

Cruz v. Villasor-- This case involves a will wherein the
notary public was also one of the three
instrumental witnesses. We are inclined to
sustain that of the appellant that the last will
and testament in question was not executed in
accordance with law. The notary public before
whom the will was acknowledged cannot be
considered as the third instrumental witness
since:
(1) The notary public cannot be an oath
witness and at the same time an oath
taker. It is impossible for him to
acknowledge before himself;
(2) the aim of the notary public to insure the
trustworthiness of the instrument would be
lost because he will try to insure the
validity of his own act.
General rule: The notary public cannot be a
witness.
Exception: When there are more than 3 witnesses.
In such a case, the requisite of 3
witnesses is achieved.
Gabucan v. Manta.-- In the case, the notarial
acknowledgement of the will lacked a
documentary stamp. As such, the judge in the
lower court denied probate. On appeal the SC
ruled that the absence of the documentary
stamp does not affect the validity of the will. Its
only effect is to prevent it from being presented
as evidence. The solution is to buy a
documentary stamp and attach it to the will.
reading it to him would do it separately or in
consonance.
3. These additional requirements are
mandatory by perfect analogy to the case of Garcia v.
Vasquez..
Art. 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before
whom the will is acknowledged.
1. If the testator is blind, the will must be read to
him twice:
(1) by one of the subscribing witnesses;
(2) by the notary public, not necessarily in that
order.
2. Queries
Q:Is the provision mandatory?
A: Yes. If this is not followed, the will is
void.
In the case, the will was read to the testator only
once. The SC denied probate of the will for
failing to comply w/ the requirements of Art. 808.
Such failure is a formal defect.
Q: Can this be presumed?
A: No.
 Q: Can this be proven to have been complied w/
by competent evidence?
A: Yes. In the absence of w/c the will is void.
Such fact or reading must be proven by
evidence during the probate proceedings.
3. Purpose:
The reading is mandatory for the purpose of
making known to the testator the provision of the
will so that he may object if it is not in accordance
w/ his wishes.
Garcia v Vasquez-- 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. That the aim of
the law is to insure that the dispositions of the
will are properly communicated to and
understood by the handicapped testator, thus
making them truly reflective of his desire, is
evidenced by the requirement that the will
should be read to the latter, not only once but
twice, by two different persons, and that the
witnesses have to act within the range of his
(the testator’s) other senses.
Alvarado v Gaviola-- Art. 808 applies not only to blind
testators but also to those who, for one reason
or another, are "incapable of reading the(ir)
will(s)." Since Brigido Alvarado was incapable
of reading the final drafts of his will and codicil
on the separate occasions of their execution
due to his "poor," "defective," or "blurred"
vision, there can be no other course for us but
to conclude that Brigido Alvarado comes within
the scope of the term "blind" as it is used in
Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or
not the lawyer who drafted the will and codicil
did so confortably with his instructions. Hence,
to consider his will as validly executed and
entitled to probate, it is essential that we
ascertain whether Art. 808 had been complied
with.
In the case at bar, private respondent read the
testator's will and codicil aloud in the presence
of the testator, his three instrumental
witnesses, and the notary public. Prior and
subsequent thereto, the testator affirmed, upon
being asked, that the contents read
corresponded with his instructions. Only then
did the signing and acknowledgement take
place. There is no evidence, and petitioner
does not so allege, that the contents of the will
and codicil were not sufficiently made known
and communicated to the testator. On the
contrary, with respect to the "Huling Habilin,"
the day of the execution was not the first time
that Brigido had affirmed the truth and
authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that
Brigido Alvarado already acknowledged that
the will was drafted in accordance with his
expressed wishes even prior to 5 November
1977 when Atty. Rino went to the testator's
residence precisely for the purpose of securing
his conformity to the draft.
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
Art. 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in the form
of attestation or in the language used therein
shall not render the will invalid if it is proved that
the will was in fact executed and attested in
substantial compliance with all the requirements
of article 805.
This is a liberalization rule, an attempt to liberalize
Articles 804 to 808. Substantial compliance w/ Articles
805 and 806 will validate the will despite some
defects in the attestation clause.
Art 809 abrogated the rule on strict interpretation,
Provide:
i. Without bad faith, forgery, fraud,
undue/improper influence/pressure
ii. With respect to form of the attestation
and language employed
Utmost Liberalization-- Looking at Art. 809, you get
the impression of utmost liberalization. We cannot
determine how liberal we can be or can we go. This
article does not give a clear rule. JBL Reyes and
Tolentino suggest that you make a distinction.
Rule of Strict Interpretation-- if omission would be
fatal to the validity of the will
Rule of Liberal Interpretation—not fatal provided that
it can be established or deduced from an examination
Guide: If the defect is something that can be
remedied by the visual examination of the will itself,
liberalize. If not, then you have to be strict.
Illustration: If in an attestation clause, the number of
pages used was not stated, then you can liberalize
because by examining the will itself, you can detect
the defect. This is because the pagination of
statement in the attestation clause is merely a double
check.
 If the attestation clause failed to state that "the
testator signed in the presence of witnesses," and this
cannot be remedied by visual examination of the will,
then you need to be strict.
Caneda v CA-- While it may be true that the
attestation clause is indeed subscribed at the
end thereof and at the left margin of each
page by the three attesting witnesses, it
certainly cannot be conclusively inferred
therefrom that the said witness affixed their
respective signatures in the presence of the
testator and of each other since, as petitioners
correctly observed, the presence of said
signatures only establishes the fact that it was
indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in
the presence of the testator and of each other.
The execution of a will is supposed to be one
act so that where the testator and the
witnesses sign on various days or occasions
and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.
We believe that the further comment of former
Justice J.B.L. Reyes regarding Article 809,
wherein he urged caution in the application of
the substantial compliance rule therein, is
correct and should be applied in the case
under consideration, as well as to future cases
with similar questions:
. . . The rule must be limited to disregarding
those defects that can be supplied by an
examination of the will itself: whether all the
pages are consecutively numbered; whether
the signatures appear in each and every page;
whether the subscribing witnesses are three or
the will was notarized. All these are facts that
the will itself can reveal, and defects or even
omissions concerning them in the attestation
clause can be safely disregarded. But the total
number of pages, and whether all persons
required to sign did so in the presence of each
other must substantially appear in the
attestation clause, being the only check
against perjury in the probate proceedings.
(Emphasis ours.)
the signing by the testator of the will and all of
its pages and that said instrumental witnesses
also signed the will and every page thereof in
the presence of the testator and of one
another.
Lopez v Lopez-- The law is clear that the attestation
must state the number of pages used upon
which the will is written. The purpose of the
law is to safeguard against possible
interpolation or omission of one or some of its
pages and prevent any increase or decrease
in the pages.9
While Article 809 allows substantial
compliance for defects in the form of the
attestation clause, Richard likewise failed in
this respect. The statement in the
Acknowledgment portion of the subject last will
and testament that it "consists of 7 pages
including the page on which the ratification
and acknowledgment are written"10 cannot be
deemed substantial compliance. 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
Celede v Avena—Attestation Clause mistakenly
stated the will had 3 pages when in fact it had
only 2 is valid

The foregoing considerations do not apply

where the attestation clause totally omits the
fact that the attesting witnesses signed each
and every page of the will in the presence of
the testator and of each other. 35 In such a
situation, the defect is not only in the form or
language of the attestation clause but the total
absence of a specific element required by
Article 805 to be specifically stated in the
attestation clause of a will. That is precisely
the defect complained of in the present case
since there is no plausible way by which we
can read into the questioned attestation clause
statement, or an implication thereof, that the
attesting witness did actually bear witness to

Articles 810 to 814
Provisions on Holographic Wills.
A. Advantages:
1. Cheaper, simple, easier to revise, no notary
public needed
2. Absolute secrecy is guaranteed- only you, the
father and the members of the family will know
its contents.
B. Disadvantages:
1. Precisely because. it guarantees secrecy and
is simpler, it is also easier to falsify-- less
people you need to collude w/-- only yourself,
but in attested will, you need at least four (4)
other people.
2. It may not express testator's wishes due to
faulty expression
3. No protection against causes vitiating consent
because. there are no witnesses-- danger is
higher.
4. Does not reveal testamentary capacity of
testator due to lack of witnesses
5. Easier to conceal than an attested will.-- you
can allege that no will was made
6. Generally, danger of ambiguity is greater than
in attested wills.-- because. testator is not a
lawyer, he may not understand technical and
legal words. In attested will, the testator is
assisted by a lawyer.
JBL Reyes opines that the disadvantages
outweigh the advantages. He suggested a middle
ground, a mystic will (testamento cerrado.) It is not as
strict as a notarial will, but not as fraught w/ risks as a
holographic will. This kind of will is sealed in an
envelope and brought to the notary who puts his seal
and signs to authenticate, and it will be opened only
upon the death of the testator. This kind of will
minimizes the risk of fraud and protects the privacy of
the testator.
Art. 810. A person may execute a holographic will
which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the
Philippines, and need not be witnessed.
A. Real Requirements.-- MANDATORY.
1. Completely handwritten by the testator
2. Dated by the testator
3. Signed by the testator
4. Article 804 (written and known language)
1. Entirely written by the testator (NO
EXCEPTION!!!)
i. If another person wrote an additional part
w/o knowledge of the testator, the will is
VALID but the addition is VOID.
ii. If another person wrote an additional part
w/ the knowledge of the testator, VOID.
2. Entirely Dated by the hand of the testator
a. What if the date in the holographic will
wrong? (February 30, 2020)
i. If the date is proven wrong, then its
validity depends on whether the
error is deliberate or not.
- If deliberate, the will is
considered not dated and the will
is void
- If not deliberate, the date will be
considered as the true date. This
may proven by evidence aliunde.
b. Date is usually written by putting the day,
month, and year. However, other ways
may be adopted such as "Christmas day
of 1995.”
c. Cases:
Roxas v. de Jesus.-- On the will, the date was written
as "Feb./ 61." We have carefully reviewed the
records of this case and found no evidence of
bad faith and fraud in its execution nor was
there any substitution of Wins and Testaments.
There is no question that the holographic Will
of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the
testatrix herself and in a language known to
her. There is also no question as to its
genuineness and due execution. All the
children of the testatrix agree on the
genuineness of the holographic Will of their
mother and that she had the testamentary
capacity at the time of the execution of said
Will. The objection interposed by the
oppositor-respondent Luz Henson is that the
holographic Will is fatally defective because
the date "FEB./61 " appearing on the
holographic Will is not sufficient compliance
with Article 810 of the Civil Code. This
objection is too technical to be entertained.
As a general rule, the "date" in a holographic
Will should include the day, month, and year of
 its execution. However, when as in the case at
bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the
authenticity of the Will is established and the
only issue is whether or not the date "FEB./61"
appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code,
probate of the holographic Will should be
allowed under the principle of substantial
compliance.
Labrador v. Ca.-- In this case , the date was
indicated in the body of the will as part of the
narration. The will has been dated in the hand
of the testator himself in perfect compliance
with Article 810. It is worthy of note to quote
the first paragraph of the second page of the
holographic will, viz:
“And this is the day in which we agreed that
we are making the partitioning and assigning
the respective assignment of the said
fishpond, and this being in the month of
March, 17th day, in the year 1968, and this
decision and or instruction of mine is the
matter to be followed. And the one who made
this writing is no other than MELECIO
LABRADOR, their father.”
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. These requirements are present in the
subject will.
3. Entirely signed by the hand of the testator
a. Ideally subscription.-- the signature must
consist of the testator's writing his name
down(full name, customary signature). The
reason for this is since he is able to write
his will, then he is literate enough to write
his name.
b. Thumb mark or cross is not allowed.
B. Queries
Q: Are holographic wills in letters allowed?
A: Yes, provided there is an intent on the part of
the testator to dispose of the property in the
letters and the 3 requisites are present.
E.g., "I give you 1/2 of my estate as
provided for in the document I kept in the safe."
This is a holographic will because. the letter does
not in itself dispose of the property.
Q: Can a blind testator make a holographic will?
A: Yes. There is no form required. What is
important is the presence of the 3 requisites.
Art. 811. In the PROBATE of a holographic will, it
shall be necessary that at least one witness who
knows the handwriting and signature of the
testator explicitly declare that the will and the
signature are in the handwriting of the testator. If
the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witness
referred to in the preceding paragraph, and if the
court deem it necessary, expert testimony may be
resorted to.
A. Application
 Applies only to post mortem probate and not
to ante mortem.
B. Rule 132, Sec 22, Rules of Court—Genuinenessof
a handwriting may be proved by the following:
1. A witness who actually saw the person
writing the instrument
2. A witness familiar with such 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 thereon
4. Expert evidence
C. Requirements in the Probate of Holographic Wills:
1. Documentary Requirement
a. General rule: The will itself must be
presented
b. Exception: If there is an existing copy or
duplicate photostatic xerox.
Gan v. Yap.-- In the case, the proponent of the
supposed will sought to establish its contents
through extrinsic evidence. The SC denied
such attempt to probate a holographic will that
was not presented before the court. The SC
said that the actual will should be presented to
the court. The reason is that the will itself is the
only material proof of authenticity. How can
they oppose the will if the will is not there?
The execution and the contents of a lost or
destroyed holographic will may not be proved
by the bare testimony of witnesses who have
seen and/or read such will. The will itself must
be presented; otherwise, it shall produce no
effect. The law regards the document itself as
material proof of authenticity.
c. E.g., You are presented in the probate
court the bloody test papers of A in Civil
Law, just to show the handwriting of A,
but you do not have the will. How will
you compare when you do not have any
will to be compared. But if the will is
there, I would be the first one to prove
 your handwriting by showing your bloody
test papers.
Rodelas v. Aranza.-- In the case, the proponent of the
will sought to present a copy of the
holographic will to the court. The court allowed
the production of the copy. A photostatic copy
or xerox copy of the holographic will may be
allowed because comparison can be made
with the standard writings of the testator
The basis of this acceptance is the footnote
no. 8 in Gan v. Yan where the court said that
“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.".”
If the holographic will has been lost or
destroyed and no other copy is available, the
will cannot be probated because the best and
only evidence is the handwriting of the testator
in said will. It is necessary that there be a
comparison between sample handwritten
statements of the testator and the handwritten
will.
d. The merit of the case is doubtful.
Authenticity of the will is based on the
handwriting and the signature.
Handwriting experts use as a basis the
penlifts of the writer. In photocopies, it’s
not discernible and so experts are
deprived of their basis in determining
authenticity of will.
e. Lost holographic wills cannot be
probated even by the testimonies of the
witnesses. The reason is that the will
itself is the only proof of its authenticity.
2. Testimonial Requirement
a. Uncontested handwriting of will-- only
one (1) witness to identify the signature
and handwriting of the testator.
b. Contested handwriting of will.—three (3)
witnesses to identify the signature and
handwriting of the testator.
Azaola v. Singson.-- In the case, the oppositors of the
will contested the will on the ground that it was
executed through fraud. They, however,
admitted its due execution. During the case,
the proponent presented only one witness to
identify the signature and handwriting of the
testator
The SC held that one witness is sufficient.
What the law envisions is that the
genuineness of the handwriting and signature
be contested. Contested holographic will
refers to the challenge by the oppossitors that
the will is not in the handwriting of the
deceased.
The authenticity of the will is not contested.
Therefore, the will itself, not being contested,
was that of the testator. The oppossitors here
precisely admit that authenticity of the will but
oppose on the ground that there is fraud or
undue influence initiated upon her in the
execution of the will. Hence, it is uncontested.
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.
Obiter dictum The 3 witness provision for
contested holographic will is merely directory.
The court upon satisfying itself of the
authenticity of the will can require one or ten
witnesses. The judge knows best.
Codoy v Calugay--"It may be true that the rule of this
article (requiring that 3 witnesses be presented
if the will is contested and only one if no
contest is had) was derived from the rule
established for ordinary testaments. But it
cannot be ignored that the requirement can be
considered mandatory only in case of ordinary
testaments, precisely because the presence of
at least three witnesses at the execution of
ordinary wills is made by law essential to their
validity (Art. 805). Where the will is
holographic, no witness need be present and
the rule requiring production of three
witnesses must be deemed merely permissive
if absurd results are to be avoided.
A visual examination of the holographic will
convince us 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.
c. Does Codoy reverse Azaola?
i. Codoy ruling was not based on their
being less than 3 witnesses(there
were 6)
 ii. Neither did the ruling state that since
there were less than 3 required by Article 814 of the Civil Code. The
witnesses(only the testimonies of
Binanay and Calugay were
considered at length), even if their
testimony was convincing the
probate must be denied because of
the mandatory import of Art 811(the
testimony of the two witnesses was
found to be indecisive)
iii. Therefore the basis of the ruling was
that evidence for authenticity was
not adequate, not failure to present
3 witnesses. Which if analyzed
closelyis in accord with Azaola,
which stated that the decisive factor
is not quantity but quality.
Art. 812. In holographic wills, the dispositions of
the testator written below his signature must be
dated and signed by him in order to make them
valid as testamentary dispositions.
To authenticate additional dispositions, the
same must be signed and dated by the
testator.
Art. 813. When a number of dispositions
appearing in a holographic will are signed without
being dated, and the last disposition has a
signature and date, such date validates the
dispositions preceding it, whatever be the time of
prior dispositions.
A. If a will has several additions, the testator has two
options:
(1) Sign each disposition and sign and date the
last; or
(2) Sign and date each one of the additions.
Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
A. Insertion, Cancellation, Erasure, or Alteration.—
Authenticate by "full signature," that is,
in the manner the testator usually signs his
name.
Kalaw v Relova— It should be noted that the first
alteration crossing out "sister Rosa K. Kalaw"
and inserting "brother Gregorio Kalaw" as sole
heir is not even initialed by the testatrix. Only;’
the second alteration crossing out "sister Rosa
K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initiated). Probate
of the radically altered will replacing Gregorio
for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the
full signature of the executrix as mandatory
original unaltered will naming Rosa as sole
heir cannot, however, be given effect in view of
the trial court’s factual finding that the testatrix
had by her own handwriting substituted
Gregorio for Rosa, so that there is no longer
any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and
both Rosa and Gregorio as her next of kin
succeed to her intestate estate.
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have not been
noted under his signature, . . . the Will is not
thereby invalidated as a whole, but at most
only as respects the particular words erased,
corrected or interlined.
However, 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 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. The ruling in
Velasco, supra, must be held confined to such
insertions, cancellations, erasures or
alterations in a holographic Will, which affect
only the efficacy of the altered words
themselves but not the essence and validity of
the Will itself. As it is, with the erasures,
cancellations and alterations made by the
testatrix herein, her real intention cannot be
determined with certitude..
Alteration 1: Not signed, thus, not valid.
Alteration 2: Initialed, thus, not valid; it must be
full signature.
Ajero v CA-- Failure to strictly observe other
formalities will not result in the disallowance of
a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code
shows that its requirement affects the validity
of the dispositions contained in the
holographic will, but not its probate. If the
testator fails to sign and date some of the
dispositions, the result is that these
dispositions cannot be effectuated. Such
 failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be
admitted to probate, notwithstanding non-
compliance with the provisions of Article 814.
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.
It is also proper to note that the requirements
of authentication of changes and signing and
dating of dispositions appear in provisions
(Articles 813 and 814) separate from that
which provides for the necessary conditions
for the validity of the holographic will
As a general rule, courts in probate
proceedings are limited to pass only upon the
extrinsic validity of the will sought to be
probated. However, in exceptional instances,
courts are not powerless to do what the
situation constrains them to do, and pass upon
certain provisions of the will. 11 In the case at
bench, decedent herself indubitably stated in
her holographic will that the Cabadbaran
property is in the name of her late father, John
H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its
entirety.). Thus, as correctly held by
respondent court, she cannot validly dispose
of the whole property, which she shares with
her father’s other heirs.
General rule: Compliance with extrinsic
requirement but if testamentary capacity is discussed
insert it.
Articles 815 to 817.—
Laws which govern formal execution according to
the place of execution.
o Filipino in a foreign country
Art. 815. When a Filipino is in a foreign country,
he is authorized to make a will in any of the forms
established by the law of the country in which he
may be. Such will may be probated in the
Philippines.
o Alien abroad
Art. 816. The will of an alien who is abroad
produces effect in the Philippines if made with the
formalities prescribed by the law of the place in
which he resides, or according to the formalities
observed in his country, or in conformity with
those which this Code prescribes.
o Alien in the Philippines
Art. 817. A will made in the Philippines by a citizen
or subject of another country, which is executed
in accordance with the law of the country of
which he is a citizen or subject, and which might
be proved and allowed by the law of his own
country, shall have the same effect as if executed
according to the laws of the Philippines.
1. Four combinations as to situation:
a. Filipino makes a will in the Philippines
b. Filipino makes a will abroad.
c. Foreigner makes a will in the Philippines
d. Foreigner makes a will abroad.
2. What law governs the validity of will?
a. Intrinsic.-- the national law of the testator
b. Time.-- At the time of death.
c. Place.-- the same for Filipinos and aliens.
The same rule wherever you make your
will. You have five (5) choices-- the law of
i. The testator's citizenship
ii. Testator's domicile
 iii. Place of execution
iv. Testator's residence
v. Philippines.
3. Examples
o An Argentine citizen, domiciled in France,
residing in Belgium visiting the Philippines.
In Japan, he executed a will. He may
choose among the five (5) places as to
what law shall govern the formal
requirements of his will.
o If Ruben executed a will in Makati, he will
have to follow Philippine law because all
the choices points to that only.
Salud v Tolete-- The respective wills of the Cunanan
spouses, who were American citizens, will only
be effective in this country upon compliance
with the following provisions of the Civil Code
of the Philippines. . . . Thus, proof that both
wills conform with the formalities prescribed by
New York laws or by Philippine laws is
imperative. The evidence necessary for the
reprobate or allowance of wills which have
been probated outside of the Philippines are
as follows: (1) the due execution of the will in
accordance with the foreign laws; (2) the
testator has his domicile in the foreign country
and not in the Philippines; (3) the will has been
admitted to probate in such country; (4) the
fact that the foreign tribunal is a probate court,
and (5) the laws of a foreign country on
procedure and allowance of wills. Except for
the first and last requirements, the petitioner
submitted all the needed evidence.
In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills
contain essentially the same provisions and
pertain to property which in all probability are
conjugal in nature, practical considerations
dictate their joint probate. As this Court has
held a number of times, it will always strive to
settle the entire controversy in a single
proceeding leaving no root or branch to bear
the seeds of future litigation. Respondent
Judge’s view that the Rules on allowance of
wills is couched in singular terms and
therefore should be interpreted to mean that
there should be separate probate proceedings
for the wills of the Cunanan spouses is too
literal and simplistic an approach. Such view
overlooks the provisions of Section 2, Rule 1
of the Revised Rules of Court, which advise
that the rules shall be "liberally construed in
order to promote their object and to assist the
parties in obtaining just, speedy, and
inexpensive determination of every action and
proceeding." A literal application of the Rules
should be avoided if they would only result in
the delay in the administration of justice.
Art. 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third
person.
1. Definitions.—
(a) A joint will is one document w/c serves as the
will of 2 persons; this is prohibited;
(b) A reciprocal will involves 2 instruments
reciprocally making each other heir; this is not
prohibited.
2. Why are Joint Wills Prohibited?
(a) The limitation on the modes of revocation(i.e.,
one of the testators would not be able to
destroy the document without also revoking
the will of the other testator, or in any event, as
to the latter, the problem of unauthorized
destruction would come in) It runs counter to
the idea that wills are revocable. It
makes the revocation more difficult. E.g.,
tearing it up-- destroys the will of another.
(b) the diminution of testamentary secrecy; It
undermines the personal element of a will.-- It
becauseomes a multiple will.
(c) It encourages undue influence,
(d) danger of one testator killing the other because
generally, joint wills benefit each other.
3. Examples:
a. One sheet of paper. On each side is a will of
one person. Is it valid?
YES, because there are 2 documents.
b. One sheet of paper. On the front page, on the
upper half is a will of A. On the bottom half is
the will of B. Is it valid? YES. This is not a joint
will because there are still 2 documents.
4. In Germany, joint wills are allowed only if executed
by the spouses.
5. The presumption is that wills are valid. The fault
probably is in the wording of the law. Joint will--
one instrument. What the law prohibits is not 2
wills on the same sheet of paper but joint wills.
Dacanay v Florendo-- The prohibition of article 669 or
the expression by two or more testators of
their wills in a single document and by one act,
rather than against mutual or reciprocal, wills
may be separately executed
"The provision of article 669 of the Civil Code
prohibiting the execution of a will by two or
more persons conjointly or in the same
instrument either for their reciprocal benefit or
 for the benefit of a third person, is not unwise b. If made here and their country allows them to
and is not against public policy. The reason for do this? There are 2 views on this:
this provision, especially as regards husband
and wife, is that when a will is made jointly or (i) Yes, follow the personal law.
in the same instrument, the spouse who is
more aggressive, stronger in will or character (ii) No because. It is against public policy.
and dominant is liable to dictate the terms of
the will for his or her own benefit or for that of Subsection 4.—
third persons whom he or she desires to favor. Witnesses to Wills.
And, where the will is not only joint but
o Applicable only to notarial will since holographic
reciprocal, either one of the spouses who may
will need not be witnessed.
happen to be unscrupulous, wicked, faithless
or desperate, knowing as he or she does the
terms of the will whereby the whole property of
the spouses both conjugal and paraphernal Art. 820. Any person of sound mind and of the
goes to the survivor, may be tempted to kill or age of eighteen years or more, and not blind, deaf
dispose of the other. or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in
Dela Cerna v Rebaca-Potot--
article 805 of this Code.

Art. 821. The following are disqualified from being

witnesses to a will:

(1) Any person not domiciled in the

Philippines;

(2) Those who have been convicted of

falsification of a document, perjury or false
testimony.

A. Six Qualifications of Witnesses to Wills or

Requisites for Competence to be a Witness:

a. Sound Mind.-- Ability to comprehend what he

is doing, same as soundness of mind for
contracts.

b. At least 18 yrs or over.-- Computed according

to the calendar year.

c. Not Blind, deaf and mute/ dumb.-- This is

important because these are the three senses
Art. 819. Wills, prohibited by the preceding article, you use for witnessing.
executed by Filipinos in a foreign country shall
d. Able to read and write.-- Literate. Some
not be valid in the Philippines, even though
commentators say thumb mark is not sufficient
authorized by the laws of the country where they
for witnesses; he has to affix his signature.
may have been executed.
e. He must be domiciled in the Philippines.
1. This provision is an exception to the rule
enunciated in Articles 815 to 817 that for Filipinos, Q: If a will is executed abroad in a place
as long as the will is valid in the place of execution, where there is no one domiciled in the
then it is valid in the Philippines Philippines. although there are Filipino
citizens not domiciled in the Philippines.,
2. Filipinos, whether here or abroad, cannot execute does domicile requirement still apply?
joint wills. It is against public policy.
A: There are two answers for all theory
3. Can aliens execute joint wills?
oYES because the law does not
a. If executed in the country where it is allowed, distinguish
YES, it may be probated here.
 oNO, there is an implied qualification.--
The rule applies in wills executed in
the Philippines.
To be practical, there are two solutions:
o You have 5 choices as to w/c law
governs. Choose any.
o Just execute a holographic will.
f. He must not have been convicted of
falsification of document, perjury or false
testimony.
Q: Why not rape?
A: Because chastity has nothing to do w/
truthfulness. Truthfulness is the gauge.
Gonzales v. CA.-- In the case, the oppossitor of the
probate alleged that the will cannot be
probated because the proponent was not able
to prove that the 3 witnesses were credible.
She claims that Art. 805 requires that
witnesses must be credible as shown in the
evidence of record.
Is the oppossitor correct? No. Under the law,
there is no mandatory requirement that the
proponent of the will prove the credibility of the
witnesses to the will. Such credibility is
presumed. However, the oppossitor may prove
otherwise by presenting evidence. The SC
also said that credibility is determined by the
manner the witness testifies in court. In other
words, credibility depends on how much the
court appreciates and believes his testimony.
Social standing or financial position has
nothing to do w/ a witness' credibility. Lastly,
the SC said that competency and credibility
are different. A witness to a will is competent if
he has all the qualifications and none of the
disqualifications to be a witness while
credibility depends on the appreciation of the
court of the testimony of the witness.
Art. 822. If the witnesses attesting the execution of
a will are competent at the time of attesting, their
becauseoming subsequently incompetent shall not
prevent the allowance of the will.
Competency or capacity to be a witness:
(1) is determined at the time of witnessing;
(2) must have the six qualifications. In effect, this is
the same rule in testamentary capacity.
Art. 823. If a person attests the execution of a will,
to whom or to whose spouse, or parent, or child,
a devise or legacy is given by such will, such
devise or legacy shall, so far only as concerns
such person, or spouse, or parent, or child of
such person, or any one claiming under such
person or spouse, or parent, or child, be void,
unless there are three other competent witnesses
to such will. However, such person so attesting
shall be admitted as a witness as if such devise or
legacy had not been made or given.
A. This is a misplaced provision. It should not be put
here but on the section on the disqualification to
inherit. It does not tell us that it incapacitates a
witness. It tells us of the incapacity of a witness to
succeed.
B. Prohibition to inherit.
1. Application covers all testamentary
instititutions and is not limited to devises and
legacies only
2. Made in favor of witnesses or specific
relatives of witness
C. Coverage
General rule: Witness, his spouse, parent, child, or
person claiming under any of them
cannot.
Exception: There are MORE than three(3)
witnesses to the will.
D. Persons Disqualified
1. Any person, his spouse, parent or children
2. Witnesses, devisee/legatee or voluntary
heirs
3. Spouse, Child of witnesses
E. Examples:
(a) Testator A, Witnesses B, C, D. It is presumed
that they are all qualified to be witnesses. A,
in a will, makes legacy to B, giving him a car.
Does it disqualify B to be a witness? No, it
disqualifies B to inherit. The legacy is void.
(b)If there were 4 witnesses. The legacy is given to
B. Is the legacy valid? Yes, because. there are
3 other witnesses.
(c)If there are four witnesses, each one is given a
devise or legacy.
(i) Are they competent to be witnesses? Yes.
(ii) Are bequests to them valid? There are 2
views:
oYES. because for each of them, there
are three other witnesses. (Liberal
view.)
oNO. because. this is an obvious
circumvention of Art. 823. Art. 823
has for its purpose the prevention of
collusion. (Strict view.)
Art. 824. A mere charge on the estate of the
testator for the payment of debts due at the time
 of the testator's death does not prevent his
creditors from being competent witnesses to his
will.
o Creditor as witness does not affect his or her
capacity as witness.
Subsection 5.—
Codicils and Incorporation by Reference.
Art. 825. A codicil is a supplement or addition to a
will, made after the execution of a will and
annexed to be taken as a part thereof, by which
any disposition made in the original will is
explained, added to, or altered.
A. Consider as a Codicil or Independent will if::
1. It explains, adds to, or alters a provision in
a prior will.
2. It is another will if it makes an
independent disposition.
E.g., June 1, 1995, "I give my car to
A."July 1, 1995,
"I give my house to B." This is a second
will.
B. Example:
o In a will, "I give my car to A, July 2, 1995."
Because. I want to specify w/c of my cars, I
make a will stating "In my will of July 2, 1995,
I gave a car to A. I want to clarify that I am
giving him my BMW w/ plate number ......."
C. Questions:
1. If original will is attested, can you make an
attested codicil?
2. If original will is attested, can you make a
holographic codicil?
3. If original will is holographic, can you make a
holographic codicil?
4. If the original will is holographic, can you make
an attested codicil?
A: Yes to all. The form of a codicil does not have to
conform to the form of the will. A will does not
impose its form on the codicil. As long as the
codicil complies w/ the form of wills, it is valid.
(Art. 826.)
Art. 826. In order that a codicil may be effective, it
shall be executed as in the case of a will.
o Whether you call the second document a will or a
codicil does not really matter. It is all theoretical. It
is only a matter of terminologies. They both
require the formal requisites of a will.
Art. 827. If a will, executed as required by this
Code, incorporates into itself by reference any
document or paper, such document or paper shall
not be considered a part of the will unless the
following requisites are present:
(1) The document or paper referred to
in the will must be in existence at the time of the
execution of the will;
(2) The will must clearly describe and
identify the same, stating among other things the
number of pages thereof;
(3) It must be identified by clear and
satisfactory proof as the document or paper
referred to therein; and
(4) It must be signed by the testator
and the witnesses on each and every page,
except in case of voluminous books of account or
inventories.
A. Requisites for Incorporation by Reference:
1. Document must pre-exist the will. It must be in
existence when the will is made. (Intrinsic)
2. The will must refer to the document, stating
among other things the number of pages of
the document. (Intrinsic)
3. The document must be identified during the
probate of the will as the document referred to
in the will. (Extrinsic)
4. It must be signed by the testator and the
witnesses on each and every page, except in
case of voluminous books of accounts or
inventories. (it may be found in )
B. Queries:
Q: What do you incorporate?
A: Generally, the documents that clarify provisions in
the will to w/c it is attached. E.g., inventories,
sketches, books of account
Q:Can a document contain any testamentary
disposition? Why?
A: NO.because they do not conform to the
requirements of wills.
Q: Can a document be incorporated in a holographic
will considering that the attached document must
be signed by witnesses and that the holographic
will has no witnesses?
A: There are 2 views.
 o YES, witnesses referred to by law should be
taken to mean only if there are witnesses to
the will. There is no specification in the law.
o NO. The fourth requisite presupposes there
were witnesses. It seems to cover only
attested wills.
Subsection 6.
Revocation of Wills and Testamentary
Dispositions.
The nature of a will is ambulatory, it may be revoked
before the death of the testator. Prior to the death of
the testator, a will is inoperative or ineffective. It is
revocable before death of the testator with or without
cause.
Art. 828. A will may be revoked by the testator at
any time before his death. Any waiver or restriction
of this right is void.
 Revocation is an act of the mind terminating the
potential capacity of the will to operate at the death
of the testator manifested by some outward or
visible act or sign, symbolic thereof. Such right to
revoke a will cannot be waived or restricted.
 Revocability is an essential requisite of a will.
There is no such thing as an irrevocable will. So
any waiver or restriction or provision contrary of
this right even by the testator is void.
 Q: Can the testator make a will irrevocable?
A: No. As long as he is alive, he can revoke his
will at pleasure. Distinguish this from a donation
inter vivos w/c cannot be revoked at pleasure by
the donor.
Art. 829. A revocation done outside the
Philippines, by a person who does not have his
domicile in this country, is valid when it is done
according to the law of the place where the will
was made, or according to the law of the place in
which the testator had his domicile at the time; and
if the revocation takes place in this country, when
it is in accordance with the provisions of this
Code.
 This article follows the domiciliary theory rather
than the national theory.
 This answers 2 questions:
1. How do you revoke?
2. What law governs revocation?
 Rules for revocation:
1. If done outside the Philippines:
a. If the testator is not domiciled in the
Philippines:
(i) the law of the place where the will was
made
(ii) the law of the place where the testator was
domiciled at the time of the revocation
b. If the testator is domiciled in the Philippines:
(i) Phil. law because his domicile is here.
(ii) Law of the place of revocation because of
Art. 17, NCC
2. If done inside the Philippines, follow Philippine
law.
Art. 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of revoking
it, by the testator himself, or by some other person
in his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some
other person, without the express direction of the
testator, the will may still be established, and the
estate distributed in accordance therewith, if its
contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or
obliteration are established according to the Rules
of Court.
A. Three General Modes of Revoking a Will:
1. By Operation of Law
2. By subsequent will or codicil
3. Physical destruction
B. By Operation of Law.
 Certain acts or events take place after a will has
been made, rendering void or useless wither the
whole or certain testamentary dispositions
therein.
 By circumstance not specially mentioned in the
law
 Reason for allowing revocation by implication of
law: there may be certain changes in the family
or domestic relations or in the status of his
property such that the law presumes a change of
mind on the part of the testator.
 New duties and obligations have accrued to the
testator subsequent to date of the will.
 Examples:
a. Art. 1032-- Unworthiness to succeed, e.g.,
I instituted P as heiress, after which she
killed my parents. The will instituting her
as heiress is revoked by implication of law.
Art. 1032. The following are incapable of
succeeding by reason of unworthiness:
(1) Parents who have abandoned their children
or induced their daughters to lead a
corrupt or immoral life, or attempted
against their virtue;
(2) Any person who has been convicted of an
attempt against the life of the testator, his
or her spouse, descendants, or
ascendants;
(3) Any person who has accused the testator of
a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge
of the violent death of the testator, should
fail to report it to an officer of the law
within a month, unless the authorities have
already taken action; this prohibition shall
not apply to cases wherein, according to
law, there is no obligation to make an
accusation;
(5) Any person convicted of adultery or
concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
change one already made;
(7) Any person who by the same means
prevents another from making a will, or
from revoking one already made, or who
supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a
supposed will of the decedent. (756, 673,
674a)
C. By physical Destruction
b. Art. 957-- Deals w/ the devise or legacy.--
transformation of the property by the
testator, e.g., If I converted to a
subdivision the fishpond w/c I gave to T as
devise.
Art. 957. The legacy or devise shall be without
effect:
(1) If the testator transforms the thing
bequeathed in such a manner that it does
not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause
alienates the thing bequeathed or any part
thereof, it being understood that in the
latter case the legacy or devise shall be
without effect only with respect to the part
thus alienated. If after the alienation the
thing should again belong to the testator,
even if it be by reason of nullity of the
contract, the legacy or devise shall not
thereafter be valid, unless the reacquisition
shall have been effected by virtue of the
exercise of the right of repurchase;
(3) If the thing bequeathed is totally lost
during the lifetime of the testator, or after
his death without the heir's fault.
Nevertheless, the person obliged to pay the
legacy or devise shall be liable for eviction
if the thing bequeathed should not have
been determinate as to its kind, in
accordance with the provisions of Article
928. (869a)
c. Art. 63— Legal separation. The guilty
spouse, who gave the ground for legal
separation, will not inherit and anything
given to her is impliedly taken away by law
Art. 63. The decree of legal separation shall
have the following effects: x x x
(4) The offending spouse shall be disqualified
from inheriting from the innocent spouse
by intestate succession. Moreover,
provisions in favor of the offending spouse
made in the will of the innocent spouse
shall be revoked by operation of law.
d. Art. 854-- Preterition annuls the institution
of heirs.
Preterition is the total omission of the
compulsory heirs in the inheritance of a
person.
e. Art 935 and 936. When a credit that had
been given as a legacy is judicially
demanded by the testator.
 4 acts covered under this:
a. Burning
b. Tearing
c. Cancelling
 d. Obliterating
 Elements:
a. Testamentary Capacity or the capacity to
revoke at the time of revoking the will
b. Act of destruction with the intention of
revoking the will
c. Actual physical act of destruction or there
must be a completion at least of the
subjective phase of the overt act.
d. Performed by the testator himself or by
some other person in his presence and by
his express direction
 2 elements for a valid revocation
a. Corpus-- Act of destruction-- completion of
intent-- all acts needed to revoke have been
done.
b. Animus.-- Intent and capacity to revoke.
Both elements must concur.
MALOTO v. CA.-- In the case, the estate was
distributed equally by intestacy between the 4
heirs. Subsequently, a will was found. In the
will, more was given to 2 of the heirs. As such,
the 2 who got more sought the probate of the
will. The other 2 objected claiming that the will
had been revoked. The issue is whether or not
there had been a valid revocation. The SC
held no. Neither, destruction without intention
nor intention without destruction will revoke his
will.
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 last will and testament. 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 and 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, Guadalupe, was not satisfactorily
established to be a will at all, much less the
will of Adriana Maloto. For another, the burning
was not proven to have been done under the
express direction of Adriana. And then, the
burning was not in her presence. Both
witnesses, Guadalupe and Eladio, 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
proferred as a will were burned.
 Examples:
a. A blind testator asked his nurse to give him his
will. The nurse gave him his old letters. The
testator thinking it is his will, threw it into the
fire. In this case, there is animus but no
corpus. Revocation is ineffective.
b. I threw my civil law exams. But it turned out it
was my will. Revocation is not valid. There
is no animus or intent to revoke.
GAGO v MAMUYAC.-- With reference to the said
cancellation, it may be stated that there is
positive proof, not denied, which was accepted
by the lower court, that the will in question had
been cancelled in 1920. The law does not
require any evidence of the revocation or
cancellation of a will to be preserved. It
therefore becomes difficult at times to prove
the revocation or cancellation of wills. The fact
that such cancellation or revocation has taken
place must either remain unproved or be
inferred from evidence showing that after due
search the original will cannot be found.
Where a will which cannot be found is shown
to have been in the possession of the testator,
when last seen, the presumption is, in the
absence of other competent evidence, that the
same was cancelled or destroyed. The same
presumption arises where it is shown that the
testator had ready access to the will and it
cannot be found after his death. 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. The rationale is
that it is hard to prove the act of revocation of
the testator.
 Q: What if the will was not last found in the
possession of the testator? Will there be the
same presumption?
A: The case does not say so. But by analogy,
YES. The SC, however, had not gone this far.
 To summarized:
1. Burning, It is sufficient even if a small part of
the instrument itself be burned even though
the entire writing itself be left untouched.
 2. Tearing off even the signature alone
constitutes revocation provided the other
requisites are present. This is because the
signature goes to the very heart of the will.
a. “Tearing” includes “cutting.’’ A clause
may be revoked by “cutting” same from
the will.
b. Slight tear is sufficient.
c. The mere act of “crumpling” or the
removal of the “fastener” binding the
pages of a will does NOT constitute a
revocation, even though there be animo
revocandi.
- The reason is that “crumpling” is not
one of the overt acts provided for by
the law.
- EXCEPT, in the case of Roxas v.
Roxas, the court impliedly allowed
“crumpling’’ as one of the overt acts,
provided there is animo revocandi.
d. If one disposition is revoked, the rest of
the will remains valid UNLESS the
others could not be given effect without
if that one disposition is revoked.
3. Cancelling is the drawing of lines across a
text, but the words remain legible.
a. Cancellation of the signature of
witnesses to a holographic will leaves
the will valid, since no witnesses are
after all required.].
4. Obliterating renders the word illegible.
a. Either of the two revokes a will, totally or
partially.
b. If all parts are cancelled or obliterated,
or if the signature is cancelled or
obliterated, the whole will is revoked, the
reason in the case of the signature being
that the act strikes at the existence of
the whole instrument.
c. Cancellation or obliteration of non-vital
part leaves the other parts in force.
 Queries:
Q: How much destruction of the corpus do you
need?
A: You need the physical destruction of the will
itself.
Q: Does it mean total destruction of the will, so
that nothing will be left?
A: No. As long as there is evidence of physical
destruction, like let us say, edges were burned. If
the destruction was not total, there is still
revocation, as long as there is/ was evidence of
the destruction of the will, the destruction need
not be total.
Q: Must it be total destruction?
A: No. As long as evidence on the face of the
will shows act to revoke.
 PRINCIPLE OF INSTANTER-- revocation is
instant if the destruction was completely made,
even though the testator subsequently changed
his mind and provided that at the time of the
performance of the overt act, the testator must
have had the intent to revoke the will. Otherwise
stated, the revocatory clause of the second will
took effect immediately or at the instant the
revoking will was made.
 Examples:
a. If the testator tore the will into 2, and when
he was about to tear it into quarters, the heir
asked for his forgiveness. The testator said:
"Just paste the will." Is there revocation?
None. There is no animus because he was
not able to complete what he intended to do.
b. If the testator totally destroyed the will and
he changed his mind, is there revocation?
Yes. The act was already consummated. His
remedy is to execute another will.
 DOCTRINE OF DEPENDENT RELATIVE
REVOCATION or “Conditional Revocation”
o If the testator revokes a will with a present
intention of making a new testamentary
disposition as a substitute for the old and the
new will is not made or if made, fails to
comply with provisions of law for any reason
it will be presumed that the testator meant
the revocation of the old to depend upon the
efficacy of the new disposition intended to
be substituted, the revocation will be
conditional and dependent upon the efficacy
of the new disposition; and if, for any reason,
the new will intended to be made as a
substitute is inoperative, the revocation fails
and the original will remains in full force."
o so long as the revoked will was only revoked
with the intention of a new document taking
its place, which for whatever reason fails to
materialize, the doctrine will allow the revival
of the revoked will and treat it as if nothing
ever happened to it.
o OBITER: the doctrine also applies to
physical destruction.
D. By Subsequent Instrument, Will or Codicil:
 Elements:
1. Capacity to revoke.-- Insane persons cannot
revoke
 2. Revoking instrument, will or codicil must be
valid
3. Revoking instrument, will or codicil must
contain either a revoking clause (express) or
be incompatible (implied)
4. Revoking will must be probated because. w/o
probating, it cannot have the effect of
revocation.
 Such revocation may either be:
1. Express.-- Contains an express revocatory
clause
2. Implied.-- Provisions of subsequent will are
incompatible with the provisions of the prior
will. It may either be:
a. Total when all the provisions are
incompatible;
b. Partial when only some provisions are
incompatible.
Art. 831. Subsequent wills which do not revoke the
previous ones in an express manner, annul only
such dispositions in the prior wills as are
inconsistent with or contrary to those contained in
the latter wills.
 GR: 2 or more instrument each purporting to be a
will may be admitted to probate if they are not
inconsistent with each other
 EXP: there are irreconcilable inconsistencies.
Art. 832. A revocation made in a subsequent will
shall take effect, even if the new will should
become inoperative by reason of the incapacity of
the heirs, devisees or legatees designated therein,
or by their renunciation.
A. Distinguish between Invalid and Valid but
ineffective wills
 Invalid wills are always ineffective hence an
invalid revoking will cannot revoke
 Valid but ineffective revoking will can revoke
B. The efficacy of the revocatory clause does not
depend on the testamentary dispositions
 GR: Doctrine of Absolute Revocation or
Instanter.-- The revocation of a prior will by
means of a subsequent will is absolute. Such
revocation does not depend on:
a. Capacity of heirs, devisees, and
legatees in the 2nd will; or
b. On their acceptance or renunciation of
beneficiaries
o The revocation will be operative even the
heirs, devisees, or legatees named in the
revoking will are disqualified or they
renounce
o E.g., Will 1.-- "I give my house and lot
to A." (1995)
Will 2.-- "I give my house to B and
hereby revoke my first will." (1997)
 Q: Suppose, upon the testator’s death, B
renounces or is incapacitated, what is the
effect?
A: The institution of A is still revoked. House
and lot will go by intestacy. The first will not be
revived by the reason of the inoperation of the
revoking will due to its renunciation or the
incapacity of heirs, devisees, or legatees in it.
The rationale is that the second will was valid
except that it was rendered inoperative.
 EXP: Doctrine of Dependent Relative
Revocation.-- Revocation of the first will is
made by the testator to be dependent on the
capacity and acceptance of the heirs, devisees,
and legatees of the subsequent will.
o Q: How do you know?
A: The testator said so in the will.
o E.g., Will 1. -- "I give my car to A." (1995)
Will 2. -- "I give my car to B. Such
legacy is dependent upon the capacity and
acceptance of B." (1997)
 The institution of B is conditional.
 This is a case of Substitution where
o Primary institution-- B;
o Secondary institution-- A.
MOLO v MOLO-- 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
section 618 of the Code of Civil Procedure as
to the making of wills, cannot produce the
effect of annuling the previous will, inasmuch
as said revocatory clause is void
Obiter: Even in the supposition that the destruction of
the original will by the testator could be
presumed from the failure of the petitioner to
produce it in court, such destruction cannot
have the effect of defeating the prior will where
it is founded on the mistaken belief that the
later will has been validly executed and would
be given due effect. The earlier will can still be
admitted to probate under the principle of
"dependent relative revocation". The theory on
which this principle is predicated is that the
testator did not intend to die intestate. And this
 intention is clearly manifest where he executed
two wills on two different occasions and
instituted his wife as his universal heir. There
can therefore be no mistake as to his intention
of dying testate.
Physical destruction of the will did not revoke it
on the inference that the testator meant the
revocation depend on the validity of the new
one.
Apart from the fact that the statement is obiter
(the facts did not clearly show that the will had
been destroyed), it is arguable whether the
prior will should be deemed to subsist despite
its physical destruction. Can it not be argued
that the act of the testator in destroying the will
in fact confirmed his intent to revoke it? Was
the Supreme Court not drawing too remote an
inference?
DIAZ v DE LEON— According to the statute governing
the subject in this jurisdiction the destruction
animo revocandi of a will constitutes, in itself, a
sufficient revocation. (Sec. 623, Code of Civil
Procedure.) The original will herein presented
for probate having been destroyed animo
revocandi, cannot be declared the will and last
testament of the testator.
The intention of revoking the will is manifest
from the established fact that the testator was
anxious to withdraw or change the provisions
he had made in his first will. This fact is
disclosed by the testator's own statements to
the witnesses Canto and the Mother Superior of
the Hospital where he was confined.
Art. 833. A revocation of a will based on a false
cause or an illegal cause is null and void.
 Q: Is this article violative of the right to revoke,
even without reason?
A: No. The testator need not have a reason to
revoke his will. He may revoke it capriciously or
whimsically at pleasure. The will is premised on
the generosity of the testator.
 Rationale: If the revocation is due to mistake or is
based on some cause and such cause was later
proven to be false, then the revocation is void
because all transactions based on mistake are
vitiated, that is, you are acting on a false cause of
facts. The cause, however, must be stated in the
will. This shows respect for the freedom of the
testator to revoke, that his real intent be followed.
 Elements for Revocation to be Inoperative:
a. Cause must be a concrete and a factual one
(not purely subjective or an impression);
b. Cause must be false;
c. Testator must not know of its falsity;
d. It appears on the face of the will that the
testator is revoking because of the false
cause.
 Applies only to revocation by subsequent will or
codicil because only by that the cause may appear
or stated clearly.
 Example
a. Based on fact (kind of dependent relative
revocation because he would revoke only if his
information is true)
— I instituted C as my heir. Later, I heard that
it was C who killed my brother in Davao. So, I
revoked my will. But it turned out that C did not
do it. Revocation therefore is void.
b. Based on impression
-- I give my car to B who is from Manila. I
revoke my designation of B because I have
just found out that she is from Quezon and I
hate people from Quezon because they are
arrogant and obnoxious. Is the revocation
valid? -- Yes. Because the revocation is based
on impression or is out of caprice, prejudice, or
unfounded ethnic opinion.
Art. 834. The recognition of an illegitimate child
does not lose its legal effect, even though the will
wherein it was made should be revoked.
 One of the modes of recognition was by a will.
Even if the will is revoked, recognition is valid.
 Recognition is irrevocable because it is not a
testamentary act but an act w/c under the law
admits a relationship of paternity.
 The same rule is still applicable under the FC.
Subsection 7.—
Republication and Revival of Wills
 Republication is a method by which the testator
restores to validity as his will an instrument
formerly executed by him as his will which was
originally invalid for want of proper execution. It is
an act of the testator.
 This may be made by:
a. Express republication or re-execution or
republication by reproduction-- a will which
is void as to form can only be republished
through re-execution, which means that the
whole document must be re-written. (Art. 835)
 b. Implied republication or republication by
reference— A will which is valid as to form,
but void as to other aspects, may be
republished by the execution of a codicil which
contains a sufficient reference to the previous
will.(Art. 836)
Art. 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its
form.
 Art. 835 is derived from Argentine Code. If you
want to revive a will w/c is void as to its form or
extrinsically invalid, you must republish the will.
 Art. 835 explicitly refers to wills void as to form
because the nullity is the defect in the form. You
must reproduce the dispositions in a subsequent
will.
 Example: Attested will w/ just 2 witnesses. You
discovered the mistake later on. You cannot just
republish it. You have to write it all over again.
 Effectivity is on the date of subsequent will and not
on the date of original will because this affects the
after acquired properties.
Art. 836. The execution of a codicil referring to a
previous will has the effect of republishing the will
as modified by the codicil.
 Art. 836 is derived from the California code. The
mere reference to a previous will results to its
revival. It applies if the original will is valid but
revoked.
 Example: "I hereby republish and revive my will of
Oct. 15, 1995..."
 Effects:
a. Codicil revives the previous will
b. The old will is republished as of the date of the
codicil.
c. A will republished by a codicil is governed by
the statute enacted subsequent to the
execution of the will, but which was operative
when the codicil was executed.
Art. 837. If after making a will, the testator makes a
second will expressly revoking the first, the
revocation of the second will does not revive the
first will, which can be revived only by another will
or codicil.
 Revival is the restoration or reestablishment of
revoked will or revoked provisions thereof, to
effectiveness, by virtue of legal provisions. It is one
that takes place by operation of law.
 Situation:
o X makes a will in 1993 (Will 1).
o X makes a will (Will 2) in 1994 expressly
revoking Will 1.
o X makes a will (Will 3) in 1995 revoking Will
2.
 GR: Instant revocation or Principle of Instanter
o Will 1 is not revived because its revocation
was instant.
EXP:
o Will 3 expressly revives Will 1.
o Will 3 reproduces provisions of Will 1
 Applies only when revocation of will 1 by will 2 is
express.
 Revival applies only to revocation by implication.
 By contrary implication, if revocation of will 1 by
will 2 is implied, then revocation of will 2 by will 3
will revive will 1
o EXP: If Will 3 is incompatible with Will 1. In
such cases, Art. 837 does not apply.
Section 2.—
Institution of Heir.
Fundamental basis of TS is the doctrine that the will of
the testator freely expressed in his last will and
testament as a general rule the supreme law which
governs succession. To have effect, it must be
manifested in a manner which is clear and precise.
Art. 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
and transmissible rights and obligations.

 Requisites:
1. The will must be extrinsically valid
2. The will must be intrinsically valid
3. The institution must be effective
 The rules on institution of heir also apply to
devisees and legatees.
Art. 841. A will shall be valid even though it should
not contain an institution of an heir, or such
institution should not comprise the entire estate,
and even though the person so instituted should
not accept the inheritance or should be
incapacitated to succeed.
In such cases the testamentary
dispositions made in accordance with law shall be
complied with and the remainder of the estate shall
pass to the legal heirs.
 GR: If the will does not institute an heir, it need not
be probated.
 EXP: if any of the following are present:
a. When the will recognizes an illegitimate
child;
b. When it disinherits a compulsory heir;
c. When it instituted an executor.
 Even if there is no institution, the will is valid, but it
is useless unless it acknowledges an illegitimate
child or disinherits a compulsory heir or appoints
an executor.
 If the institution does not cover the entire estate,
the excess shall either go to the compulsory heirs
or by intestacy. (Mixed succession.)
 If the instituted heir should repudiate or be
incapacitated to inherit, then legal succession
takes place.
Art. 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of it in
favor of any person having capacity to succeed.
One who has compulsory heirs may
dispose of his estate provided he does not
contravene the provisions of this Code with regard
to the legitime of said heirs.
 1st par—freedom of disposition is absolute.
2nd par—limitation as to legitime.
 No Compulsory Heirs:
1. Give to any qualified
2. Respect the restriction imposed by special
law i.e., CARP 5 years and Homestead
Patent 10years
 If there is a compulsory heir:
1. Respect legitimes UNLESS there is valid
inheritance.
2. Dispose of the free portion.
Art. 843. The testator shall designate the heir by
his name and surname, and when there are two
persons having the same names, he shall indicate
some circumstance by which the instituted heir
may be known.
Even though the testator may have omitted
the name of the heir, should he designate him in
such manner that there can be no doubt as to who
has been instituted, the institution shall be valid.
 GR:
o An heir must be designated by name and
surname. This also applies to devisees and
legatees.
o If there are 2 or more people having the same
name and surname, the testator must
indicate some identifying mark or
circumstance to which he may be known,
otherwise there may be a latent ambiguity.
o E.g., I institute my cousin A. But I have 3
cousins by the name of A. Unless I give an
identifying mark or circumstance as to w/c
cousin A I refer to, there will be a latent
ambiguity.
 EXP: Even w/o giving the name, the identity of the
heir can be ascertained w/ sufficient certainty or
clarity,
o e.g. the present Dean of the USA College of
Law, oldest brother.
 What is important is that the identity of the heir be
known and not necessarily his name.
Art. 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the
institution when it is possible, in any other manner,
to know with certainty the person instituted.
If among persons having the same names
and 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.
 1st par.-- Even though there may be an error in the
name of the heir, the error is immaterial if his
identity can be known in any other manner.
 2nd par.-- Rules on latent ambiguity.
1. Use extrinsic evidence except the oral
declarations of the testator as to his intentions
to cure the ambiguity.
 2. If ambiguity still exists, none of them will
inherit.
Art. 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.
 Can the testator give his entire free portion to a
person he does not personally know? Yes.
 The "unknown person" referred to in this article
refers to one who cannot be identified and not to
one whom the testator does not personally know.
The basis of the nullity is the inability to determine
the intention of the testator.
 Examples: (Void)
o "To someone who cares." -- Void.
o "To someone w/ ten eyes." -- Void, this refers
to someone who does not exist.
o Some faculty
o Certain Bar topnotcher.
 The designation is valid if the identity is not known
at the time of making the will as long as it is
possible to ascertain the identity of the designated
heir, devisee or legatee, either by a past, present
or future event or by establishing certain criteria at
the proper time,
o First Filipino who wins a gold medal in the
Olympics.
 Class designation or mass institution is valid.
o Class in Civil Law Review, UP College of Law,
1995-1996.
o Special designation:
- Article 786 (distribution entrusted to 3 rd
person),
- Article 848 (brothers and sisters),
- Article 849 (designation of a person and
his children)
- Article 959 (relatives),
- Article 1029 (prayers and pious works for
the benefit of his soul)
- Article 1030 (poor)
Art. 846. Heirs instituted without designation of
shares shall inherit in equal parts.
 Principle of Equality. This is a presumption of
equality. Hence unequal apportionment must be
stated in the will. This supports the underlying
principle of this chapter w/c is respect for the
wishes of the testator.
 This cannot be applied absolutely in case one of
the instituted heirs is a compulsory heir since
institution in general refers merely to the free
portion. Hence, the legitime must first be removed
and what remains will be divided equally.
o Compulsory—legitime provided by law
o Voluntary—Instituted based on the will
o Intestacy—instituted based on the will
Art. 847. When the testator institutes some heirs
individually and others collectively as when he
says, "I designate as my heirs A and B, and the
children of C," those collectively designated shall
be considered as individually instituted, unless it
clearly appears that the intention of the testator
was otherwise.
 Principle of Individuality
 Problem: The testator provides "I give 1/3 of my
estate to A, B and C." C is a class of people. How
do you divide the estate?
A: It is not to be interpreted as 1/3 to A, B and
class C. Rather, the 1/3 of the estate should be
divided equally among A, B and the members of
class C. Because the presumption is that the
members of C were individually designated.
 But if the testator says "I give 1/3 of my estate to
A, B and class C as a unit, then 1/3 will be divided
equally among A, B and class C.
Art. 848. If the testator should institute his brothers
and sisters, and he has some of full blood and
others of half blood, the inheritance shall be
distributed equally, unless a different intention
appears.
 Full blood means same parents; half-blood means
only one parent is the same.
 GR: Brothers and sisters, whether full or half
blood, inherit in equal shares.
EXP:
(a) If the testator provides otherwise in the will.
(b) If they inherit by intestacy. Ratio is 2:1 in
favor of full blood brothers and sisters. (Art.
1006.)
Art. 849. When the testator calls to the succession
a person and his children, they are all deemed to
have been instituted simultaneously and not
successively.
 Principle of Simultaneity-- This article is a
species of Art. 847.
 “Deemed” here means presumed, hence, if a
contrary intention is present (that is, to institute
them successively), said intention must prevail, for
the testator’s will, if not illegal, must be followed.
Art. 850. The statement of a false cause for the
institution of an heir shall be considered as not
written, unless it appears from the will that the
testator would not have made such institution if he
had known the falsity of such cause.
 False cause is the istake which vitiates the
intelligence of the testator.
 GR: Even if the cause if false, institution is
effective. Because of the institution is the liberality
of the testator and not the cause stated.
 EXP: It appears that the testator would not have
made such if he had known of the falsity of the
cause.
 Q: "A is the tallest in the class. I give him 1/2 of my
estate." If A is not the tallest, is the institution
ineffective?
A: No. Follow the general rule because the real
cause was not the height but the liberality of the
testator.
AUSTRIA v. REYES.-- In the case, the oppossitor
sought to nullify the institution of the adopted
children as heirs because. it was found out
that the adoption did not comply w/ the law.
The SC held that the institution was valid. For
it to be invalid, and be an exception to the
general rule, 3 requisites must concur:
1. Cause for the institution must be stated in
the will;
2. Cause must be shown to be false;
3. It must appear on the face of the will that
the testator would not have made such
institution if he had known the falsity of the
cause.
The wishes of the testator must be respected.
In the case, the third requisite was absent. As
such, the exception was not applicable and the
general rule would apply.
If there is doubt as to whether there is a valid
institution because of the false cause, resolve
it in favor of validity.
Art. 851. If the testator has instituted only one heir,
and the institution is limited to an aliquot part of
the inheritance, legal succession takes place with
respect to the remainder of the estate.
The same rule applies, if the testator has
instituted several heirs each being limited to an
aliquot part, and all the parts do not cover the
whole inheritance.
 The principle enunciated here has already been
provided in Art. 841. However here there is a clear
intention not to distribute the whole estate.
 Assuming that:
a. The testator has no compulsory heirs -- part of
the whole estate not disposed of by will goes
by intestacy.
o E.g., No compulsory heirs and the testator
says "I give 1/3 of my estate to X." 1/3 will
go to X and the 2/3 will go by intestacy.
b. Testator has compulsory heirs-- part of the free
portion not disposed of by will goes by
intestacy.
o E.g., Two legitimate children and testator
says "I give 1/4 of my estate to X." 1/2
will go to the 2 children, 1/4 will go to X,
and 1/4 will go by intestacy.
Art. 852. If it was the intention of the testator that
the instituted heirs should become sole heirs to
the whole estate, or the whole free portion, as the
case may be, and each of them has been instituted
to an aliquot part of the inheritance and their
aliquot parts together do not cover the whole
inheritance, or the whole free portion, each part
shall be increased proportionally.
 This article speaks of the testator's intention to
give the entire free portion, or the entire
inheritance, as the case may be, but he made a
mistake in the addition of the different proportions.
 Elements:
1. Several heirs;
2. Indicates his intention to give his entire estate
to these heirs.
a. If no compulsory heirs, whole estate
b. If w/ compulsory heirs, whole free portion
3. Indicates portions he wants to give to each;
and
4. Total of portions is less than whole estate or
free portion, as the case may be.
 ISRAI
o Institution
o Substitution
o Representation
o Accretion
o Intestacy
 Example: Testator has no compulsory heirs. He 3. Indicates portions he wants to give to each;
indicates in the will that his intention to give his and
entire estate to his heirs. He gives 1/4 to A, 1/6 to 4. Total of portion exceeds the whole estate, or
B, 1/3 to C. The estate is worth P120,000. whole free portion, as the case may be

II= A P30,000  Example: A gets 1/2, B gets 1/3, and C gets 1/4.
The value of the estate is P30,000.
B 20,000

C 40,000
A P15,000
SI = P90,000
B 10,000
What do you do with the remaining P30,000?
C 7,500
NE
S= (II ) ; P32,500
SI
NE= Net Estate What do you do w/ the excess of P2,500?

SI = Sum of Institutions Reduced share of A:

ID = Individual Institution 30000

13846.15= (15000)
32500
S = Share (?)
Reduced share of B:

30000
Increased share of A: 9230.77= (10000)
32500
120000
40,000= (30000) Reduced share of C:
90000
30000
Increased share of B: 6923.08= (7500)
32500
120000
26,667= (20000)
90000
Art. 854. The preterition or omission of one, some,
Increased share of C: or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the
120000 will or born after the death of the testator, shall
53,333= (40000)
90000 annul the institution of heir; but the devisees and
legacies shall be valid insofar as they are not
inofficious

Art. 853. If each of the instituted heirs has been
given an aliquot part of the inheritance, and the
parts together exceed the whole inheritance, or the
whole free portion, as the case may be, each part
shall be reduced proportionally.
 The same principle as in Art. 852, only this time
you decrease.
 Elements:
1. Several heirs;
2. Indicates his intention to give his entire estate
to these heirs.
a. If no compulsory heirs, whole estate
If the omitted compulsory heirs should die
before the testator, the institution shall be
effectual, without prejudice to the right to
representation.
 Preterition
o "praeter" means "to go beyond"
o Pretermission is the omission, whether
intentional or not, voluntary or involuntary, of a
compulsory heir in the inheritance of a person
o It happens when the compulsory heirs in the
direct line are totally omitted from the
inheritance, that is the heir got nothing by way
of testamentary disposition, donation, legacy,
devise or intestacy.

b. If w/ compulsory heirs, whole free portion

NERI v AKUTIN-- it referred to a will where "the
testator left all his property by universal title to
the children by his second marriage, and (that)
without expressly disinheriting the children by
his first marriage, he left nothing to them or, at
least, some of them.
Preterition, generally speaking, is due merely
to mistake or inadvertence without which the
testator may be presumed to treat alike all his
children. And specifically is this true in the
instant case where the testator omitted the
children by his first marriage upon the
erroneous belief that he had given them
already more shares in his property than those
given to the children by his second marriage.
 Requisites
1. Compulsory heir must be in the direct line
2. Complete and Total omission (nothing is
given inter vivos or after death)
3. Compulsory heir must survive the testator.
 Who is a person preterited?
Manresa.-- "Complete omission from the will"
-- Wrong! Why? It presupposes that if
mentioned in the will, then the heir is not
preterited. However, whether you are
mentioned in the will or not has no effect on
the preterition.
 Illustrations:
(1) I have a son, A. The will states "I give 1/2 to
B." A is not preterited because he gets the
other half.
(2) I have a son, A. The will states "I give 1/3 to
B and 1/3 to C." A is not preterited because
he gets the other 1/3. However, his legitime
is impaired.
(3) I have a son, A. The will states "I give 1/2 to
B, 1/2 to C, and to A, all my love." A, even if
mentioned in the will, was preterited.
LAJOM v LEUTERIO—the will having completely
omitted the plaintiff who is a compulsory heir,
and having disposed of all the properties in
favor of the defendants, it naturally
encroached upon the legitime of the plaintiff.
Such testamentary dispositions may not impair
the legitime. In another sense, the plaintiff,
being a compulsory heir in the direct line, and
having been preterited, the institution is
annulled in its entirety.
ESCUIN v ESCUIN—If a natural father dies under a
duly executed will, his recognized natural son
who survives him, being his general heir, is
only entitled to one-third of his estate, which
amount constitutes his legal portion, but, if the
natural father dies intestate, his natural
recognized son is entitled to the entire estate.
the natural father has the right to freely
dispose by will of two-thirds of his estate, and
in his estate, and in case he exceeds this right
by disposing of the legal portion pertaining yo
his natural recognized son, or by overlooking
the right of the latter under the will, the
designation of heirs or the testamentary
provision relative to the legal portion of the
general heir, shall be held void; nevertheless,
the other testamentary provisions referring to
to legacies and gifts shall be considered valid,
in so far as they are not illegal and do not
impair the legal portion of the recognized
natural son, who is the general heir of the
testator.
REYES v BARRETO-DATU.-- In the case, Lucia
received a part of the estate through a
judicially approved project of partition w/c was
based on the will of her father. However, it was
found out later on that he Salud was not really
the child of her parents. As such, Lucia sought
to annul the institution of Salud as heir
claiming that she was preterited. The SC held
that she was not preterited because she had
received a part of the estate. There is no
preterition if the heir is given testamentary
disposition, even if it be less than her legitime.
The remedy of the heir is for the completion of
her legitime pursuant to Art. 906.
AZNAR v DUNCAN-- On the other hand, appellant
contends that this is not a case of preterition,
but is governed by Article 906 of the Civil
Code, which says: “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.”
Appellant also suggests that considering the
provisions of the will whereby the testator
expressly denied his relationship with Helen
Garcia, but left to her a legacy nevertheless,
although less than the amount of her legitime,
she was in effect defectively disinherited within
the meaning of Article 918.
Right of compulsory heir, to whom testator left
property less than his legitime to completion of
legitime even if he is not referred to in will as
heir.—In order that the right of a forced heir
may be limited to the completion of his legitime
(instead of the annulment of the institution of
heirs) it is not necessary that what has been
left to him in the will “by any title,” as by legacy,
be granted to him in his capacity as heir. As
successional rights are vested as of the
moment of death, the forced heir is entitled to
the fruits and increments of his legitime from
the testator’s death.
SEANGIO v REYES— With regard to the issue on
preterition, the Court believes that the
compulsory heirs in the direct line were not
preterited in the will. It was, in the Court’s
opinion, Segundo’s last expression to
bequeath his estate to all his compulsory
heirs, with the sole exception of Alfredo. Also,
Segundo did not institute an heir to the
exclusion of his other compulsory heirs. The
mere mention of the name of one of the
petitioners, Virginia, in the document did not
operate to institute her as the universal heir.
Her name was included plainly as a witness to
the altercation between Segundo and his son,
Alfredo.
HRS OF POLICRONIO URETA v HRS OF LIBERTO
URETA-- Their posited theory on preterition is
no longer viable. It has already been
determined that the Heirs of Policronio gave
their consent to the Deed of Extra-Judicial
Partition and they have not been excluded
from it. Nonetheless, even granting that the
Heirs of Policronio were denied their lawful
participation in the partition, the argument of
the Heirs of Alfonso would still fail.
Preterition has been defined as the total
omission of a compulsory heir from the
inheritance. It consists in the silence of the
testator with regard to a compulsory heir,
omitting him in the testament, either by not
mentioning him at all, or by not giving him
anything in the hereditary property but without
expressly disinheriting him, even if he is
mentioned in the will in the latter case.
Preterition is thus a concept of testamentary
succession and requires a will. In the case at
bench, there is no will involved. Therefore,
preterition cannot apply.
SOLANO v. CA.-- SOLANO, a resident of Albay,
BALANAY v MARTINEZ-- Preterition of surviving
spouse who conformed thereto does not
produce intestacy.—In the instant case, the
preterited heir was the surviving spouse. His
preterition did not produce intestacy. Moreover,
he signified his conformity to his wife’s will and
renounced his hereditary rights.
Insofar as the widow is concerned, Article 854
of the Civil Code may not apply as she does
not ascend or descend from the testator,
although she is a compulsory heir. Stated
otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if
she is omitted from the inheritance, for she is
not in the direct line
NUGUID v NUGUID.-- In the case, Rosa died having 6
brothers and sisters and her parents.
However, she instituted one of her sisters as
her universal heir. The parents opposed the
probate claiming they were preterited. The SC
held that the parents were preterited. As such,
the institution of the sister as universal heir is
void. The estate will be distributed by
intestacy. The SC further stated that just
because you are an heir, but not a compulsory
heir, it does not mean that you will receive
anything. If compulsory heirs in the direct line
are preterited, and the free portion had already
been devised to other people, the annulment
of the institution of heir will in effect annul your
institution. Also, when the law says devise or
legacy, this is used in its ordinary sense. The
claim of the sister that her institution as a
universal heir is equivalent to a devise is
untenable. If such were accepted, it would
render Art. 854 useless.
Effects flowing from preterition --. Preterition
under Article 854 of the New Civil Code “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. Where the one sentence
will institutes the petitioner as the sole,
universal heir and preterits the parents of the
testatrix, and it contains no specific legacies or
bequests, such universal institution of
petitioner, by itself, is void. And intestate
succession ensues. Legacies and devises
merit consideration only when they are so
expressly given as such in a will. Nothing in
Article 854 of the New Civil Code suggests
that the mere institution of a universal heir in a
will—void because of preterition—would give
the heir so instituted a share in the inheritance.
As to him, the will is inexistent. There must be,
in addition to such institution, a testamentary
disposition granting him bequests or legacies
apart and separate from the nullified institution
of heir.
married Pilar Riosa. The latter died. He met a
French woman, Lilly Gorand, who became his
second wife in 1928. The union was short-lived
as she left him in 1929. In the early part of
1930, SOLANO started having amorous
relations with Juana Garcia, out of which affair
was born Bienvenido Garcia on March 24,
1931 and on November 3, 1935, Emeteria
Garcia was born. Their birth certificates and
baptismal certificates mention only the
mother's name without the father's name. The
facts establish, however, that SOLANO during
his lifetime recognized the GARCIAS as his
children by acts of support and provisions for
their education.
However, contrary to the conclusions of the
Courts below, holding that the entire Will is
void and intestacy ensues, the preterition of
the GARCIAS should annul the institution of
ZONIA as heir only insofar as the legitime of
the omitted heirs is impaired. The Will,
therefore, is valid subject to that limitation. It is
 plain that the intention of the testator was to
favor ZONIA with certain portions of his
property, which, under the law, he had a right
to dispose of by Will, so that the disposition in
her favor should be upheld as to the one-half
(½) portion of the property that the testator
could freely dispose of.
This case made a wrong decision. It made the
effect of preterition the reduction of the share
of the instituted heir rather than annulling the
whole institution of heir.
ACAIN v IAC-- In the case, Acain left his estate to his
brothers, completely omitting his wife and
legally adopted daughter. As such, the two
opposed the probate of the will claiming they
were preterited. The SC held that the adopted
child was preterited but not the wife. A wife is
not a compulsory heir in the direct line so she
cannot be preterited. With respect to the
adopted child, it is different. Under Art. 39 of
PD 603, adoption gives to the adopted person
the same rights and duties as if he were a
legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. The
SC further stated that since there were no
devises or legacies, and a compulsory heir
was preterited, the effect is, as if nothing was
written in the will. The whole estate will be
distributed by intestacy.
This case restored the correct interpretation
laid down in Nuguid that preterition annuls the
institution of heirs.
JLT AGRO v BALASAG-- In the case at bar, Don
Julian did not execute a will since what he
resorted to was a partition inter vivos of his
properties, as evidenced by the court
approved Compromise Agreement. Thus, it is
premature if not irrelevant to speak of
preterition prior to the death of Don Julian in
the absence of a will depriving a legal heir of
his legitime. Besides, there are other
properties which the heirs from the second
marriage could inherit from Don Julian upon
his death. A couple of provisions in the
Compromise Agreement are indicative of Don
Julian’s desire along this line. Hence, the total
omission from inheritance of Don Julian’s heirs
from the second marriage, a requirement for
preterition to exist, is hardly imaginable as it is
unfounded.
 Who can be preterited?
1. Legitimate children-- Yes
2. Illegitimate children-- Yes. The law makes no
distinction.
3. Parents, whether legitimate or illegitimate.-- Yes.
4. Grandparents.-- Yes.
5. Spouse.-- No. Extends protection only to
"compulsory heirs in the direct line." Compulsory
heirs in the direct line cover only ascendants and
descendants. Spouses are compulsory heirs not
in the direct line. The remedy of the wife who
has been omitted she may demand her legitime.
6. Adopted child.-- Yes.
 Notes:
1. "Whether living at the time of the execution of
the will or born after the death of the testator."
This does not cover all the possibilities. What
about those born after the execution of the will
but before the death of the testator? Art. 854
also covers them, just an oversight.
2. This is the only case where it is important to
know the distinction between heir, on the one
hand, and devisee and legatee on the other.
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.
 This is not a case of preterition. This is a case of
completion of legitime.
 This article should be applicable to any
compulsory heir whose legitime is impaired or who
receives less than his legitime. The latter may
institute an action to complete his legitime.
 Where do you get the share to complete?
1. Vacant portion (undisposed)
2. If vacant portion is not enough-- "compulsory
heirs." -- WRONG. You do not reduce the
shares of compulsory heirs but get it from the
shares of instituted compulsory heirs as
voluntary heirs. If the compulsory heir gets
more than his legitime, the excess can be
reduced because as to the excess, he is
considered a testamentary heir.
Art. 856. A voluntary heir who dies before the
testator transmits nothing to his heirs.
A compulsory heir who dies before the
testator, a person incapacitated to succeed, and
one who renounces the inheritance, shall transmit
no right to his own heirs except in cases expressly
provided for in this Code.
Kind of Heir Predeceas Incapacity Renunciatio
e n
Compulsor TN TN TN his inheritance, he is also permitted by law to make a
y Rep Rep No Rep second or subsequent designation in case of
Voluntary TN TN TN predecease, incapacity or renunciation of the
No Rep No Rep No Rep previously instituted heir.
Intestate TN TN TN
Rep Rep No Rep Art. 857. Substitution is the appointment of
Legend: TN- Transmits Nothing another heir so that he may enter into the
inheritance in default of the heir originally
Rep- There is Representation instituted.

No rep.-- There is no representation. A. Statutory definition

 GR: There is no transmission of any right from an
heir to his own heirs for any of the three cases (P, I
and R.)
 EXP: For CH and Legal heirs, rules on
representation apply.
o For voluntary, there is no
representation, no matter what the
reason for disqualification is.
o For renunciation, there is no
representation, no matter what kind of
heir.
 In Representation, the representative does not
succeed the person represented because they
died before, but the one whom the person
represented would have succeeded.
 Capacitated means alive or conceived at the time
of the institution.
 It does not give the complete definition of
substitution because it is limited to “in default”
which covers or defines only simple substitution
and not fideicommissary substitution.
 The complete definition would be: “Substitution
is the appointment of another heir so that he
may enter into the inheritance either in default of
or subsequent to, the heir originally instituted.”
B. Basis for substitution
 The power to make substitution is based on the
principle of freedom of disposition or the power
to make testamentary dispositions. This is really
a condition imposed on the institution of heirs.
 It is possible that the testator may have a
second preference. In relation to the first heir
instituted, the first is preferred over the
substitute. But in default or after the first, the
testator would rather that the inheritance go to
the substitute than by intestacy.
 Allowing substitution is giving respect to the first
and second preference of the testator.

C. Purpose of Substitution
 To prevent the property from falling into the
ownership of people not desired by the
testator
 To prevent the effects of intestate succession
or transfer by operation of law.
 To allow the testator greater freedom to help or
reward those individual who although they
may not legally occupy the first place in his
heart or by reason of services rendered to the
testator are more worthy of his affection and
deserving of the bounty than his intestate
heirs.

D. Example

 A has sons whom he does not want to get the

free portion. He wants to give it to B. But B may
die before A. After B, A prefers C to get it. As
between C and his children, A would rather that
C get it. As such, C is appointed by the testator
as B's substitute.

Section 3.—
Substitution of Heirs.
Art. 858. Substitution of heirs may be:
Testator may not only designate heirs, devisees an
(1) Simple or common;
legatees whom he desires to enter into enjoyment of
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary.
A. Kinds of Substitution:
1. Simple or common (Art. 859.)
2. Brief or compendious (Art. 860.)
3. Reciprocal (Art. 861.)
4. Fideicommissary. (Art. 863.)
B. There are only 2 kinds
 Simple or Fideicommissary.
 Brief and reciprocal are just variations and not
kinds of substitutions. You cannot have a purely
reciprocal substitution. All substitutions are either
simple or fideicommissary.
Art. 859. The testator may designate one or more
persons to substitute the heir or heirs instituted in
case such heir or heirs should die before him, or
should not wish, or should be incapacitated to
accept the inheritance.
A simple substitution, without a statement
of the cases to which it refers, shall comprise the
three mentioned in the preceding paragraph,
unless the testator has otherwise provided.
A. Simple Substitution
 This is really a form or kind of conditional
institution. The condition being the predecease,
incapacity or renunciation by the originally
instituted heir.
B. Causes/ Grounds
 Predecease of the first heir
 Renunciation of the first heir
 Incapacity of the first heir
C. Effect:
 The presence of any of the grounds will result in
the vacancy of the portion instituted; hence there
could be substitution on that portion.
D. Two ways of making a simple substitution:
1. Enumerate all the cases.
 E.g., "I institute A, in case A predeceases me,
or renounces, or is incapacitated to succeed,
then B will substitute him."
2. By just calling it.
 E.g., "I institute A, and by way of simple
substitution, I institute B as substitute." In such
a case, all the three causes of substitution will
apply unless the testator provides otherwise.
E. Limit the Causes
 The testator may limit the operation of the 3
causes. He can just mention what he wants to
apply, or any of the three grounds.
 E.g., "I institute A, and if he predeceases me,
then B will substitute him." In such a case, B will
only substitute A if A dies before the testator.
 However, if the cause is not covered by the
causes given in this article, then the estate will
pass by intestacy.
Art. 860. Two or more persons may be substituted
for one; and one person for two or more heirs.
A. Brief or Compendious.-- One substitutes for two
or more heirs or two or more substitutes for one
heir.
 Brief-- 2 or more person for one heir;
 Compendious – one person for 2 or more
heirs.
 Strictly or technically speaking, brief and
compendious are not the same however, they
are synonymous and may be used
interchangeably.
B. Effect:
 If one is substituted for 2 or more original heirs,
the effect of default of one but not all the original
heirs: 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.
C. Example:
 "I institute A to 1/8 of my estate and as his
substitute by way of simple substitution, I
designate X and Y."
 "I institute A, B and C to 1/3 each of my estate
and in case they all die before me, I institute D
as substitute by way of simple substitution." If A
and B predecease the testator, will D get their
shares? No. The substitution will take effect only
upon the death of all the three. However, if what
the will stated was "any or... all die before me,"
then D will get A and B's shares.
Art. 861. If heirs instituted in unequal shares
should be reciprocally substituted, the substitute
shall acquire the share of the heir who dies,
renounces, or is incapacitated, unless it clearly
appears that the intention of the testator was
otherwise. If there are more than one substitute,
they shall have the same share in the substitution
as in the institution.
A. Reciprocal substitution. The instituted heirs are
also substitutes of one another based on either
simple or fideicommissary substitution. If both are
disqualified, then no substitution will take place
and the estate will pass by intestacy.
B. Example of 2nd sentence
  "I institute A to 1/2, B to 1/3, and C to 1/6 of my
estate and by way of simple substitution, I
institute them as substitutes of one another." If A
or B or C predeceases the testator, how will their
share be divided?
o If A then B and C will get 1/2 portion in the
proportion 2:1
o If B then A and C will get 1/3 portion in the
proportion 3:1
o If C then A and B will get 1/6 portion in the
proportion 3:2
Art. 862. The substitute shall be subject to the
same charges and conditions imposed upon the
instituted heir, unless the testator has expressly
provided the contrary, or the charges or conditions
are personally applicable to the heir instituted.
 In substitution, the 2nd heir takes the place of the
first heir. A kind of subrogation.
 GR: The second is subject to the same charges
and conditions as the first heir.
 EXP:
1. Testator has expressly provided the contrary.
2. Charges and obligations are personally
applicable to the first heir.
Art. 863. A fideicommissary substitution by virtue
of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to
transmit to a second heir the whole or part of the
inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond
one degree from the heir originally instituted, and
provided, further, that the fiduciary or first heir and
the second heir are living at the time of the death
of the testator.
A. Fideicommissary substitution
 Indirect substitution is that by virtue of which a
testator institutes a first heir and charges him
to preserve and transmit the whole or part of
the inheritance later on to a second heir.
 Limited to the free portion
B. Purpose
 This is necessary for the prosperity and
prestige of the family, bearing in mind the lack
of intelligence, weakness of character and
vanity and prodigality of the descendants to
whom the property may go. It has been
contended that the power to appoint a
fideicommissary substitute is a complement of
the freedom of disposition which gives a
powerful stimulus to the accumulation of
wealth and thus, maintains the tradition and
social standing of the family.
 This Article is from the Spanish Civil Code
Article 781.
C. Elements
1. There must be a first heir or fiduciary.
 The first heir must be capacitated and must
accept or receive the property, either upon the
death of the testator or upon the fulfillment of
any suspensive condition imposed by the will.
As distinguished from a simple substitution
where the second heir receives property only
upon default of the first heir. First heir does not
receive the property.
 He is not a mere trustee for while he also
administers, he carries out not another’s
wishes but his own, insofar as management is
concerned
 He is like a usufructuary, with the right to enjoy
the use and fruits of the property. However he
is not required unlike a usufructuary to post a
bond but he is required to make an inventory.
2. An absolute dual obligation is imposed upon
the fiduciary to preserve and to transmit to a
second heir the property at a given time.
 This is the essence of a fideicommissary
substitution
 "Given time."-- provided by the testator; if not,
then it is understood that the period is the
lifetime of the fiduciary
 The obligation must be clearly and expressly
stated either by giving the substitution this
name of “fideicommissary substitution” or by
imposing upon the first heir the absolute
obligation or to preserve and deliver the
property to a second heir.
 If the obligation to deliver is made as a mere
suggestion, advice or request, there is NO
fideicommissary substitution. In such a case
there will be a simple or ordinary institution of
the first heir.
CRISOLOGO v SINGSON-- It seems to be of the
essence of a fideicommissary substitution that
an obligation be clearly imposed upon the first
heir to preserve and transmit to another the
whole or part of the estate bequeathed to him,
upon his death or upon the happening of a
particular event. For this reason, Art. 785 of
the old Civil Code provides that a
fideicommissary substitution shall have no
effect unless it is made expressly ("de una
manera expresa") either by giving it such
name, or by imposing upon the first heir the
absolute obligation ("obligacion terminante") to
 deliver the inheritance to a substitute or
second heir.
A careful perusal of the testamentary clause
under consideration shows that the
substitution of heirs provided for therein is not
expressly made of the fideicommissary kind,
nor does it contain a clear statement to the
effect that appellee, during her lifetime, shall
only enjoy usufructuary rights over the
property bequeathed to her, naked ownership
thereof being vested in the brothers of the
testatrix. As already stated, it merely provides
that upon appellee's death — whether this
happens before or after that of the testatrix —
her share shall belong to the brothers of the
testatrix.
In the light of the foregoing, we believe, and so
hold, that the last will of the deceased Dña.
Leona Singson, established a mere sustitucion
vulgar, the substitution Consolacion Florentino
by the brothers of the testatrix to be effective
or to take place upon the death of the former,
whether it happens before or after that of the
testatrix.
PCIB v. ESCOLIN-- In the case, the spouses executed
reciprocal wills. It provided that the share in
the conjugal assets will pass to the surviving
spouse and that the surviving spouse can do
whatever he or she wants with the inheritance,
even sell it, and if there is any residue from the
inheritance from the other spouse upon the
death of the surviving spouse, it shall pass to
the brothers and sisters of the spouse who first
died. The wife died first. The husband did not
liquidate the conjugal assets because he was
the sole heir of his wife. Upon the husband's
death, it is now questioned whether there is
any residue from the wife's estate that could
pass to her brothers and sisters. PCIB, and th
administratrix of the husband claims that:
(1) There was no fideicommissary substitution
because there was no obligation upon the
husband to preserve and transmit the property
to the brothers and sisters of the wife as seen
in his authority to sell the property, and
(2) since there was an invalid attempt to make
a substitution, then the testamentary
disposition is void and there can be no
transmission of rights to the brothers and
sisters.
The SC agreed w/ contention no. 1 on the
same ground. The second requisite was
absent and there could be no fideicommissary
substitution.
With regard to the second contention, the SC
disagreed. The SC said there was a
simultaneous substitution. The institution of the
husband was subject to a resolutory condition
while the institution of the brothers and sisters
was subject to a suspensive condition. Both
conditions are one and the same. It is the
existence in the husband's estate of assets he
received from his wife at the time of his death.
If there is, the husband's right to the residue is
extinguished upon his death while the right of
the brothers and sisters vests at the same
time.
3. There is a second heir who must be one
degree from the first heir.
 The second heir is known as fideicommissary
and is a sort of a naked owner. The enjoyment
of the property is delayed but he becomes the
owner thereof.
 The property is received until the fiduciary’s
right expires but both heirs enter into the
inheritance at the same time upon the death of
testator. Upon transmission to him of the
property, full ownership is consolidated to him.
 The second heir inherits from the testator and
not from the first heir, hence he must be
capacitated to inherit from the testator.
 "One degree." refers to the degree of
relationship because “degree” as used in the
Civil Code refers to “generation”
PALACIOS v RAMIREZ-- In the case, 2/3 of the
usufruct of the free portion was given to
Wanda, w/ 2 other persons not related to her
as her substitutes by way of simple and
fideicommissary substitution. Her
grandnephews object on the ground that there
could be no fideicommissary substitution
because the substitutes were not w/in one
degree of each other. The SC agreed w/ the
nephews.
What is meant by "one degree" from the first
heir is explained by Tolentino as follows:
Scaevola Maura, and Traviesas construe
"degree" as designation, substitution, or
transmission. The Supreme Court of Spain has
decidedly adopted this construction. From this
point of view, there can be only one
transmission or substitution, and the substitute
need not be related to the first heir. Manresa,
Morell and Sanchez Roman, however,
construe the word "degree" as generation, and
the present Code has obviously followed this
interpretation. by providing that 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 and 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.
We uphold the usufruct in favor of Wanda
because a usufruct, albeit a real right, does
not vest title to the land in the usufructuary and
it is the vesting of title to land in favor of aliens
which is proscribed by the Constitution
ARANAS v ARANAS--A cursory reading of the
English translation of the Last Will and
Testament shows that it was the sincere
intention and desire of the testator to reward
his nephew Vicente Aranas for his faithful and
unselfish services by allowing him to enjoy
one-half of the fruits of the testator's third
group of properties until Vicente's death and/or
refusal to act as administrator in which case,
the administration shall pass to anyone
chosen by Carmelo Aranas among his sons
and upon Carmelo's death, his sons will have
the power to select one among themselves.
Vicente Aranas therefore as a usufructuary
has the right to enjoy the property of his uncle
with all the benefits which result from the
normal enjoyment (or exploitation) of another's
property, with the obligation to return, at the
designated time, either the same thing, or in
special cases its equivalent. This right of
Vicente to enjoy the fruits of the properties is
temporary and therefore not perpetual as there
is a limitation namely his death or his refusal.
Likewise his designation as administrator of
these properties is limited by his refusal and/or
death and therefore it does not run counter to
Art. 870 of the Civil Code relied upon by the
petitioners. Be it noted that Vicente Aranas is
not prohibited to dispose of the fruits and other
benefits arising from the usufruct. Neither are
the naked owners (the other heirs) of the
properties, the usufruct of which has been
given to Vicente Aranas prohibited from
disposing of said naked ownership without
prejudice of course to Vicente's continuing
usufruct. To void the designation of Vicente
Aranas as usufructuary and/or administrator is
to defeat the desire and the dying wish of the
testator to reward him for his faithful and
unselfish services rendered during the time
when said testator was seriously ill or bed-
ridden. The proviso must be respected and be
given effect until the death or until the refusal
to act as such of the instituted
usufructuary/administrator, after which period,
the property can be properly disposed of,
subject to the limitations provided in Art. 863 of
the Civil Code concerning a fideicommissary
substitution
4. First and second heir must both be living and
qualified at the time of the death of the
testator.
 REASONS : (a) to reduce the number of
years the property will have to be entailed. For
if the 2nd heir were still not even conceived at
the time the testator dies, a long time may
elapse. (b) Further one cannot inherit from the
testator unless he is alive or at least conceived
and (c) non-conceived child has no juridical
capacity and cannot be given any legal right.
 If fiduciary is able to register the property in his
name, fideicommissary should annotate his
claim on the land on the title to protect himself
against any alienations in favor of innocent
third parties.
 However, fideicommissary substitutions are
also limited to one transmission. Upon the
lapse of time for the first heir, he transmits the
property to the second heir. They cannot be
any more fideicommissary substitution coming
from the same testator. In other words, there
can only be one fideicommissary transmission
such that after the first, there can be no
second fideicommissary substitution.
Art. 864. A fideicommissary substitution can never
burden the legitime.
 In fact, no testamentary disposition can burden the
legitime because legitime is transmitted by
operation of law upon the death of the testator.
Art. 865. Every fideicommissary substitution must
be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the
inheritance to the second heir, without other
deductions than those which arise from legitimate
expenses, credits and improvements, save in the
case where the testator has provided otherwise.
 Two ways of making a fideicommissary
substitution:
1. By naming it
—"I institute A to 1/2 of my estate, and by way
of fideicommissary substitution, I institute B as
his substitute."
2. By imposing upon the fiduciary the
obligation to preserve and transmit.
-- "I institute A to 1/2 of my estate and impose
upon him the obligation to preserve and to
transmit the same to B upon his return.”
 This cannot be presumed and because this does
not admit of extrinsic proof to determine whether
there is fideicommissary substitution.
Art. 866. The second heir shall acquire a right to
the succession from the time of the testator's
death, even though he should die before the
fiduciary. The right of the second heir shall pass to
his heirs.
 At the time of the testator's death, right of the first
and second heir become vested.
 Fideicommissary need not die after the fiduciary
because in that case, the property will pass to his
heirs. The only requirement is that they must be
both alive at the time of the death of the testator.
Art. 867. The following shall not take effect:
(1) Fideicommissary substitutions which are
not made in an express manner, either by giving
them this name, or imposing upon the fiduciary the
absolute obligation to deliver the property to a
second heir;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a temporary one,
beyond the limit fixed in article 863;
(3) Those which impose upon the heir the
charge of paying to various persons successively,
beyond the limit prescribed in article 863, a certain
income or pension;
(4) Those which leave to a person the whole 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.
A. Reasons why they will not take effect:
1. It will not take effect as a fideicommissary
substitution but may take effect as something
else such as ordinary or simple substitution.
2. This is not a fideicommissary but a prohibited
institution.
a. Perpetual prohibition will freeze the property
w/c is against public policy.
b. Temporary prohibition is allowed but cannot
go beyond the limit in
o Art. 863 which is the death of the fiduciary.
Cannot prohibit alienation beyond the
death of the fiduciary. When the property
goes to the second heir, there is no more
prohibition.
o Art. 870 the limit is 20 yrs. In such a case,
the contention is valid if you do not make it
applicable to substitutions.
 Q: If you prohibit for 30 yrs., what will happen?
A: There are 2 answers.
o The whole period is void.
o Only the first 20 years is valid. ( agrees w/
this.)
3. Attempt to circumvent one degree limitation of
fideicommissary substitution.
 E.g., "I give 1/3 of my estate to X and impose
upon him the obligation to give a P5,000
pension to A and in A's death, to A's son." This
is allowed. But if this is extended to the son of
the son of A, then it won't be allowed. The first
and second recipient must be w/in one degree.
But it cannot extend beyond the second
recipient.
4. Dummy provision. This is usually used as a
means to circumvent some prohibition of law
such as prohibition of giving to paramour
 E.g., A has a paramour X. A gets B as a
dummy. Because of the prohibition of giving to
a paramour, they agree between themselves
that A will leave to B a devise and from its
profits B will give X. So A pretends to name B
as heir. But in reality, such institution is for the
benefit of X.
o In such a case, the institution will not
benefit X. Even if X shows a written
agreement bet. A and B, it cannot be
enforced bec. it is contrary to law.
o As regards B, he can keep the
inheritance even if he double-crosses
A. A instituted B at his own risk that he
may be double-crossed by B. Too bad
for X.
Art. 868. The nullity of the fideicommissary
substitution does not prejudice the validity of the
institutions of the heirs first designated; the
fideicommissary clause shall simply be considered
as not written.
 The nullity of the fideicommissary substitution will
not affect validity of institution of the first heir.
 When the fiduciary predeceases or is unable to
succeed, the fideicommissary heir takes the
inheritance upon the death of the decedent.
 E.g., "I hereby institute A to 1/3 of my estate under
obligation to preserve and to transmit the same to
B upon his death."
a. If institution of B is invalid, what will happen to
the institution of A? Institution of A is valid w/o
substitution.
b. If the institution of A is invalid, what will happen
to the institution of B? The law does not
provide. However the substitution of B must be
upheld because the testator wanted to give his
property to the substitute rather than to go
intestacy.
Art. 869. A provision whereby the testator leaves to
a person the whole or part of the inheritance, and
to another the usufruct, shall be valid. If he gives
the usufruct to various persons, not
simultaneously, but successively, the provisions of
article 863 shall apply.
 If the testator institutes successive usufructuaries,
there can only be two usufructuaries, one after the
other, and as to the 2 of them, all the requisites of
Art 863 must be present.
 Example, "I give to A naked ownership, and to B
the usufruct and upon B's death, to his son C."
This is valid. If it goes to the son of the son of B,
then it is invalid.
 Just as there can be a substitution w/ regard to the
usufruct, there can also be a substitution w/ regard
to the naked ownership.
Art. 870. The dispositions of the testator declaring
all or part of the estate inalienable for more than
twenty years are void.
 This has nothing to do w/ substitution. It refers to
simple institution of heir, devisee or legatee.
 This is to prevent perpetuation of large land
holdings which gives rise to agrarian law
violations.
 If the testator imposes a longer period than 20
years the prohibition is valid only for 20 years.
 If there is a fideicommissary substitution, the
limitation will not apply. Rather, Art 683 will apply
which allows, as a period, the lifetime of the first
heir.
 Q: Can it go beyond 20 yrs?
A: There are 2 answers.
No. The whole period is void.
No. But valid only for the first 20 years.
Section 4.—
Conditional Testamentary Dispositions and
Testamentary Dispositions With a Term
 Mode is not included in the title of the section .-- an
oversight.
 Articles 871-875 talk of three things: Testamentary
dispositions with a--
1. Condition-- future or uncertain event, or a
past event unknown to the parties, upon which
the performance of an obligation depends.(Art.
1179)
2. Term-- a day certain is understood to be that
which must necessarily come, although it may
not be known when; the day or time when an
obligation either becomes demandable or
terminates. (Art. 1193)
3. Mode—the statement of the object of the
institution or the application of the property left
by the testator or the charge imposed upon
him.(Art 882)
 Distinguish a Term from condition
o Similarity-- Both refer to a future event.
o Difference-- A condition is uncertain; a term is
certain.
 The arrangement of this Section is disorganized.
To rearrange:
1. General Provisions-- applies to all three--
Articles 871 and 872.
2. Condition.-- Articles 873 to 877, 879 to 881,
883, par. 2, 884
3. Term.-- Articles 878, 885
4. Mode.-- Articles 882, 883 par. 1
General Provisions.
Art. 871. The institution of an heir may be made
conditionally, or for a certain purpose or cause.
 This gives the testator the right to make these
dispositions. The article did not include an
institution with a term. This is an oversight.
 The right of the testator to impose conditions,
terms or modes springs from testamentary
freedom. If he has the right to dispose of his estate
mortis causa, then he has the right to make the
disposition subject to a condition, term or mode.
Art. 872. The testator cannot impose any charge,
condition or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so,
the same shall be considered as not imposed.
 General limitation: The testator cannot impair the
legitime. Why? Because the testamentary
disposition is based on the power to dispose
mortis causa. Legitimes, on the other hand, are
passed by operation of law.
 This is repeated in Art. 904.
Conditions.
 A suspensive condition gives rise to the right
if it happens.
 A resolutory condition extinguishes the right
if it happens.
 Kinds of Conditions:
1. Impossible Conditions.
Art. 873. Impossible conditions and those contrary
to law or good customs shall be considered as not
imposed and shall in no manner prejudice the heir,
even if the testator should otherwise provide.
 Impossible conditions include those w/c are
illegal, against public order and public policy.
 Vague wording of conditions that even after
applying rules on construction and interpretation, it
is still meaningless, contradictory or cannot be
understood, the condition will be regarded as
impossible condition and be disregarded.
 Effect: It nullifies the condition. The condition is
deemed as not imposed. The testamentary
disposition becomes pure, absolute and
unconditional.
 Examples of Impossible Conditions:
a. A instituted B as heir provided B could make a
dead man live, otherwise he gets nothing. –B
will still be an heir.
b. A instituted B as heir provided B kills C. – if B
does not kill C, he inherits notwithstanding the
condition which is contrary to law.
 Compare with donations (Art. 727.) and onerous
obligations (Art. 1183.) (in donations, deemed not
imposed. In onerous obligations, annuls the
obligation unless severable.)
Art. 727. Illegal or impossible conditions in
simple and remuneratory donations shall be
considered as not imposed.
Art. 1183. Impossible conditions, those
contrary to good customs or public policy and
those prohibited by law shall annul the
obligation which depends upon them. If the
obligation is divisible, that part thereof which
is not affected by the impossible or unlawful
condition shall be valid.
 Why the difference? Testamentary dispositions
and donations are acts of liberality. The moving
factor is liberality. If you take away the impossible
condition, the moving factor still exists, the
liberality. While in onerous donations, the condition
is an element of cause. If the condition is
impossible, there is a failure of cause. This results
in a void obligation.
 Example: "I sell you my car if you impregnate the
great blue bear of Antartica and if you pay me
P10,000." Since there is an impossible condition,
there is a failure of cause. Since there is no cause,
then the obligation is void.
2. Condition Prohibiting Marriage.
Art. 874. An absolute condition not to contract a
first or subsequent marriage shall be considered
as not written unless such condition has been
imposed on the widow or widower by the deceased
spouse, or by the latter's ascendants or
descendants.
Nevertheless, the rights 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.
A. If the condition is on the first marriage
 The condition is considered as not imposed.
 E.g., "I give 1/3 of my estate to A if she does
not get married." The condition is considered
as not imposed.
B. If the condition is imposed on the second
marriage
 GR: The condition is deemed as not imposed.
 EXP: Valid if imposed by:
(a) spouse;
(b) ascendants of spouse;
(c) descendants of spouse.
 Example:
o GR: "I give 1/3 of my estate to Mr. A on the
condition that if he should be widowed, he
will not get married." The condition is
deemed as not imposed here.
o EXP: "I give the entire free portion of my
estate to my husband A on the condition that
if I predecease him, he will not get married."
The condition is valid in this case.
C. Other Situations:
  What about a condition to contract marriage?
VALID because it is not prohibited and by
contrary implication.
 What about a condition to enter into religious
life? VALID
 What about a condition to renounce a religion?
NOT VALID.
D. Relative Prohibition to Contract marriage
 GR: Prohibition to marry a particular girl, or at a
particular time, or for a number of years is VALID
 EXP: it becomes so onerous or burdensome.
E. The second paragraph relaxes the rule to go
around the prohibition of the first paragraph
 A stopping of a usufruct, allowance or personal
prestation the moment the heir devisee or
legatee marries or remarries is justified since the
law allows their giving for the time during which
the person remains unmarried or in widowhood.
 Example: "I give X a pension of P10,000 during
the entire time she is single." This is a valid
condition.
3. Disposition Captatoria
Art. 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.
 It is against public policy because it impairs the
voluntariness of wills; hence prohibited.
 It is against revocability: If you can alter your will
after receiving, then it is a breach of good faith. But
if the testator is not allowed to alter the will, the
condition is against revocability. Either option is
unacceptable.
 Consider (the article) restrictively.-- Limit it to
cases where the beneficiary is to make a will
instituting the testator or a third person.
 E.g., "I give 1/3 of my estate to A provided he
makes a will instituting me (or B) as heir." The
disposition is void.
4. Suspensive Conditions:
Art. 876. Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he
learns of the testator's death.
This rule shall not apply when the
condition, already complied with, cannot be
fulfilled again.
a. Potestative condition is one the fulfillment of
which depends purely on the heir. He must
perform it personally. Nobody else must do it for
him.
 GR: The condition must be fulfilled as soon as
the heir learns of the testator's death.
 EXP: If the condition has already been
fulfilled and it cannot be fulfilled again, the
condition is deemed fulfilled.
 Examples:
o "I give my entire free portion to Erap
should he shave his moustache."
o A instituted B as heir on condition that B
would learn how to dance the “twist”. This
must be fulfilled asap after A’s death. If B
already knows how to dance the “twist”, it
is understood that he inherits just the
same, UNLESS the testator meant that B
should dance it better than the way he
used to during the lifetime of A, in which
case he must improve his dancing.
 Constructive compliance is applicable
pertaining to 2nd par.8. That when the heir,
devisee or legatee has done everything to
comply w/ the condition but the condition still
does not happen.
Art. 877. If the condition is casual or mixed it shall
be sufficient if it happen or be fulfilled at any time
before or after the death of the testator, unless he
has provided otherwise.
Should it have existed or should it have
been fulfilled at the time the will was executed and
the testator was unaware thereof, it shall be
deemed as complied with.
If he had knowledge thereof, the condition
shall be considered fulfilled only when it is of such
a nature that it can no longer exist or be complied
with again.
b. Casual.-- The fulfillment of the condition depends
solely on chance or on the will of a third person.
 Example:
o "I give X, 1/3 of my estate should Mayon
erupt one year from now."
o A gives B a legacy on condition that C
wins the lotto. If C had already won the
lotto and A did not know this, the condition
is deemed complied with
c. Mixed-- The fulfillment of the condition depends
partly on chance and partly on the will of the heir,
devisee, or legatee.
 Example:
o "I give one million to A provided he sets up
a foundation for the victims of the next
eruption of Mayon."
o A gives B a legacy on condition that B
become a lawyer. If B is already a lawyer
and A did not know this, the condition is
deemed complied. If A knew this, B gets
the legacy just the same, because the
condition can no longer be complied with
again.
 Rules for casual and mixed conditions:
o GR: The condition may be fulfilled any
time, before or after the testator's death
UNLESS the testator provides otherwise.
Because it is not w/in the heir, devisee or
legatee's control.
o Qualification: If condition is already
fulfilled at the time of the execution.
 Testator is unaware-- The condition is
deemed complied w/ or fulfilled.
 Testator is aware.—
-- If the condition can no longer be
fulfilled again, it is deemed fulfilled;
--If the condition can still be fulfilled,
fulfill it again.
 Rules for Constructive or Substantial
compliance.-- “tried his best” to comply w/
the condition but the condition still does not
happen is sufficient.
o Purely potestative-- Applicable.
o Casual-- Not applicable.
o Mixed.--
 a. By will of person interested
– applicable
 Person not interested - not
applicable
Art. 879. If the potestative condition imposed upon
the heir is negative, or consists in not doing or not
giving something, he shall comply by giving a
security that he will not do or give that which has
been prohibited by the testator, and that in case of
contravention he will return whatever he may have
received, together with its fruits and interests.
 Caucion Muciana is the bond or security required
to guarantee the return of the value of property,
fruits and interests in case of violation of condition,
term or mode.
o To be given in favor of those who would get
the property if the condition be not complied
with (intestate heirs or substitute).
o Applies to Art 885, 879 and 882(2)
 Example of Negative PC
o A institute B as heir on condition that B should
not smoke for one whole year. He gets the
inheritance right away, but he must first give a
security to guarantee he would not smoke for
one year. In case he does smoke again within
said period he should return whatever he may
have received, together with its fruits and
interest.
Art. 883. xxx
If the person interested in the condition
should prevent its fulfillment, without the fault of
the heir, the condition shall be deemed to have
been complied with.
 Example: A institutes a friend B as heir provided B
passes the bar of 2003. If C, a brother of A(and the
only surviving relative of A) inflicts injury on B such
that B cannot take the bar exams of 2002; it is as if
B has passed the bar and B gets the estate. C
here is an interested person because he is to
benefit being a legal heir in case B cannot fulfill the
condition.
Art. 880. If the heir be instituted under a
suspensive condition or term, the estate shall be
placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot
be fulfilled, or until the arrival of the term.
The same shall be done if the heir does not
give the security required in the preceding article.
 If the suspensive condition is not fulfilled, place the
estate under administration until:
o The condition is fulfilled, in w/c case the estate
should be given to the instituted heir;
o It becomes obvious that it cannot be fulfilled, in
w/c case the estate should be given to the
intestate heirs.
o Arrival of the term
o Does not give the required security
 Example: "I give a car to A when he places first in
the bar." Testator dies while A is still taking law.
The car is put under administration until:
o A tops the bar, in w/c case the car should be
given to him; or
o A dies while reviewing in w/c case, the car
should be given to the intestate heirs because
the condition has become obviously
impossible of being fulfilled.
Art. 881. The appointment of the administrator of
the estate mentioned in the preceding article, as
well as the manner of the administration and the
rights and obligations of the administrator shall be
governed by the Rules of Court.

Art. 884. Conditions imposed by the testator upon
the heirs shall be governed by the rules
established for conditional obligations in all
matters not provided for by this Section.
 Rules on conditional obligations will apply
suppletorily. Articles 1179 to 1192.
Term.
Art. 878. A disposition with a suspensive term
does not prevent the instituted heir from acquiring
his rights and transmitting them to his heirs even
before the arrival of the term.
 Suspensive term is one that merely suspends the
demandability and acquisition of rights. It is sure to
happen.
 This is founded on the principle that the right of the
heir instituted subject to a term is vested at the
time of the testator's death-- he will just wait for the
term to expire.
 The heir must survive the testator.
 If the heir dies after the testator but before the term
expires, he transmits his rights to his own heirs
because of the vested right.
 E.g., "I give P1M to X, five years after my death."
 Compare this w/ conditional.-- Art. 1034, par. 3--
Qualification of heir-- The heir must be alive and
qualified at the time of the testator's death and
when the condition happens. Thus if he dies after
the testator but before the condition is fulfilled, he
never inherited being already dead.
Art. 885. The designation of the day or time when
the effects of the institution of an heir shall
commence or cease shall be valid.
In both cases, the legal heir shall be
considered as called to the succession until the
arrival of the period or its expiration. But in the
first case he shall not enter into possession of the
property until after having given sufficient security,
with the intervention of the instituted heir.
 What happens when the testator dies?
a. Suspensive (ex die)-- give it to the intestate
heirs for them to enjoy but in order to protect
the right of the instituted heir, intestate heirs
must put up a bond
b. Resolutory (in diem.)-- Give it to the instituted
heirs but when the term arrives, he must give it
to the intestate heirs. The instituted heir does
NOT have to file a bond.
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 and for
the return of anything he or they may receive,
together with its fruits and interests, if he or they
should disregard this obligation.
 Modal institution:
1. Object of the institution—“I institute A as my
heir to give him enough money to obtain a
legal education
2. Application of the property left by the
testator—I institute A as my heir. He will apply
the properties of my estate to the construction
of a College of Law building.
3. Charge imposed by testator—I institute S as
my heir. He will devote 10% of the annual
income from my buildings for the
establishment of a library.
 A mode is an obligation imposed upon the heir to do
or to give something.
 A condition suspends but does not obligate while a
mode obligates but does not suspend.
 Rules:
1. In case of doubt between a mode and a
condition, resolve in favor of mode.
2. In case of doubt whether a mode exists,
resolve in favor of it being a request.
Art. 883. When without 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.
xxx
 Example: “Buy a 2003 BMW” . if this cannot be
obtained, a slightly used 2002 BMW will be
suitable.
 Guidelines:
o Whose estate is under consideration?
From whose perspective are we com

Section 5.--
LEGITIME
 System of legitimes: Our successional system,
closely patterned after that of the Spanish Code,
reserves a portion of the net estate of the decedent
in favor of certain heirs, or groups of heirs, or
combination of heirs.
 The portion that is so reserved is called the legitime
(a transliteration from the Spanish legitima).
 The portion that is left available for testamentary
disposition after the legitimes have been covered is
the free or disposable portion.
 The heirs for whom the law reserves a portion are
called compulsory heirs.
ROCHA v TUASON-- The Civil Code in force in these
Islands, just like former Spanish legislation,
does not recognize liberty in the execution of
wills, therefore it has established the system of
legitimes in favor of forced heirs of ascendants
who died testate or intestate. As a
consequence of the said system forced heirs,
also called necessary heirs, acquire from the
time of their birth the passive right to
participate in the inheritance, a right which
becomes effective and positive from the
moment of the death of their predecessor in
interest. Therefore, the right to inherit, which
belongs to recognized natural children born
under the provisions of the Civil Code, is
indisputable and the latter cannot be excluded
from the testate or intestate succession of their
natural parents by the mere fact that a
legitimate child was born to the father in lawful
wedlock.
It is true that the right to enter into the
possession of any inheritance commences
only from the moment of the death of the
predecessor-in-interest. But it is undeniable
that a necessary or forced heir (compulsory
heir), according to the system of legitimes, has
by provision of law, from the time of his birth, a
vested right to eventually acquire the
inheritance from his ascendants, the right to
be actually vested, from the moment of death.
Such a vested right is inherent with his filiation
to which belong the obligations and rights of
the author of his being.
MANONGSONG v ESTIMO-- Nature of legitimes. The
legitimes are set aside by mandate of the law.
Thus, the testator is required to set aside or
reserve them. Otherwise stated, the testator is
prohibited from disposing by gratuitous title
(either inter vivos or mortis causa) of these
legitimes. Dispositions by onerous title are not
prohibited because, in theory, nothing is lost
from the estate in an onerous disposition,
since there is merely an exchange of values.
“When the disposition is for valuable
consideration, there is no diminution of the
estate but merely a substitution of values, that
is, the property sold is replaced by the
equivalent monetary consideration.”
Art. 886. Legitime is that part of the testator's
property which he cannot dispose of because the
law has reserved it for certain heirs who are,
therefore, called compulsory heirs.
 There is compulsion on the part of the testator to
reserve that part of the estate which corresponds to
the legitime, not on the part of the heirs who are free
to accept or reject the inheritance
 The law sets a fixed aliquot or fractional portion of
the estate aside for the compulsory heirs.
o Always ½ for legitimate children and parents.
 The law does not specify which property to reserve
but only sets aside a fractional portion of the estate.
 The prohibition imposed on the testator is that he is
prohibited from making gratuitous disposition:
(a) testamentary disposition mortis causa;
(b) donation inter vivos
 Only the legitime is reserved. The free portion may
be disposed of by will.
 Example: A is married to B. They had a child C. A
owns lot worth P5M.
a. A sells the lot to D for P5M. This is valid. The
prohibition does not cover an onerous
disposition because this involves an exchange
of values.
b. A donates to D. This is not valid if it impairs the
legitime of B and C.
Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with
respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents
and ascendants, with respect to their legitimate
children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in article
287.
 3 Classification of Compulsory Heirs:
1. Primary-- Legitimate children, and in their
absence, legitimate descendants. They are
primary because they are absolutely preferred,
and they exclude the secondary.
2. Secondary-- Legitimate parents, and in their
absence, legitimate ascendants They inherit only
in the absence of default of the primary.
3. Concurring-- Surviving spouse and illegitimate
children. They get their legitime together w/ the
primary or secondary heirs. They get it from the
free portion if the legitime is deficient. They
neither exclude primary or secondary heirs nor
each other.
EXP: Illegitimate children exclude illegitimate
parents.
 6 Kinds of Compulsory Heirs:
1. Legitimate children and descendants
2. Legitimate parents and ascendants
3. Surviving spouse
4. Illegitimate children and descendants
5. Illegitimate parent as to illegitimate children
6. Adopted children
LEGITIMATE CHILDREN AND DESCENDANTS
 Specified in Articles 164 and 54 of the FC.
Legitimated children fall under this classification
(Article 179, FC)
Art. 164. Children conceived or born during the
marriage of the parents are legitimate.
Children conceived as a result of artificial
insemination of the wife with the sperm of the
husband or that of a donor or both are likewise
legitimate children of the husband and his wife,
provided, that both of them authorized or
ratified such insemination in a written
instrument executed and signed by them before
the birth of the child. The instrument shall be
recorded in the civil registry together with the
birth certificate of the child. (55a, 258a)
Art. 54. Children conceived or born before the
judgment of annulment or absolute nullity of the
marriage under Article 36 has become final and
executory shall be considered legitimate.
Children conceived or born of the subsequent
marriage under Article 53 shall likewise be
legitimate.
Art. 179. Legitimated children shall enjoy the
same rights as legitimate children.
 GR: Adopted children are entitled the same as
Legitimate children
 EXP: when adoptive parent is survived by adopted
children.
o Adopted cannot inherit beyond adoptive
parent even in representation.
Art. 888. The legitime of legitimate children and
descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of
the surviving spouse as hereinafter provided.
 Always 1/2, in equal portions, whether they survive
alone or with concurring compulsory heirs.
 If there are legitimate children, they will get
collective legitime of 1/2 of the estate. It does not
say how they will divide the legitime.
Commentators agree that they will divide the 1/2
equally regardless of age, sex, marriage of origin
(whether 1st, 2nd, etc.)
 GR: the nearer exclude the more remote; thus,
children, if all qualified, will exclude grandchildren,
and so on. The qualification to this rule is
representation, when proper.
 Descendants inherit when:
a. Right of representation exists
b. All children renounce. Since all renounce,
the next in line will inherit equally not by
virtue of representation but because they are
the nearest relatives in the descending line.
 Example:
a. If A, B and C renounce, grandchildren will
inherit.
b. If only B renounces, legitime will be divided
into 2 only, B's children cannot represent
him.
TS
AB+ C+
b1 b2 c1
TS
ABr C
b1 b2 c1
 TS
Ar Br Cr
b1 b2 c1
***all will inherit
o EXP: If one of the parents, either M or F, is
alive, division by line will not apply. Rule 1
would apply where the nearer would
exclude the more remote. The parent
LEGITIMATE PARENTS AND ASCENDANTS would exclude the grandparent.

 Share is always 1/2 in the absence of descendants c) Equal division-- If two particular persons are
and whether survived alone or by other of the same degree or rank, and they inherit
compulsory heirs. from one and the same person, they will inherit
in the same amounts, without any
Art. 889. The legitime of legitimate parents or discrimination as to any other aspect.
ascendants consists of one-half of the hereditary
estates of their children and descendants. GMm GFmGMfGFf
The children or descendants may freely
dispose of the other half, subject to the rights of M+ F+
illegitimate children and of the surviving spouse as T
hereinafter provided. **25 each **25 each

Art. 890. The legitime reserved for the legitimate

parents shall be divided between them equally; if
one of the parents should have died, the whole  The adopter has, in relation to the adopted, the
shall pass to the survivor. same successional right as legitimate parents.
If the testator leaves neither father nor Under present law (Sec. 18, R.A. 8552), the
mother, but is survived by ascendants of equal adopter displaces the biological parents in the
degree of the paternal and maternal lines, the successional scheme relative to the estate of the
legitime shall be divided equally between both adopted.
lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones  How far up do you go? As far as possible as long
nearest in degree of either line. as all lower ascendants are dead. The law does
not limit but nature does.
 3 rules:
SURVIVING SPOUSE
a) The nearer excludes the farther-- on the
basic theory that the testator will have more  The surviving spouse referred to here is the
affection for those nearer to him than those spouse of the decedent, not the spouse of a child
farther from him. who has predeceased the decedent.
GMm GFmGMfGFf
 They inherit even if there are illegitimate children
M(50) F(50) ROSALES v ROSALES-- In this case, the deceased
T was the mother-in-law of the plaintiff. The
plaintiff's husband had predeceased his
mother. The plaintiff widow seeks a share in
o No representation in the ascending line. her mother-in-law's estate claiming she is a
compulsory heir being a widow.
GMm GFmGMfGFf
There is no provision in the Civil Code which
states that a widow (surviving spouse) is an
M+ F(100)
intestate heir of her mother-in-law. The entire
T
code is devoid of any provision which entitles
her to inherit from her mother-in-law either by
her own right or by the right of representation.
b) Division between lines The provisions of the Code which relate to the
order of intestate succession (Articles 978 to
GMm GFm+GMfGFf 1014) enumerate with meticulous exactitude
the intestate heirs of a decedent, with the
M+ F+
T
*50 **25 each
 State as the final intestate heir. The
conspicuous absence of a provision which
makes a daughter-in-law an intestate heir of
the deceased all the more confirms our
observation. If the legislature intended to make
the surviving spouse an intestate heir of the
parent-in-law, it would have so provided in the
Code.
The aforesaid provision of law refers to the
estate of the deceased spouse in which case
the surviving spouse (widow or widower) is a
compulsory heir. It does not apply to the estate
of a parent in law. Indeed, the surviving
spouse is considered a third person as
regards the estate of the parent-in-law.
 The marriage between the decedent and his/her
surviving spouse must be either valid or voidable;
if voidable, there should have been no final decree
of annulment at the time of the decedent’s death.
CARIÑO v CARIÑO—“Under article 40 of the Family
Code, the absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final
judgment declaring such previous marriage
void. Meaning, where the absolute nullity of a
previous marriage is sought to be invoked for
purposes of contracting a second marriage,
the sole basis acceptable in law, for said
projected marriage to be free from legal
infirmity, is a final judgment declaring the
previous marriage void. However, for purposes
other than remarriage, no judicial action is
necessary to declare a marriage an absolute
nullity. For other purposes, such as but not
limited to the determination of heirship,
legitimacy or illegitimacy of a child, settlement
of estate, dissolution of property regime, or a
criminal case for that matter, the court may
pass upon the validity of marriage even after
the death of the parties thereto, and even in a
suit not directly instituted to question the
validity of said marriage, so long as it is
essential to the determination of the case.”
We likewise find no basis for the trial courts
declaration that the sale embodied in the
Kasulatan deprived the compulsory heirs of
Guevarra of their legitimes. As opposed to a
disposition inter vivos by lucrative or gratuitous
title, a valid sale for valuable consideration
does not diminish the estate of the seller.
When the disposition is for valuable
consideration, there is no diminution of the
estate but merely a substitution of values, that
is, the property sold is replaced by the
equivalent monetary consideration.
 Mere estrangement is not a ground for the
disqualification of the surviving spouse as heir.
 Effect of a final decree of legal separation:
a. On the offending spouse—disqualification
b. On the innocent spouse-- nothing
o EXP: if there’s reconciliation(must be proven)
Art. 66. The reconciliation referred to in the
preceding Articles shall have the following
consequences:
(1) The legal separation proceedings, if still
pending, shall thereby be terminated at
whatever stage; and
(2) The final decree of legal separation shall be
set aside, but the separation of property
and any forfeiture of the share of the guilty
spouse already effected shall subsist,
unless the spouses agree to revive their
former property regime
 Death of either spouse during the pendency of a
petition for legal separation-- dismissal of the case:
LAPUZ v EUFEMIO-- A review of the resulting
changes in property relations between
spouses shows that they are solely the effect
of the decree of legal separation: hence, they
cannot survive the death of the plaintiff if it
occurs prior to the decree. Article 107 makes it
apparent that the right to the dissolution of the
conjugal partnership of gains (or of the
absolute community of property ), the loss of
right by the offending spouse to any share of
the profits earned by the partnership or
community , or his disqualification to inherit by
intestacy from the innocent spouse as well as
the revocation of testamentary provisions in
favor of the offending spouse made by the
innocent one, are all rights and disabilities
that, by the very terms if the Civil Code article,
are vested exclusively in the persons of the
spouses; and by their nature and intent, such
claims and disabilities are difficult to conceive
as assignable or transmissible.
These rights are mere effects of a decree of
separation, their source being the decree
itself; without the decree such rights do not
come into existence, so that before the finality
of a decree, these claims are merely rights in
expectation. If death supervenes during the
pendency of the action, no decree can be
forthcoming, death producing a more radical
and definitive separation; and the expected
consequential rights and claims would
necessarily remain unborn.
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and
void, unless before the celebration of the
subsequent marriage, the prior spouse had been
absent for 4 consecutive years and the spouse
present has a well-founded belief that the absent
spouse was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of Article
 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the spouse
present must institute a summary proceeding as
provided in this Code for the declaration of
presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent
spouse. (83a)

Art. 42. The subsequent marriage referred to in the
preceding Article shall be automatically terminated
by the recording of the affidavit of reappearance of
the absent spouse, unless there is a judgment
annulling the previous marriage or declaring it void
ab initio.
A sworn statement of the fact and
circumstances of reappearance shall be recorded in
the civil registry of the residence of the parties to
the subsequent marriage at the instance of any
interested person, with due notice to the spouses of
the subsequent marriage and without prejudice to
the fact of reappearance being judicially determined
in case such fact is disputed. (n)
Art. 43. The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
 Share of the Surviving Spouse:
Art. 900. If the only survivor is the widow or
widower, she or he shall be entitled to one- half of
the hereditary estate of the deceased spouse, and
the testator may freely dispose of the other half.
If the marriage between the surviving
spouse and the testator was solemnized in articulo
mortis, and the testator died within three months
from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-
third of the hereditary estate, except when they
have been living as husband and wife for more
than five years. In the latter case, the legitime of
the surviving spouse shall be that specified in the
preceding paragraph.

(1) The children of the subsequent marriage (1.) Survived Alone

conceived prior to its termination shall be
considered legitimate; o GR: 1/2 of the estate
(2) The absolute community of property or the
conjugal partnership, as the case may be, shall
o EXP: 1/3 of the estate if:
be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her a) The marriage was in articulo mortis;
share of the net profits of the community b) The testator died within 3 months from
property or conjugal partnership property shall the time of the marriage;
be forfeited in favor of the common children or, c) The parties did not cohabit for more
if there are none, the children of the guilty than 5 years; and
spouse by a previous marriage or in default of d) The spouse who died was the party in
children, the innocent spouse; articulo at the time of the marriage.
(3) Donations by reason of marriage shall remain
valid, except that if the donee contracted the
marriage in bad faith, such donations made to
o EE: 1/2 if living together for more than 5
said donee are revoked by operation of law; years prior to the marriage
(4) The innocent spouse may revoke the designation
of the other spouse who acted in bad faith as
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate and
intestate succession. (n)
o EXAMPLE: A, in the ICU, is rich and dying
A B+ C of AIDS. B, who has not lived w/ A,
(absent sps, 1st wife) (2nd wife) accepts A's proposal of marriage. They get
married in the hospital. After getting
married, A lapses into a coma. The doctor
 If B and C are in good faith and A reappears, in sends B to buy the medicine. As B is
case B dies, who will inherit? crossing the street, she is run over by a
bus and dies. A is the only compulsory
heir of B.

Q: Is this the marriage in articulo mortis

contemplated by the 3rd exception?
 A: No. The one who should die w/in 3 o 1/4 of estate-- 1 LC or LA
months should be A for the exception
to apply. o Equal to share of 1 legitimate child—if 2
or more LC
o Rationale for the exception -- It is the law's
way of showing its distaste to marriages o "Or descendant" (all portions are in
for convenience or for interest or gain. relation to the whole estate unless
otherwise provided.)
o Exception applies only if the wife is the
only compulsory heir. Because in other
cases, she will always get less than 1/2.
o Does not also apply to intestacy if the wife
is the only intestate heir. She will get the T S
whole estate. In such a case, the testator A B+ C
was not given a chance to make a will. If a1 a2 b1 b2 b3 c1 c2
given a chance, he could have named
other people.

Art. 892. If only one legitimate child or descendant o If B predeceases T, then :

of the deceased survives, the widow or widower A = 1/6
shall be entitled to one- fourth of the hereditary B's children = 1/18 per child
estate. In case of a legal separation, the surviving C = 1/6
spouse may inherit if it was the deceased who had S = 1/6
given cause for the same.
If there are two or more legitimate children T S
or descendants, the surviving spouse shall be
A Br C
entitled to a portion equal to the legitime of each of
the legitimate children or descendants. a1 a2 b1 b2 b3 c1 c2

Art. 893. If the testator leaves no legitimate

descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth o If B renounces, then:
of the hereditary estate. A = 1/4
This fourth shall be taken from the free C =1/4
portion of the estate.
S = 1/4
Art. 897. When the widow or widower survives with
legitimate children or descendants, and
T S
acknowledged natural children, or natural children A+ B+ C+
by legal fiction, such surviving spouse shall be a1 a2 b1 b2 b3 c1 c2
entitled a portion equal to the legitime of each of
the legitimate children which must be taken from
that part of the estate which the testator can freely
dispose of. o If A, B and C predecease T, then:
A’s children = 1/12 each
Art. 898. If the widow or widower survives with B’s children = 1/18 each
legitimate children or descendants, and with C’s children 1/12 each
illegitimate children other than acknowledged S = 1/6
natural, or natural children by legal fiction, the
share of the surviving spouse shall be the same as -- According to commentaries: S’s share is
that provided in the preceding article. based on what the children would have
received if they were alive.

T S
Ar Br Cr
a1 a2 b1 b2 b3 c1 c2

(2.) SS Survived with LC/LD; LA ; LC/LD/IllC

o If A, B and C renounce
 Grandchildren= 1/14 each (legitime of ILLEGITIMATE CHILDREN AND DESCENDANTS
1/2 is divided equally, no
representation between the 9  Under the FC, there is no more distinction between
grandchildren) acknowledged natural children and illegitimate
children. They are all considered as illegitimate.
S=?
--According to Tolentino, S gets 1/6. S's Art. 163. The filiation of children may be by nature or
share is based on the number of children. by adoption. Natural filiation may be legitimate or
To allow S's share to be equal to a illegitimate. (n)
grandchild would give the children the
opportunity to reduce the legitime of S, Art. 165. Children conceived and born outside a
especially if S is only a stepmother. The valid marriage are illegitimate, unless otherwise
problem in this case is when "or provided in this Code. (n)
descendants" will apply. This issue is
undecided.  The share of the illegitimate child shall be :

(3.) SS survived with IllC only
Art. 894. If the testator leaves illegitimate children,
the surviving spouse shall be entitled to one-third
of the hereditary estate of the deceased and the
illegitimate children to another third. The
remaining third shall be at the free disposal of the
testator.
Art. 176. x x x. The legitime of each illegitimate
child shall consist of one-half of the legitime of
a legitimate child. Except for this modification,
all other provisions in the Civil Code governing
successional rights shall remain in force.
o GR: 1/2 of the legitime of a legitimate child.

o SS= 1/3 S T - - - - - - -x
o Illegitimate children = 1/3 collectively (divided A B C D
depending if the decedent died before (5 : 4)
or after (equal) the FC)
S= 1/4
LC=1/2: A=1/4, B=1/4
C= 1/8, D= 1/8

S= 1/4
S T-------x
A B C D E
(4.) SS survived with IllC and LP/ LA

Art. 899. When the widow or widower survives with LC=1/2: A=1/4, B=1/4
legitimate parents or ascendants and with C=1/12, D=1/12,
illegitimate children, such surviving spouse shall E=1/12
be entitled to one-eighth of the hereditary estate of
the deceased which must be taken from the free o EXP:
portion, and the illegitimate children shall be
entitled to one-fourth of the estate which shall be Art. 896. Illegitimate children who may survive with
taken also from the disposable portion. The legitimate parents or ascendants of the deceased
testator may freely dispose of the remaining one- shall be entitled to one-fourth of the hereditary
eighth of the estate. estate to be taken from the portion at the free
disposal of the testator.
o LP/LA = 1/2
o IllC = 1/4 a.) 1/4 of the estate if survived with LP/ LA
o SS = 1/8 (Art 896) or with SS and LP/LA (Art 899)
o Free portion = 1/8
o This shows how arbitrary legitime scheme is M F
with regard to the surviving spouse. T - - - - - - - -x
C D

LP= 1/2
IllC=1/4;
C=1/8, D= 1/8

c
M F LP= 1/2
S T - - - - - - - - -x SS= 1/8
C D IllC=1/4;
C=1/8, D= 1/8
Art. 895. The legitime of each of the acknowledged
natural children and each of the natural children by
legal fiction shall consist of one-half of the legitime
of each of the legitimate children or descendants.
The legitime of an illegitimate child who is
neither an acknowledged natural child, nor a
natural child by legal fiction, shall be equal in
every case to four-fifths of the legitime of an
acknowledged natural child.
The legitime of the illegitimate children
shall be taken from the portion of the estate at the
free disposal of the testator, provided that in no
case shall the total legitime of such illegitimate
children exceed that free portion, and that the
legitime of the surviving spouse must first be fully
satisfied.
b) pursuant to Article 777, if death occurred
before the effectivity of the Family Code
on 3 August 1988, the old distinctions will
apply and the spurious child gets only 4/5
the share of the natural.
Art. 901. When the testator dies leaving illegitimate
children and no other compulsory heirs, such
illegitimate children shall have a right to one-half
of the hereditary estate of the deceased.
The other half shall be at the free disposal
of the testator.
c) 1/2 divided either equally (decedent died
after the FC)
C= 1/2
S+ T - - - - -x
C of the illegitimate child, the legitime of the parents
Art. 902. The rights of illegitimate children set forth
in the preceding articles are transmitted upon their
death to their descendants, whether legitimate or
illegitimate.
 The same rule applies here as in the legitimate
descending line: the nearer exclude the more
remote, without prejudice to representation when
proper.
 Illegitimate child can be represented by both
legitimate and illegitimate descendants, as
distinguished from the legitimate child, who can be
represented only by legitimate descendants
 This results in inconsistency and unfairness. Art.
902 read with Art. 992 puts a premium on
bastardness. Preference is given to bastard
children of an illegitimate children as compared to
bastard children of legitimate children.
S T-----------Q
1 A+ B+ 2
a1 aa bb b2
o Who will inherit and not inherit when T dies?-
- a1 can inherit by representation.
- aa cannot inherit from X in either intestate
or compulsory succession because of Art.
992 which provides that an illegitimate
cannot inherit ab intestado from the
legitimate relatives of the father or mother
and vice-versa
- b1 and bb can inherit by representation
o If a1, b1 and bb are dead. Who can inherit?
- still aa cannot inherit because an
illegitimate cannot represent legitimate
parent or ascendant.
ILLEGITIMATE PARENT AS TO ILLEGITIMATE
CHILDREN
Art. 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither
legitimate descendants, nor a surviving spouse,
nor illegitimate children, is one- half of the
hereditary estate of such illegitimate child. If only
legitimate or illegitimate children are left, the
parents are not entitled to any legitime whatsoever.
If only the widow or widower survives with parents
is one-fourth of the hereditary estate of the child,
and that of the surviving spouse also one-fourth of
the estate.
 3 scenarios:
a.) IllP alone- - 1/2 of the estate
b.) IllP survived with LC/IllC- -
IllP
T o LC/IllC= dpends on who is left
o IllP= nothing
LC IllC

c.) IllP survived with SS
IllP o IllP= 1/4
o S= 1/4
T S
 Rules:
a. Filiation must be proved otherwise the mother
will get all.
b. Unlike the legitimate ascending line, which
includes ascendants of whatever degree, the
illegitimate ascending line includes only
parents; it does not go beyond the parents.
c. The illegitimate parents are secondary heirs of
a lower category than legitimate parents,
because the illegitimate parents are excluded
by legitimate and illegitimate children
d. Whereas legitimate parents are excluded only
by legitimate children/descendants.
ADOPTED CHILDREN
 Adopted children have, in relation to their
adopters, the same successional rights as
legitimate children (Secs. 17 & 18, R.A. 8552
[Domestic Adoption Act of 1998])
 Q: Is an adopted child entitled to a legitime from
his biological parents or ascendants? by
compulsory or intestate succession? This question
did not arise under the Family Code.
Art. 189 (3) x x x
(3) The adopted shall remain an intestate heir of
his parents and other blood relatives.”
SECTION 16. Parental Authority. - Except in cases
where the biological parent is the spouse of the
adopter, all legal ties between the biological
parent(s) and the adoptee shall be severed and
the same shall then be vested on the adopter(s)."
 A: Thus, the adopted child was entitled to a
legitime both from his adopter and his biological
parents. Now, the law is silent. It neither gives nor
denies an adopted child the right to a legitime from
his biological parents. True, Section 16 of the law
states that “all legal ties between the biological
parent(s) and the adoptee shall be severed . . .”,
but that is unavailing to answer the question
raised, because Section 16 (as its title indicates)
has to do with parental authority. This uncertainty
could have been avoided by more careful drafting.
 Q: Does the adopted have the right to succeed his
biological parents or relatives by compulsory or
intestate succession? The answer is a deep and
baffling silence.
1. The adopted has no right of compulsory
and intestate succession to his biological
parents and relatives.
a) The non-inclusion of Art. 189 (3) of
the FC manifests an intent to
suppress it.
b) In order for the right to succeed to
exist, there must be a provision of
law granting it.
c) There seems to be an intent in the
new law to sever all links between
the adopted and his biological
family. This can be gleaned from
Sections 16, 17 and 18, above
referred to.
2. The opposite view is that the adopted
retains his right to succeed his biological
parents and relatives.
a) The repealing clause (Sec. 26) of the
new law does not explicitly repeal Art.
189 (3) of the FC.
b) The right in question is favorable to the
adopted. Doubts should be resolved in
favor of the adopted.
IN THE MATTER OF THE ADOPTION OF
STEPHANIE NATHY ASTORGA GARCIA--
Being a legitimate child by virtue of her
adoption, it follows that Stephanie is entitled to
all the rights provided by law to a legitimate
child without discrimination of any kind,
including the right to bear the surname of her
father and her mother, as discussed above.
This is consistent with the intention of the
members of the Civil Code and Family Law
Committees as earlier discussed. In fact, it is a
Filipino custom that the initial or surname of
the mother should immediately precede the
surname of the father.
the Supreme Court, in an obiter, stated that
“under Art. 189 (3) of the FC and Sec. 18 of
RA 8552 the adoptee remains an intestate heir
of his/her biological parent.” Being obiter, the
 statement of course does not bind. The issue and marriage should not be allowed to cause
in that case was whether an illegitimate child, that property to leave that family.
upon adoption by her natural father, could use
the surname of her natural mother as her
middle name. Furthermore, there are obiters, ORIGINRESERVISTA
and this particular one is, at best, less than
impressive. Sec. 18 of RA 8552 will be PREPOSITUSRESERVATORIOS
scanned in vain for any reference to the right
of the adopted to succeed his biological
parents by compulsory and intestate
succession. II. Purpose of Reserva Troncal

PADURA v BALDOVINO-- [t] he reserva troncal is a

Relative LC & SS IllC LP & IllP
special rule designed primarily to assure the
Survivin LD LA
return of the reservable property to the third
g
degree relatives belonging to the line from
LC 1/2 which the property originally came, and to
1LC, SS 1/2 1/4 avoid its being dissipated . . . by the relatives
>1 LC, 1/2 same 1/2 of of the inheriting ascendant (reservista).
SS, IllC as each
1LC child GONZALES v. CFI.-- The purpose of reserva troncal is
to return the property to where it originated
SS, IllC 1/3 1/3 and to avoid the danger that property existing
LP/A, SS, 1/8 1/4 1/2 for many years in a family’s patrimony might
IllC pass gratuitously to outsiders through the
accident of marriage and untimely death.
LP 1/2
to prevent outsiders from acquiring, through an
IllC 1/2
accident of life, property which, but for such
1/2, accident, would have remained in the family.
SS 1/3,
1/2 III. Requisites
LP, SS 1/4 1/2 CHUA v. CFI.— The following are the requisites:
IllP 1/2
1. that the property was acquired by a
IllP, SS 1/4 1/4 descendant from an ascendant or from a
RESERVA TRONCAL brother or sister by gratuitous title;

Art. 891. The ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to
reserve such property as he may have acquired by
operation of law for the benefit of relatives who are
within the third degree and who belong to the line
from which said property came.
I. History of Reserva Troncal:
 Comments:
 “Reserva” betokens the setting aside or the
setting apart of something, putting it away from
free disposition or circulation.
 “Troncalidad” is largely about the principle of
absolute separation of genealogical lines.
 Thus, when the law on reserva troncal was
retained in the NCC, it continues to recognize
the feudal nature of ownership in the
Philippines. In fact, the underlying concept is
that property should stay with the family
because it has stayed with them for so long
2. that said descendant died without an
issue;
3. that the property is inherited by another
ascendant by operation of law; and
4. that there are relatives within the third
degree belonging to the line from which
said property came.
1. "descendant" -- applies only if one got it from
an ascendant; but what if one got it from a
brother; it should have been "by a person or
individual"
2. Individual died without legitimate issue. "Issue"
here means children or descendants.
a. If w/ legitimate issue, this will not apply but
will go to legitimate descendants.
 b. If w/ legitimate issue but they all renounce,
or incapacitated or the individual dies as if
there was no legitimate issue
3. "Operation of law" means legal or compulsory
succession or from legitime or intestacy
IV. PARTIES.
 There are four parties:
(1.) Origin or Mediate Source—the transferor
in the first transfer;
(2.) Prepositus—the first transferee, who is a
descendant or brother/sister of the Origin;
(3.) Reservista (Reservor)—the ascendant
obliged to reserve; and
(4.) Reservatarios (Reservees)—the relatives
benefited.
 Two Basic Rules:
1. No inquiry is to be made beyond the
Origin. It does not matter who the owner of
the property was before it was acquired by
the Origin.
2. All the relationships among the parties
must be legitimate. “. . . [t]he provisions of
Art. [891] apply only to legitimate relatives.
NIEVA v ALCALA-- Article 811 of the Civil Code which
provides that "any ascendant who inherits from
his descendant any property acquired by the
latter gratuitously from some other ascendant,
or from a brother or sister, is obliged to reserve
such of the property as he may have acquired
by operation of law for the benefit of relatives
within the third degree belonging to the line
from which such property came," does not
apply to illegitimate relatives.
(1.) ORIGIN.-- Either an ascendant or a brother or
sister of the prepositus where the property came
from.
a. If ascendant, there is no problem. You know
from what line the property came from.
b. If brother or sister.
(i) If half blood, no problem. You know
what line the property came from.
(ii) If full blood, there is a problem. How
will you know what line it came from?
 JBL Reyes.-- Reserva troncal applies only
to half blood brothers and sisters. Because
“otherwise the property would not change
lines in passing to a common ascendant of
the prepositus and the brother. There
should, in other words, be no reserva if the
fraternal relationship is of the full-blood for
then it would not be possible to identify the
line of origin—whether paternal or maternal.
 Manresa.-- It should apply regardless of
whether it is of full or half blood. The law
does not distinguish.
(2.) PREPOSITUS-- Either a descendant, or brother
or sister of the origin, who receives the property
from the Origin by gratuitous title. His death
gives rise to reserva and an arbiter to the
existence of reserva troncal.
 He is the central figure in the reserva troncal
because:
a. At the time he receives the property, he
becomes the absolute owner. He can
prevent reserva troncal from happening.
How? By preventing it from going to an
ascendant by operation of law. How?
o By selling it. Dispose of a potentially
free portion property (even by pacto
de retro.)
o Give it to an ascendant by donation,
devise, legacy or testamentary
succession.
b. He is the basis or point of reference for the
third degree relationship.
 There is no reserva troncal yet while the
property is in the hands of the prepositus.
 Therefore, it must be reiterated that because
of the concept of reserva, the very same
property must go thru the process of
transmissions. This means that the property
must come from the origin to the prepositus by
gratuitous title and to the reservista by
operation of law. Thus, if the prepositus
substitutes the property by selling, bartering or
exchanging it, the substitute cannot be
reserved. Consequently, the prepositus has,
over the property plenary powers of ownership
and he may exercise these powers to thwart a
potential reserva. He is the arbiter of the
reserva.
 In light of this power given to the prepositus, is
reserva troncal still applicable in cases where
the prepositus makes a will instituting the
reservista to the whole or part of the free
portion and there is left in the estate of the
prepositus, upon his death, in addition to the
reserved property, property not reservable?

c. Reserva maxima (maximum operation of
reserva troncal) – dictates that as much as
the potentially reservable property as
possible must be deemed included in the
part that passes by operation of law as this
maximizes the scope of the reserva.
d. Reserva minima (followed by most
commentators) – requires that every single
property in the estate of the prepositus
must be deemed to pass, partly by will and
partly by operation of law, in the same
proportion that the part given by will bears
to the part not so given.
(3.) RESERVISTA—ascendant who inherits the
property by operation of law. He must be another
ascendant other than the origin if the origin is an
ascendant.
 Reserva troncal begins once the reservista
inherits the property. He is bound by the
obligations.
 The provision says “another ascendant” that is
to say an ascendant other than the origin. It is
therefore clear from the text of the law that if it
is the same ascendant as the origin of the
property, there is no obligation to reserve.
o Example: A person donates property to his
son and upon son’s death, the same
property passes by operation of law to the
father from whom it came in the first place,
the father would not be obliged to reserve.
F from leaving the line
S character of the ownership of the reservista
 Q: Should the reservista belong to a line
similar to the mediate source or should he be
from a different line?
o Example: S receives by donation a
parcel of land from his paternal
grandfather GF. Upon S’s death, the
parcel passes by intestacy to his
father F (GF’s son). The property
never left the line. Is F obliged to
reserve?
GF
F consistent with the principle that the reserved
S to the reservatorios by strict operation of law.
 JBL Reyes—If we subscribe to the purpose of
the reserva, which is “to prevent outsiders
from acquiring, through accident of life,
property, which but for such accident, would
have remained in the family”, there should be
no reserva in such a case because there is no
call for its operation. There seems to be no
justification for imposing the reserva inasmuch
as the property never left the line. The term
“another ascendant” refers to one belonging to
a line OTHER than that of the reservista.
 Sanchez Roman & Manresa—Reserva would
operate in that case. The law is couched in
unequivocal terms and no qualification is
mentioned. Further, the purpose of the
provision is not only curative but preventive,
that is, to bar the possibility of the property
leaving the line through the intermediation of
an ascendant.
CARILLO v DELA PAZ --In that case, property was
passed by succession from mother to son and
then in turn by succession from son to
maternal grandmother, causing a reserva
(according to the Court) to arise. The Carrillo
statement, however, may not be determinative
of this controversy inasmuch as the question
of reserva troncal was not the lis mota in that
case.
Thus, the view adopted is that for reserva
troncal to apply, the origin and the reservista
must not be from different lines because the
law does not distinguish especially that the
purpose of the reserva is not only curative but
preventive, which is to prevent the property
CABARDO v VILLANUEVA -- In so far as the
over the reserved property is concerned this
case is instructive. An interest on the part of
the reservista and his heirs on the reserved
property is terminated with his death. When
the person who is bound to reserve
(reservista) dies, all rights pertaining to him in
the reservable estate is terminated. Said
property therefore does not pertain to his
estate at all, in other words the property is not,
properly speaking, a part of the estate in
administration.
CANO v DIRECTOR—the SC reiterated that the
reserved property is not part of the reservista’s
estate upon his death. This ruling is perfectly
property, upon the death of reservista, passes
(4.) RESERVATORIOS – They are from whom the
reserva is established because it is for the
benefit of a class or group of individuals who are
 relatives within the 3rd degree and who belong to
the line from which the property came. They will
become full owners of the property the moment
the reservista dies. The reservatorios must be a
legitimate relative of the origin and the
prepositus.
 Requirements to be a reservatorio:
a. He must belong to the line from which the
property came. This is determined by the
Origin.
o If the origin is an ascendant of the
prepositus, the interpretation if the
ascendant is the father or any paternal
ancestor, the line of origin would be
the paternal line. If the mother or any
maternal ancestor then the maternal
line.
o If a half-brother or -sister, the same is
true. If the father is the common
parent then paternal while if the
mother is the common parent then
maternal.
o If, however, it is a brother or sister of
the full blood, it would not be possible
to distinguish the lines. According to
Manresa’s “the question of line is
immaterial.”
b. Must be within the third degree from the
prepositus.
o The reservees inherit the property
from the prepositus, not from the
reservor/ reservista.
CABARDO v VILLANUEVA -- In calculating the
degrees of kinship within which the reservable
right can be claimed, the person upon whom
the property last devolved by descent in the
line from which the property is derived must be
taken as the prepositus, or person from whom
the degrees are to be reckoned.
CANO v DIRECTOR -- The reservatorios are the
 Reservatorios can be:
a. First degree
—the mother or father of the prepositus.
o But can it also be the children of the
prepositus? Suppose the prepositus
did have a legitimate child who was
however disqualified to inherit
because of unworthiness,
disinheritance or renunciation and
consequently, an ascendant of the
prepositus inherited instead. Would
the child be a reservatorio? But to
allow the child to eventually get the
property is a circumvention of the law.
One cannot do indirectly what one is
prohibited to do directly.
b. Second degree
—grandparent of the prepositus
— full and half-siblings of prepositus
c. Third degree
—uncles and aunts by blood of the
prepositus
—great grandparents of the prepositus
—nephews and nieces of the prepositus
 Must be related by blood to the origin.
(additional requirement)
o Sanchez Roman espouses the view
that the reservatorio must also be
related by consanguinity or by blood to
the origin. According to him, without
this element, the result would be
completely contrary to the purpose of
the reserva which is to prevent
property from passing to persons not
of the line of the origin.
o Example: Maternal grandmother
passed on property by inheritance to
her grandchild who upon his death
transmitted it by operation of law to his
father. Would the maternal grandfather
be a reservatorio? It should be noted
that although relative on the mother’s
side, the maternal grandfather is not a
relative by consanguinity to the origin.
GMm+ GFm
M+F+
P+
relative within the 3rd dergree from the
prepositus who will become the full owner of
the property the moment the reservista dies,
because by such death, the reserva is
extinguished. Indeed 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
  To be qualified as a reservatario, is it
necessary that one must already be living
when the Prepositus dies? Or is it enough for
one to be a reservatorio that one is living when
the reservista dies?
o JBL Reyes—the reservatorios inherit
the reserved property from the
prepositus. Carried to its strict logical
implication, it would mean that
reservatorios are individuals already
living or at least already conceived at
the time of the death of the prepositus
o Manresa -- The better opinion seems
to be that this is not required, it is
enough that the reservatorio be living
at the time of the death of the
reservista because as pointed out:
‘The reserva is established in favor of
a group or class: the relatives within
the third degree—not in favor of
specific individuals.
PADURA v BALDOVINA.-- The stated purpose of the
reserva is accomplished once the property has
devolved to the specified relatives of the line of
origin. But from this time on, there is no further
occasion for its application. In the relations
between one reservatario and another of the
same degree, there is no call for applying Art.
891 any longer; wherefore, the respective
share of each in the reversionary property
should be governed by the ordinary rules of
intestate succession. In this spirit the
jurisprudence of this Court and that of Spain
has resolved that upon the death of the
ascendant reseruista, 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.
In other words, the 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.
FLORENTINO v FLORENTINO.— Following the order
prescribed by law in legitimate succession,
when there are relatives of the descendant
within the third degree, the right of the nearest
relative, called reservatario, over the property
which the reservista (person holding it subject
to reservation) should return to him, excludes
that of the one more remote. The right of
representation cannot be alleged when the
one claiming same as a reservatorio of the
reservable property is not among the relatives
within the third degree belonging to the line
from which such property came, inasmuch as
the right granted by the Civil Code in Article
811 is in the highest degree personal and for
the exclusive benefit of designated persons
who are the relatives, within the third degree,
of the person from whom the reservable
property came. Therefore, relatives of the
fourth and the succeeding degrees can never
be considered as reservatarios, since the law
does not recognize them as such.
V. PROCESS.
ORIGIN RESERVISTA
(ascendant/sibling of P)(another ascendant of P)
1st transfer
(gratuitous)
2nd transfer
(operation of law)
3rd transfer
PREPOSITUS RESERVATORIO
(descendant/sibling of O)(3rd degree relative of P)
 The property in reserva troncal undergoes a
process of three transmissions or transfers:
(1.) First transfer—by gratuitous title, from a
person to his descendant, brother or sister.
This is from the origin to the prepositus.
CHUA v.s CFI.--. “The transmission is gratuitous or by
gratuitous title when the recipient does not
give anything in return.” It matters not whether
the property transmitted be or be not subject to
any prior charges; what is essential is that the
transmission be made gratuitously, or by an
act of mere liberality of the person making it,
without imposing any obligation on the part of
the recipient; and that the person receiving the
property gives or does nothing in return. x x x.
It is true that there is the order of the probate
Court in Intestate Proceeding No. 4816 which
states in express terms x x x. But the
obligation of paying the Standard Oil Co. of
New York the amount of P3,971.20 is imposed
upon Consolacion de la Torre and Juanito
Frias Chua not personally by the deceased
Jose Frias Chua in his last will and testament
but by an order of the court in the Testate
Proceeding No. 4816 dated January 15, 1931.
As long as the transmission of the property to
the heirs is free from any condition imposed by
the deceased himself and the property is given
out of pure generosity, it-is gratuitous. It does
not matter if later the court orders one of the
 heirs, in this case Juanito Frias Chua, to pay
the Standard Oil Co. of New York the amount
of P3,971.20. This does not change the
gratuitous nature of the transmission of the
property to him. If the expense or charge is
just incidental, it is still considered gratuitous
(2.) Second transfer—by operation of law, from
the transferee in the first transfer to another
ascendant. It is this second transfer that gives
rise to the reserva. This is from the prepositus
to the reservista.
 By operation of law, is either thru the
legitime in compulsory succession or
intestate succession and cannot be by
testate succession or even donation.
Reserva troncal commences at this
point.
(3.) Third transfer—mandated by reserva, from
the transferee in the second transfer to the
relatives. This is from the reservista to the
reservatorios.
 This is a consequence of reserva
troncal. This occurs when the
reservista dies. Reserva troncal ends
here.
SOLIVIO v CA-- Clearly, the property of the deceased,
Esteban Javellana, Jr., is not reservable
property, for Esteban, Jr. was not an
ascendant, but the descendant of his mother,
Salustia Solivio, from whom he inherited the
properties in question. Therefore, he did not
hold his inheritance subject to a reservation in
favor of his aunt, Celedonia Solivio, who is his
relative within the third degree on his mother’s
side. The reserva troncal applies to properties
inherited by an ascendant from a descendant
who inherited it from another ascendant or a
brother or sister. It does not apply to property
inherited by a descendant from his ascendant,
the reverse of the situation covered by Article
891.
Since the deceased, Esteban Javellana, Jr.,
died without descendants, ascendants,
illegitimate children, surviving spouse,
brothers, sisters, nephews or nieces, what
should apply in the distribution of his estate
are Articles 1003 and 1009 of the Civil Code.
VI. JURIDICAL NATURE
 The juridical nature of reserva troncal may be
viewed from two aspects—from that of the
reservista and that of the reservatarios.
(1.) On right of the reservista over the reserved
property.
EDROSO v SABLAN— The rights of reservista
over the reserved property are the
following?
a. Reservista's right over the property is that of
ownership
b. Reservista's right is subject to a resolutory
condition which is that the reservatorios exist
at the time of the reservista's death. If there
are, the reservista's right terminates and the
property will pass to the reservatorios.
c. Reservista's ownership is alienable but subject
to the same resolutory condition. The buyer's
ownership is subject to the same resolutory
condition.
d. Reservista's right of ownership is registrable.
Therefore, we reverse the judgment appealed
from, and in lieu thereof decide and declare
that the applicant is entitled to register in her
own name the two parcels of land which are
the subject matter of the application, recording
in the registration the right required by Article
811 to be reserved to either or both of the
opponents, Pablo Sablan and Basilio Sablan,
(2.) On right of the reservatorios over the
reserved property.
SIENES v ESPARCIA.—
a. Reservatorios right over the property during
the life of the reservista is a mere expectancy.
b. The expectancy is subject to a suspensive
condition which is that the reservatorio is alive
at the time the reservista dies
c. The right of expectancy can be alienated but it
will be subject to the same suspensive
condition
d. The right of expectancy is registrable. It must
be annotated at the back of the title to protect
the reservatorios from innocent purchasers for
value.
GONZALES v CFI-- In the instant case, the properties
in question was indubitably reservable
properties in the hands of Mrs. Legarda.
Undoubtedly, she was a reservor. The
reservation became a certainty when at the
time of her death the reservees of relatives
within the third degree of the prepositus
Filomena Legarda were living or they survived
Mrs. Legarda. So, the ultimate issue in this
case is whether Mrs. Legarda as reservor,
could convey the reservable properties by will
of mortis causa to the reservees within the
third degree (her sixteen grandchildren) to the
 exclusion of the reservees in the second
degree, her three daughters and three sons.
We hold that 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 reservor cannot make a
disposition mortis causa of the reservable
properties as long as the reservees survived
the reservor.
Article 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 reservees to whom the reservable property
should be given and deprive the other
reservees of their share therein.
To allow the reservor in this case to make a
testamentary disposition of the reservable
properties in favor of the reservees in the third
degree and, consequently, to ignore the
reservees in the second degree would be a
glaring violation of Article 891. That
testamentary disposition cannot be allowed.
The rule in this jurisdiction, therefore, is that,
upon the reservista’s death, the property
passes by strict operation of law (according to
the rules of intestate succession), to the
proper reservatarios. Thus, the selection of
which reservatarios will get the property is
made by law and not by the reservista.
VII. RIGHTS AND OBLIGATIONS OF THE PARTIES.
Rights of Reservatorio Obligations of
Reservista
 To demand inventory  To inventory and
and appraisal appraise
 To demand annotation  To annotate reservable
of reservable character character of the
of the property property w/in 90 days
 To demand security/  To give security/ bond
bond
SUMAYA v IAC -- It is jurisprudence only that states
that there is an obligation to annotate. The
other rights exist by analogy from the Old
Code wherein similar rights existed for reserva
viudal.
VIII. Extinguishment
(1.) Death of reservista -- No more reserva troncal.
The reservatorios get the property. If there are
no reservatorios, the property shall form part of
the estate of the reservista. It is a kind of
delayed succession (JBL Reyes) from the
prepositus.
(2.) Death of all the reservatorios -- Reservista's
title to the property becomes absolute and
unconditional.
(3.) Fortuitous loss of the reserved property-- If
the loss was due to the fault of the reservista,
the security will answer for the property.
(4.) Waiver by all the reservatorios provided no
reservatorio is subsequently born -- This is a
tentative extinguishment because those
subsequently born cannot be bound by the
waiver. A waiver is personal.
(5.) Registration of the property under the Torrens
system by an innocent purchaser for value
wherein the reservable character of the property
is not annotated on the title -- not really an
extinguishment but more of a freeing of the prop.
The reservista, however, is liable for the value of
the property plus damages.
(6.) Extinctive prescription -- reservista adversely
occupies the property or openly denies the
reserva (as when the reservista or stranger
holds property adversely, 30 years for real; 8
years for personal property because of bad faith)
(7.) Confusion or Merger of rights—as when the
reservatorio acquires the reservista’s right in a
contract inter vivos.
 Reservista can alienate -- but must be to all
the reservatorios or if only to one, then
merger takes place only w/ regard to that
share.
 Is reserva troncal still applicable after the passage
of FC? This is in view of the fact that the default
property regime per the FC is absolute community
of property and not anymore conjugal partnership of
gains per the NCC.
 1. Made in a valid will. (Art. 916. Which includes
the requirement that the identity of the heir is
clearly established therein

2. It must be based on a legal cause (Art. 916

vis-a vis Arts 919 to 921)

3. The cause must be EXPRESSLY made in the

will. (Art 918)

4. Must be for a TRUE CAUSE because if

challenged by the heir, it must be proved to be
true and the proponent of disinheritance has
the burden of proof. (Articles 917 to 918)

5. Must be for an EXISTING cause and is

PRESENT/HAS OCCURRED upon death of
the testator and not one that has prescribed.

6. It must be total, absolute or unconditional.

 The strictness of the requisites indicates the policy

of the law. It regards disinheritance with disfavor
and will grant it only with reluctance, because
disinheritance results in deprivation of legitime.

Art. 915. A compulsory heir may, in consequence

of disinheritance, be deprived of his legitime, for
causes expressly stated by law.

 Disinheritance is the process or act, thru a

testamentary disposition of depriving in a will any
compulsory heir of his legitime for true and lawful
causes. (Art 850 of Spanish Civil Code)

Art. 916. Disinheritance can be effected only

through a will wherein the legal cause therefor
shall be specified.

I. Made in a will—The first clause of this article

constitutes the first requisite of disinheritance—that it
Section 6.— must be made in a will.
DISINHERITANCE.  The will, obviously, must be formally valid and
must be admitted to probate.
 GR: A compulsory heir cannot deprive his
compulsory heir of his legitime. II. Legal cause— The second clause is the second
 EXP: unless expressly provided by law. The law requisite.
expressly provides only one way, valid  The causes are specified in Articles 919 (for
disinheritance. descendants), 920 (for ascendants), and 921
(for the surviving spouse).
 Effect of disinheritance—the effect of
disinheritance is not just deprivation of the Art. 917. The burden of proving the truth of the
legitime, but total exclusion of the disinherited heir cause for disinheritance shall rest upon the other
from the inheritance. Thus, the effectively heirs of the testator, if the disinherited heir should
disinherited heir forfeits: deny it.

1. his legitime,

2. his intestate portion, if any, and

3. any testamentary disposition made in a prior will

of the disinheriting testator.

 Requisites:
 On top of the requirement on the legal basis of (thus, it is an express unintentional ( it is an
disinheritance, the law requires that the same deprivation) implied deprivation)
ground must also be true. Thus, the cause must be 2.cause must always be 2. may be with cause or
stated in the will, legal and true. If the heir stated in the will; must without cause
disinherited denies the truthfulness of the cause, the be true and legal
other heirs who stand to benefit out of the validity of 3. the disinherited heir 3. preterition annuls the
the disinheritance must show proof that indeed the inherits NOTHING institution; therefore
cause is true. (either by way of the omitted heir
legitime, or by way of inherits
Art. 918. Disinheritance without a specification of free portion)
the cause, or for a cause the truth of which, if 4. a will is always 4. may exist with or
contradicted, is not proved, or which is not one of required without a will (as
those set forth in this Code, shall annul the when everything has
institution of heirs insofar as it may prejudice the been given to only
person disinherited; but the devises and legacies one of the
and other testamentary dispositions shall be valid compulsory heirs by
to such extent as will not impair the legitime. way of donation inter
vivos).
 THIS article provides for INEFFECTIVE, 5. may be VALID — 5. the institution is
IMPERFECT, DEFECTIVE disinheritance, and it when all the always VOID —
happens when: requirements of the except when the
law are followed. preterited heir
1. Cause is not stated in the will predeceases the
testator.
2. Cause is not among those provided for by law
 Distinctions Between Preterition and
3. When cause is denied by the disinherited heir IMPERFECT Disinheritance
and not proved by other heirs

4. Cause is no longer existing because of

subsequent reconciliation of the testator and Preterition Imperfect
heir Disinheritance

5. Other situations where the other requisites for The institution of heirs is The institution remains
a valid disinheritance are absent. completely annulled. valid, but must be
reduced insofar as the
 EFFECT; When imperfect disinheritance happens: legitime has been
impaired.
1. The heir gets the legitime. The
testamentary dispositions remain effective
and will only be reduced if it will impair the  Similarities Between Preterition and Imperfect or
legitime of the heir invalidly disinherited. Ineffective Disinheritance

2. The devisees, legacies and other
testamentary dispositions shall be valid to
such extent as will not impair the legitime.
 Therefore, ineffective disinheritance do not annul
testamentary dispositions. Thus, if the testator gave
away the free portion via testamentary dispositions,
they remain valid and the heir improperly disinherited
gets only the legitime. If the testator did not dispose
of the free portion, the heir improperly disinherited
will be entitled to the corresponding share in the free
portion as an intestate heir
 Distinctions Between Preterition and VALID
Disinheritance
Preterition
VALID Disinheritance
1.disinheritance is 1. omission may be
always intentional either intentional or
(a) In both cases, the omitted heir and the
imperfectly disinherited heir get at least their
legitime.
(b) In both cases, the legacies and devises remain
valid insofar as the legitime has not been
impaired.
(c) Both refer to compulsory heirs.
Art. 919. The following shall be sufficient causes
for the disinheritance of children and descendants,
legitimate as well as illegitimate:
(1) When a child or descendant has been found
guilty of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;
(2) When a child or descendant has accused the
testator of a crime for which the law prescribes
 imprisonment for six years or more, if the
accusation has been found groundless;
(3) When a child or descendant has been
convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the
testator to make a will or to change one already
made;
(5) A refusal without justifiable cause to support
the parent or ascendant who disinherits such
child or descendant;
(6) Maltreatment of the testator by word or deed,
by the child or descendants;
(7) When a child or descendant leads a
dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the
penalty of civil interdiction.
 The causes for disinheritance is an exclusive list and
not illustrative.
(1.) Attempt against the life, etc.—
.
 Includes murder, homicide or parricide
 "Attempt" is a generic term which includes all
kinds of commission, whether frustrated or
consummated. As long as intent to kill must be
present.
 Final conviction is necessary
(2.) Accusation.
 Elements:
a. Accusation is a generic term which
includes:
(i) Filing of an information;
(ii) Presenting incriminating evidence;
(iii)Acting as a witness against
ascendant.
b. Crime imputed carries an imprisonment of
more than six (6) years
c. Accusation is groundless.-- Ascendant is
acquitted on the finding that:
(i) there is no crime; or
(ii) that the ascendant did not commit it.
 If the ascendant was acquitted on
reasonable doubt, the ascendant
cannot disinherit because the
accusation is not groundless.
(3.) Adultery and concubinage.—
 When the child or descendant has been
convicted of adultery or concubinage with the
spouse of the testator.
 The mere act of adultery or concubinage with
the spouse of the testator is not a ground for
disinheritance if a case is not filed and
conviction is had.
 E.g., When your parent remarries someone
young and you have an affair with that person
and a case is filed against you and you were
convicted thereof
(4.) Fraud, violence, intimidation or undue
influence as regards the will.—
 This goes into the very essence of will-
making-- the freedom deprived by the child or
descendant.
 It does not mention prevent because if he was
prevented, how can he make a will of
disinheritance? Prevention is a ground for
unworthiness (Art. 1032, par. 7) which has the
same effect as disinheritance.
(5.) Refusal to support without justifiable cause.—
 Requires that there must have been a need
and demand for support. Refusal, itself, is not
a ground; it must be unjustified.
 E.g., In the FC, there is an order of preference
for support. The person may be willing to
support but it is not economically feasible. A
person must support his children and spouse
first. The ascendants are in fact only third in
the hierarchy of support. There is here a
justified refusal.
the (6.) Maltreatment.—
 Includes all acts of violence against the person
of the testator. It even includes any
maltreatment of the testator by words, for as
long as the maltreatment is intentional and of
serious nature.
 No conviction is required as compared to
number 1 wherein conviction is needed. This
may be proven by preponderance of evidence.
It is possible for an act not to fall in number 1
but to fall in number 6.
 E.g., The son shoots his father. The father is
wounded but he recovers. The father does not
want a scandal so he does not file charges
against his son. So, he disinherits his son not
under number 1 but under no. 6.
PECSON v MEDIAVILLO-- If the maltreatment in the
form of gross disrespect and raising of the
hand against a grandfather was caused by a
child of tender years (14) and who a little later
became insane, this would not be sufficient
cause for disinheritance.
(7.) Leads a dishonorable life.—
 This is a catch-all provision. "Leads" denotes
habituality.
 Dishonorable and disgraceful are based on
the sense of the community as perceived by
the judge. It is not limited to sexual
immorality.
 E.g., drug addict, alcoholic.
 Hence any dishonorable of disgraceful
conduct, provide that it characterizes the
mode of living of the child or descendant
disinherited, is a sufficient cause for
disinheritance.
(8.) Civil Interdiction.—
 Civil Interdiction is an accessory penalty that
goes w/ the principal penalty of reclusion
temporal, reclusion perpetua, and death.
 When the disinherited heir is convicted of a
crime which carries with it the penalty of civil
interdiction, the same is a ground of
disinheritance.
 Conviction is required.
Art. 920. The following shall be sufficient
causes for the disinheritance of parents or
ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their
children or induced their daughters to live a
corrupt or immoral life, or attempted against
their virtue;
(2) When the parent or ascendant has been
convicted of an attempt against the life of the
testator, his or her spouse, descendants, or
ascendants;
(3) When the parent or ascendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found to be false;
(4) When the parent or ascendant has been
convicted of adultery or concubinage with the
spouse of the testator;
(5) When the parent or ascendant by fraud,
violence, intimidation, or undue influence
causes the testator to make a will or to change
one already made;
(6) The loss of parental authority for causes
specified in this Code;
(7) The refusal to support the children or
descendants without justifiable cause;
(8) An attempt by one of the parents against the
life of the other, unless there has been a
reconciliation between them.
 Numbers 2, 3, 4, 5 and 7 are the same as the
grounds in Art. 919. Grounds:
(1.) Enumerates 3 grounds( conviction is not required):
a. Abandonment by parent of children.-- In
abandonment, there are two (2) views:
i. Strict.-- Leaving them alone while still
children under circumstances that would
endanger them.
ii. Accepted.-- Any case where a parent,
without justifiable cause, withholds his
care.
 In both instances, abandonment may be
based on failure to comply with Art 316( duty
to support, have them in their company,
educate and instruct them in keeping with their
means, etc.) It also includes those penalized in
Arts 276 and 277 of the RPC and Art 29 of PD
603.
 Will giving consent to adoption of child
constitute abandonment?
CHUA v CABANGBANG—the “To our mind, mere
acquiescence—without more—is not sufficient
to constitute abandonment. But the record
yields a host of circumstances which, in their
totality, unmistakably betray the petitioner’s
settled purpose and intention to completely
forego all parental responsibilities and forever
relinquish all parental claim in respect to the
child. xxx xxx xxx
“Indeed, the petitioner’s attitude, to our mind,
does nothing but confirm her intention to
abandon the child—from the very outset when
she allowed Villareal to give her away to the
Cabangbangs. It must be noted that the
abandonment took place when the child,
barely four months old, was at the most fragile
stage of life and needed the utmost care and
solicitude of her mother. And for five long
years thereafter, she did not once move to
recover the child. She continuously shunned
the natural and legal obligations which she
owed to the child; completely withheld her
presence, her love, her care, and the
opportunity to display maternal affection; and
totally denied her support and maintenance.
Her silence and inaction have been prolonged
to such a point that her abandonment of the
child and her total relinquishment of parental
claim over her, can and should be inferred as
a matter of law.”
 b. Induced to live a corrupt or immoral life.—
 Although the law seems to apply to
daughters only, Tolentino suggests that it
applies to other female descendants also.
 E.g. X has 2 granddaughters, who are
children of a predeceased child. He leads
one of them to a life of prostitution.
Certainly, he has committed such a
reprehensible act as would justify his
disinheritance by any of those
granddaughters.
 Article 231(2) and (4) of the FC make no
distinction. Therefore, sons and other male
descendants must as well be covered by
this provision as sexual offenses are
committed with equal frequency against
both males and females
Art. 231. The court in an action filed for the
purpose in a related case may also suspend
parental authority if the parent or the
person exercising the same:xxx
(2) Gives the child corrupting orders,
counsel or example; xxx
(4) Subjects the child or allows him to be
subjected to acts of lasciviousness.
c. Attempt against their virtues.—
 Mere attempt is enough as long as it can
be proven.
(6.) Loss of parental authority.—
 It must be evident that there must be an actual
loss of parental authority, otherwise the
testator cannot disinherit the parents or
ascendants.
 Not all causes but only those cause which
involve culpability on the part of the parents
will provide basis for disinheritance, viz:
a. judicial depravation of parental authority
on the ground of:
i. sexual abuse; (Article 232, FC)
ii. excessively harsh or cruel treatment of
the child.
iii. giving the child corrupting orders,
counsel, or example;
iv. compelling the child to beg;
v. subjecting thechild or allowing him to
be subjected to acts of lasciviousness
(Article 231, FC).
b. Judicial declaration of abandonment of the
child (Article 229, FC).
c. Upon conviction of the parent or the
person exercising the same of a crime
which carries with it the penalty of civil
interdiction. (Article 230, FC).
(8.) Attempt by a parent against the other.--
 The meaning of “attempt” is the same as its
meaning in Article 919(1).
 As an exception the child cannot anymore use
this ground to disinherit a parent when there is
reconciliation. This presupposes that there is
no disinheritance yet and this the testator
losses right to disinherit upon reconciliation.
 But what if already disinherited before
reconciliation? This is not clear. But it should
be considered revoked because in case of
doubt, resolve against disinheritance.
 This does not need conviction.
Art. 921. The following shall be sufficient causes
for disinheriting a spouse:
(1) When the spouse has been convicted of an
attempt against the life of the testator, his or
her descendants, or ascendants;
(2) When the spouse has accused the testator of a
crime for which the law prescribes
imprisonment for six years or more, and the
accusation has been found to be false;
(3) When the spouse by fraud, violence,
intimidation, or undue influence causes 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.
 Grounds and similarities found in Articles 919 and
920.
(1.) Attempt against the life. Both.
(2.) Groundless accusation. Both.
JAVIER v LUCERO-- but the real grievance of
petitioner is contained in the last portion of his
pleading, which says, "What Alfredo Javier
now tries to avoid is to support a woman who
has desperately tried to put him in jail, when
she accused him of bigamy." Such disgust is
easily understandable. But compliance with
 legal and contractual duties is not always
pleasant.
Under the New Civil Code articles 303 and
921 the wife forfeits her husband's support
after "she has accused (him) of a crime for
which the law prescribes imprisonment for six
years or more, and the accusation has been
found to be false." Admittedly, he married a
third time without the first marriage having
been dissolved; but he was cleared of the
bigamy charge for lack of criminal intent,
inasmuch as he believed his divorce obtained
in the U.S., had already ended his first
marriage to Salud r. Arca. Such acquittal is no
different from an acquittal on reasonable
doubt, which in our opinion, and in the opinion
of a member of the code Commission that
framed the New Civil code, would not be
ground to forfeit her right to support.
(3.) Fraud, violence, intimidation or undue
influence as regards the will. Both.
(4.) Given cause for legal separation.
 Decree of legal separation is not required.
Art. 55. A petition for legal separation may be filed
on any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a
common child, or a child of the petitioner:
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or
connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6)Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines
or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner, or;
(10) Abandonment of the petitioner by respondent
without justifiable cause for more than one year.
 Legal separation is not a ground. If there is
legal separation, you do not need to disinherit.
Disinheritance takes place by operation of law.
 As long as there is cause for legal separation,
you can disinherit provided you are the
offended spouse.
(5.) Given the ground for loss of parental
authority. Art. 920 only.
 Note however that in 921, giving grounds
therefore is sufficient even if there is no actual
loss of parental authority.
(6.) Unjustified refusal to give support. Both.
Art. 922. A subsequent reconciliation between the
offender and the offended person deprives the
latter of the right to disinherit and renders
ineffectual any disinheritance that may have been
made.
 Reconciliation-- either an express pardon
extended by the testator to the offending heir or
unequivocal conduct of the testator towards the
offending heir which reveals the testator’s intent to
forgive the offense.
 There is therefore a need to distinguish:
a. If express pardon
—A general pardon extended by the
testator on his deathbed to all who have
offended him will not suffice;
—it must be a pardon expressly and
concretely extended to the offender, who
accepts it. (6 Manresa, op. cit., p. 567)
b. If Implied pardon through conduct
—The intent to forgive must be clear in the
act of the testator. This is ultimately “a
question of fact (which) will be re solved,
in case of controversy, by the courts.
—Two persons who are at odds decide to
set aside their differences and to resume
their relations. They need not go back to
their old relation. A handshake is not
reconciliation. It has to be something
more. It must be clear and deliberate.
 EFFECT of reconciliation on disinheritance
a. If it occurs before disinheritance is made-- It
deprives the offended person of his right to
disinherit the offending person.
b. If it occurs after the disinheritance is made. --
It sets aside disinheritance already made.
 This is inconsistent with Art. 1033. In
disinheritance, reconciliation is sufficient. It need
 not be in writing. In unworthiness, however, it T Y
needs to be in writing.
A B
a. If the cause of unworthiness was made a
ground for disinheritance and there is
reconciliation, Art. 922 will govern, and NOT
a1 a2 b1
Art. 1033. In other words, the mere fact of
reconciliation extinguishes the unworthiness
a. T made a will giving Y, a friend, 1/2 of his
and NO written document is needed for a
estate. This covered the free portion. T validly
condonation.
disinherited A. Can a1 and a2 represent A?
Yes. Children of A can represent him as to the
b. If the cause for unworthiness was NOT made
legitime only because the free portion has
the ground for disinheritance, or there has
been given to B.
been no disinheritance at all, Art. 1033 will
apply. b. T validly disinherits A. T did not dispose of his
free portion. How much will the children of A
inherit from T? They will inherit A's share in the
Art. 923. The children and descendants of the legitime and in the free portion,
person disinherited shall take his or her place and
shall preserve the rights of compulsory heirs with
respect to the legitime; but the disinherited parent
shall not have the usufruct or administration of the Grounds Art. Art. Art.
property which constitutes the legitime. 919 920 921
Attempt Against Life   
 Representation in case of disinheritance—the
representative takes the place of the disinherited
Accusation   
heir not only with respect to the legitime, but also
to any intestate portion that the disinherited heir
would have inherited. Representation therefore Conviction of Adultery/  
occurs in compulsory succession and in intestate Concubinage
succession, but not in testamentary succession. Fraud, violence, intimidation, or   
undue influence causes to make or
 Right of representation in disinheritance— is change a will
granted only to descendants of disinherited Refusal to give support   
descendants. Thus, a disinherited child will be
represented by his children or other descendants. Maltreatment 
However, if the heir disinherited is a
parent/ascendant or spouse, the children or Leads a Dishonorable Life 
descendants of the disinherited heir do not have
any right of representation Civil Interdiction 

 Effect of disinheritance is not explicitly provided Abandonment/ Inducement/ 

for. Attempt
1. The total exclusion = loss of legitime, right to Loss of Parental Authority 
intestate succession, and of any disposition in
a prior will. Attempt by one of the parents 
against the life of the other
2. "Takes place only in legitime."-- The law Given Cause for legal separation 
assumes that free portion has been given
away. If not, include the intestate portion. Given Grounds for loss of parental 
authority
3. Representation.-- This is applicable only if the
person disinherited is a child or descendant.
Includes both legitime and intestate share of
the disinherited heir

 Example

Section 7.—
LEGACIES AND DEVISES.
 Definition in Art. 782 is not a good definition.
1. Article 660 (Spanish Code)
Legacy—testamentary disposition of
personal property by particular title
Devise—testamentary disposition of real
property by particular title.
2. Castan:
Legacy—testamentary disposition of specific
or generic personal property
Devise—testamentary disposition of specific
or generic real property.
 It is important, in defining a legacy or a devise, to
distinguish it from a testamentary disposition to an
heir. (Vide comments under Article 782) because of
the effects of preterition. Essentially, the difference is
that an heir receives an aliquot or fractional part of
the inheritance, whereas a legatee or devisee
receives specific or generic personalty or realty,
respectively.
Art. 924. All things and rights which are within the
commerce of man may be bequeathed or devised.
 What can be bequeathed or devised? Anything w/in
the commerce of man or w/c is alienable, provided it
should not impair the legitime.
Art. 925. A testator may charge with legacies and
devises not only his compulsory heirs but also
legatees and devisees.
 The latter shall be liable for the charge only to the
extent of the value of the legacy of the devise
received by them. The compulsory heirs shall not be
liable for the charge beyond the amount of the free
portion given them.
 This provision gives a misimpression because the
compulsory heir cannot be charged because it will
impair the legitime.
 The obligation becomes a sub-devise or sub-legacy
= mode imposed on the heir, devisee or legatee.
 GR: the estate has the burden of complying with the
legacy/devise.
EXP: the testator may impose the burden on a
testamentary heir or a legatee or devisee. If he
does so, then the heir, legatee, or devisee charged
will, if he accepts the disposition in his favor, be
bound to deliver the legacy or devise to the person
specified.
 This will be in the nature of a subsidiary legacy or
devise. (As far as the heir, legatee, or devisee
charged is concerned, it will be a mode)
 E.g., "I give A 1/4 of my estate but I impose upon him
the obligation to give B a car." If A wants to accept
the 1/4, he will have to give a car to B.
Art. 926. When the testator charges one of the
heirs with a legacy or devise, he alone shall be
bound.
Should he not charge anyone in particular,
all shall be liable in the same proportion in which
they may inherit.
 A compulsory heir as such cannot be burdened with
a legacy or devise because that would impair his
legitime. Only a testamentary heir can be so
burdened.
 The extent of the liability of the heir, legacy or
devisee is based on the value of the benefit.
 The compulsory heir charged with a sub-legacy are
liable in proportion not to how much each actually
inherits, but only in proportion to their institution to
the free disposal.
Art. 927. If two or more heirs take possession of
the estate, they shall be solidarily liable for the
loss or destruction of a thing devised or
bequeathed, even though only one of them should
have been negligent.
 This provides for solidary liability of heirs who take
possession of the estate, for the loss or damage
prior to the payment of debts.
 The liability imposed by this article is based on
malice, fault or negligence.
 This liability will also attach to the executor or
administrator in the proper cases.
 EXAMPLE: A and B, heirs, took possession of the
estate of their deceased father and used the family
car, which had been given as legacy to C. If through
A’s negligence, the car is destroyed, can C ask for
reimbursement of the whole value of the car from B?
o YES, the liability here is solidary. Of course, B
can later on demand reimbursement from A.
Art. 928. The heir who is bound to deliver the
legacy or devise shall be liable in case of eviction,
if the thing is indeterminate and is indicated only
by its kind.
 GR: it is the estate who is liable in eviction
 EXP: if the heir, devisee or legatee is charged.
 If the legacy is generic or indeterminate-- The heir
is held liable since in a generic legacy the heir is the
one who chooses which property to give.
 If the legacy is determinate or specific -- the heir
cannot be held liable for eviction since he has no
choice.
 EXAMPLE: An heir was ordered to give to A a legacy
of a car. If the car given to A is lost by A through
eviction (as when its real owner defeats A in a court
action) the heir is liable. Since the legacy was
generic, the heir should have selected a car he could
validly dispose of, and not a car belonging to
another.
 There is no warranty against eviction, whether the
legacy be specific or generic, if there were court
proceedings which ordered the giving of such legacy
or devise
Art. 929. If the testator, heir, or legatee owns only a
part of, or an interest in the thing bequeathed, the
legacy or devise shall be understood limited to
such part or interest, unless the testator expressly
declares that he gives the thing in its entirety.
 GR: If the testator owns only a part, the devisee or
legatee will only get that part. It applies whether or
not the testator knew that somebody else partly
owned the property
 EXP: Expressly declared by the testator in his will
with knowledge that he does NOT own the entire
thing.
1. Testator gives more-- E.g., Giving it in its
entirety. How? The estate should buy out the
rest of the property. If co-owners don't like to
sell, then the estate gives him the testator's
share plus the cash value of the rest of the
property.
2. Testator gives less-- Art. 794.
Art. 930. The legacy or devise of a thing belonging
to another person is void, if the testator
erroneously believed that the thing pertained to
him. But if the thing bequeathed, though not
belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the
disposition shall take effect.
 GR: disposition is void if the testator erroneously
believed that the thing was his because consent is
vitiated by mistake.
EXP: Acquires it after making a will
Art. 931. If the testator orders that a thing
belonging to another be acquired in order that it be
given to a legatee or devisee, the heir upon whom
the obligation is imposed or the estate must
acquire it and give the same to the legatee or
devisee; but if the owner of the thing refuses to
alienate the same, or demands an excessive price
therefor, the heir or the estate shall only be obliged
to give the just value of the thing.
 If the thing given as devise or legacy is not owned
by the testator at the time he made the will but he
orders his estate to acquire it, it is a valid legacy or
devise. The testator knew that he did not own it.
There is no mistake.
 QUERY: Supposing the testator knew that he did not
own it and he does not order his estate to purchase
it. ( Art. 930 or 931 does not apply) What is the
status of that legacy or devise?
o According to Tolentino, when the testator gave
the legacy or devise knowing that it is not his,
there is an implied order to the estate to
acquire it. Apply Art. 931 by analogy. At the
very least, there is a doubt and doubts are
resolved in favor of validity.
Art. 932. The legacy or devise of a thing which at
the time of the execution of the will already
belonged to the legatee or devisee shall be
ineffective, even though another person may have
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.
 Ineffective or void disposition—if the legacy of a
thing already belonging to the legatee or devisee.
 Valid disposition-- the testator expressly state that
the thing owned by the legatee or devisee be freed
of encumbrance.
Art. 933. If the thing bequeathed belonged to the
legatee or devisee at the time of the execution of
the will, the legacy or devise shall be without
effect, even though it may have been 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.
 This is the same situation as in Art. 932
 Void legacy/devise-- if the legatee or devisee owns
the thing bequeathed but alienates the thing after the
will is made.
 Valid legacy/devise -- If at the time the legacy or
devise is made, the thing did not belong to the
legatee or devisee but later on acquires it, then:
a. If he acquired it by GRATUITOUS TITLE, then
the legatee or devisee gets nothing.
b. If he acquired it by ONEROUS TITLE, then the
legatee or devisee has the right to be
reimbursed of the amount.
 If the acquisition by the legatee after the execution of
the will had been from the testator himself then the
legacy or devise is ineffective. (Art 957(2))
Art. 934. If the testator should bequeath or devise
something pledged or mortgaged to secure a
recoverable debt before the execution of the will,
the estate is obliged to pay the debt, unless the
contrary intention appears.
The same rule applies when the thing is
pledged or mortgaged after the execution of the
will.
Any other charge, perpetual or temporary,
with which the thing bequeathed is burdened,
passes with it to the legatee or devisee.
 The purpose of the payment of debt is so that the
legatee or devisee will get it free from encumbrance.
 GR: Free the property given from encumbrance such
as:
1. pledges
2. mortgages
3. any other encumbrance or lien (like
antichresis)
EXP: If the testator gives the property together with
the encumbrance.
 GR: Easement, usufruct passes to the legatee or
devisee.
EXP: if expressly stated by the testator to be freed.
Art. 935. The legacy of a credit against a third
person or of the remission or release of a debt of
the legatee shall be effective only as regards that
part of the credit or debt existing at the time of the
death of the testator.
In the first case, the estate shall comply
with the legacy by assigning to the legatee all
rights of action it may have against the debtor. In
the second case, by giving the legatee an
acquittance, should he request one.
In both cases, the legacy shall comprise all
interests on the credit or debt which may be due
the testator at the time of his death.
 Legacy of credit.-- takes place when the testator
bequeaths to another a credit against a third person.
In effect, it is a novation of the credit by the
subrogation of the legatee in the place of the original
creditor. E.g., "I give to A all the debts B owes me."
 Legacy of remission.-- a testamentary disposition
of a debt in favor of the debtor. The legacy is valid
only to the extent of the amount of the credit existing
at the time of the testator's death. In effect, the debt
is extinguished. E.g., "I give to A as legacy his debt
to me."
 Legacy applies only to the amounts outstanding at
the time of the testator's death.
 EXAMPLE: A owes B P1,000. B makes a will giving
as legacy to A the debt of A. After the will is made, A
pays B 500. How much is the legacy? P500 only and
not the whole P1000.
Art. 936. The legacy referred to in the preceding
article shall lapse if the testator, after having made
it, should bring an action against the debtor for the
payment of his debt, even if such payment should
not have been effected at the time of his death.
The legacy to the debtor of the thing
pledged by him is understood to discharge only
the right of pledge.
 The legacy is revoked if the testator files an action
(judicial suit) against the debtor.
 EXAMPLE: A bequeaths the credit he has against B
to B. After making the will, A sues B for collection. A
dies while the suit is pending. Does B have a right to
the credit? No. The filing of the action revoked the
legacy.
 The legacy to the debtor of the thing pledged by him
is understood to discharge only the right of pledge.
Art. 937. A generic legacy of release or remission
of debts comprises those existing at the time of
the execution of the will, but not subsequent ones.
 It is generic when no particular debt is mentioned,
i.e., when all debts are remitted. The law states
that in such a case, only those existing at the time
the will was made should be included and
subsequent credit are excluded.
 EXAMPLE: "I give to A all the credits I have
against B." When the will was made, B had 3
debts. After the will was made, B incurs 2 more
debts. Which ones can A claim?
o GR: Only the first 3.
o EXP: When the testator expressly provides
otherwise(After acquired properties, Art. 793)
Art. 938. A legacy or devise made to a creditor
shall not be applied to his credit, unless the
testator so expressly declares.
In the latter case, the creditor shall have
the right to collect the excess, if any, of the credit
or of the legacy or devise.
 GR: Legacy or devise is not considered payment of
a debt. Because if it is, then it would be a useless
legacy or devise since it will really be paid by the
estate.
EXP: If the testator provides otherwise.
 EXAMPLE:
1. A owes B 10M. In his will, A gave B a legacy of
10M. How much will B get all in all? 20M
unless the estate is exhausted after the
payment of debts. It must be noted that a
legacy or a devise is supposed to be a gift, not
a payment. It is an act of liberality on the part
of the testator, and not an obligation. A
different rule of course subsists when the
testator expressly so declares.
2. A owes B 10M. But C owes A 12M. If A gives
his credit of 12M as a legacy to B, and
expressly declares that the legacy should be
applied to his debt, there will be payment of
10M and a true legacy of 2M out of the
balance.
Art. 939. If the testator orders the payment of what
he believes he owes but does not in fact owe, the
disposition shall be considered as not written. If as
regards a specified debt more than the amount
thereof is ordered paid, the excess is not due,
unless a contrary intention appears.
The foregoing provisions are without
prejudice to the fulfillment of natural obligations.
 This is a testamentary instruction to pay a debt.
This is not a testamentary disposition but merely a
direction to discharge a civil obligation. In fact, an
instruction to pay a non-existing debt should be
disregarded, because this would be solution
indebiti. Further, instruction to pay more than what
is due is effective only as to what is due, unless
the bigger amount specified constitutes a natural
obligation.
 EXAMPLE:
a. A believes he owes B 10M. He really does not
owe B anything, however. If A orders the
payment of the 10M, the disposition is
considered not written. B cannot claim that the
10M was given to him by way of legacy.
b. A thinks he owes B 10M, but the debt is really
8M. The 10M is ordered paid in the will. B will
be paid the 8M and will not get the extra 2M as
legacy unless a contrary intention applies.
c. A owed B 10M but the debt has already
prescribed. Nevertheless, A, recognizing his
moral duties, ordered the payment of the 10M
knowing that the debt had already prescribed.
Will B get the 10M, even if the debt no longer
exists? Yes, for this is an instance of a natural
obligation.
 EXP: Natural obligations are governed by Arts.
1423 to 1430 of the Civil Code.
Art. 940. In alternative legacies or devises, the
choice is presumed to be left to the heir upon
whom the obligation to give the legacy or devise
may be imposed, or the executor or administrator
of the estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may
have been given the choice, dies before making it,
this right shall pass to the respective heirs.
Once made, the choice is irrevocable.
In alternative legacies or devises, except as
herein provided, the provisions of this Code
regulating obligations of the same kind shall be
observed, save such modifications as may appear
from the intention expressed by the testator.
 Alternative legacies/devises—One which provides
that, among several things mentioned, only one is to
be given.
 GR: the following has the right of choice because by
analogy, these parties are in the position of the
debtor.
a. Estate, through the executor or administrator,
in a direct legacy/devise.
b. Heir, Legatee or Devisee in a subsidiary
legacy/ devise.
 EXP: the legatee/devisee (or indeed any other
person), if the testator so provides.
 If the person who is to choose dies before choice is
made, there is transmissibility of the right to choose:
1. if the choice belonged to executor or
administrator— the right is transmitted to his
successor in office.
b. if the choice belongs to an heir, legatee, or
devisee—the right is transmitted to his own
heirs.
 Once the choice has been made, it is irrevocable
(because in such a case, the obligation has
ceased to be alternative, and has become a simple
one) unless of course there has been fraud,
intimidation, or any of the other causes vitiating
consent.
  Provisions suppletorily governing—Articles 1199-
1205, on alternative obligations.
 EXAMPLE: A orders B, a devisee, to give C a
house or a car. B is given the right to choose. If B
dies before making the choice, but after A’s death
the right to make the choice is not considered
personal and said right is, therefore, transmitted to
B’s own heirs.
Art. 941. A legacy of generic personal property
shall be valid if there be no things of the same kind
in the estate.
A devise of indeterminate real property
shall be valid only if there be immovable property
of its kind in the estate.
The right of choice shall belong to the
executor or administrator who shall comply with
the legacy by the delivery of a thing which is
neither of inferior nor of superior quality.
 The law distinguishes between generic personal and
generic real property — thus:
1. If generic personal — valid even if there be
none in the estate. (Here, it is evident that the
estate is being required to get or buy one.)
2. If generic real — not valid if there be none of
its kind in the estate.
EXP: Ordered to acquire one’
 Why the difference in the rules? Historically, in
Roman Law, personal property was treated with
more liberality because they were easier to acquire
and dispose.
 The right of choice(transmissibility of right to
choose)
GR: executor or administrator (successor in office)
EXP: charged to the heir, legatee or devisee (heirs)
 EXAMPLE:
1. I hereby give to L one automobile. This is valid
even if there be none in the estate. The
executor or administrator must obtain one of a
middle quality.
2. I hereby give to X 1- hectare of agricultural
land. If there be no land in the estate, or if the
area thereof be insufficient, the device is
considered void.
Art. 942. Whenever the testator expressly leaves
the right of choice to the heir, or to the legatee or
devisee, the former may give or the latter may
choose whichever he may prefer.
 The heir, or legatee or devisee, designated by the
testator has the right to choose whichever he may
prefer.
Art. 943. If the heir, legatee or devisee cannot make
the choice, in case it has been granted him, his
right shall pass to his heirs; but a choice once
made shall be irrevocable.
 Transmissibility of right of choice and its nature
being irrevocable.
Art. 944. A legacy for education lasts until the
legatee is of age, or beyond the age of majority in
order that the legatee may finish some
professional, vocational or general course,
provided he pursues his course diligently.
A legacy for support lasts during the
lifetime of the legatee, if the testator has not
otherwise provided.
If the testator has not fixed the amount of
such legacies, it shall be fixed in accordance with
the social standing and the circumstances of the
legatee and the value of the estate.
If the testator during his lifetime used to
give the legatee a certain sum of money or other
things by way of support, the same amount shall
be deemed bequeathed, unless it be markedly
disproportionate to the value of the estate.
Art. 945. If a periodical pension, or a certain
annual, monthly, or weekly amount is bequeathed,
the legatee may petition the court for the first
installment upon the death of the testator, and for
the following ones which shall be due at the
beginning of each period; such payment shall not
be returned, even though the legatee should die
before the expiration of the period which has
commenced.
 Demandability of pension
1. Upon testator’s death, he can compel the
estate.
2. Must wait until the estate is settled before one
can demand.
 EXAMPLE: Testator dies on March 1, 1996. He has
a will giving A a monthly pension of P1,000.
1. If we follow Art. 945 literally, A can compel the
estate to give him his pension from March 1,
1996
2. In reality, A has to wait. The estate should be
settled first (will probated, payment of debts,
determine if legacy is effectual, etc.) After
settlement of the estate, A can demand his
legacy and its effectivity will retroact to March
1, 1996.
 DE Upon Upon death Upon death
MA death of of the of the
ND the testator, testator, and
AB testator, unless at the
ILI unless provided beginning of
TY provided otherwise each period
otherwise succeeding

Art. 946. If the thing bequeathed should be subject

to a usufruct, the legatee or devisee shall respect
such right until it is legally extinguished.

 This is the same as in Art. 934, par. 3.

PARA EDUCA SUPPORT PENSION Art. 947. The legatee or devisee acquires a right to
METE TION the pure and simple legacies or devises from the
R death of the testator, and transmits it to his heirs.
D Age of Legatee’s According to
U majority lifetime, the testator. Art. 948. If the legacy or devise is of a specific and
R Completio unless the determinate thing pertaining to the testator, the
A n of testator has legatee or devisee acquires the ownership thereof
T profession provided upon the death of the testator, as well as any
I al, otherwise growing fruits, or unborn offspring of animals, or
O vocational uncollected income; but not the income which was
N or general due and unpaid before the latter's death.
course, From the moment of the testator's death,
whichever the thing bequeathed shall be at the risk of the
comes legatee or devisee, who shall, therefore, bear its
later, for loss or deterioration, and shall be benefitted by its
as long as increase or improvement, without prejudice to the
the responsibility of the executor or administrator.
legatee
pursues
his studies Art. 949. If the bequest should not be of a specific
diligently and determinate thing, but is generic or of quantity,
A Amount fixed by the fixed by the its fruits and interests from the time of the death of
M fixed by testator testator the testator shall pertain to the legatee or devisee
O the if the testator has expressly so ordered.
U testator. Amount Amount
N That  Articles 947 to 949.-- Rules on Demandability, Fruits
which the which the
T which is and Ownership.
testator testator
proper as during his during his
determine lifetime gave lifetime gave  Demandability depends on whether:
d by social to the to the legatee
standing legatee by by way of 1. PURE AND DETERMINATE.-- Upon the
and way of support, testator's death. (Articles 947, 945.)
circumsta support, unless
nces of unless disproportion 2. PURE AND GENERIC—upon the testator’s
the disproportion ate to the FP death
legatee ate to the FP
and value 3. WITH A SUSPENSIVE TERM.-- Upon arrival
of the free of the term
Reasonable Reasonable
portion amount amount
4. WITH A SUSPENSIVE CONDITION-- Upon
based on based on
the happening of the condition.
social social
standing and standing and
circumstance circumstance  Ownership
s of the s of the
legatee and legatee and 1. PURE AND DETERMINATE- - Upon the death
value of the value of the of the testator. (Art. 777.)
FP. FP.
2. PURE AND GENERIC-- It depends:
 (i) if the thing comes from the testator's
estate, upon the testator's death
(ii) if the thing has to be acquired from a
third person, upon the acquisition of the
thing.
3. WITH A SUSPENSIVE TERM-- Upon arrival
of the term but the right to it vests upon the
testator's death because the effect retroacts.
4. WITH A SUSPENSIVE CONDITION-- Upon
the testator's death because the effect
retroacts once the condition is fulfilled.
 Fruits w/c depends on whether:
1. PURE AND DETERMINATE- - Upon the
testator's death. (Art. 948.)
2. PURE AND GENERIC.-- Upon determination
of what is to be delivered to the devisee or
legatee unless the testator provides otherwise.
(Art. 949.)
3. WITH A SUSPENSIVE TERM.-- Upon arrival
of the term.
4. WITH A SUSPENSIVE CONDITION-- Upon
the happening of the condition, unless the
testator provides otherwise.
Art. 950. If the estate should not be sufficient to
cover all the legacies or devises, their payment
shall be made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to
be preferential;
(3) Legacies for support;
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate
thing which forms part of the estate;
(6) All others pro rata.
 Order of preference—if the estate is sufficient this
does not apply.
 This conflicts with Art. 911 which provides that-- "If
you reduce legacies, reduce all except those
preferred according to the testator." It may look
inconsistent with the rules laid down in Art. 950.
 The solution according to commentators.-- Give
each its own sphere of operation, thus:
1. Article 911 will apply if reductions have to be
made because legitimes have been impaired
as the legacies/devices exceed the free
portion.
2. If for any other reason, follow Art. 950. For
example, apply it if there are no compulsory
heirs.
 More specifically, Art. 950 applies in all cases
where the conflict is exclusively among the
legatees and devisees themselves, such as
when:
1. There are no compulsory heirs and the entire
estate is distributed by the testator as
legacies and devises;
2. There are compulsory heirs, but their legitime
has already been provided for by the testator
and there are no donations inter vivos.
Art. 951. The thing bequeathed shall be delivered
with all its accessions and accessories and in the
condition in which it may be upon the death of the
testator.
 This article provides that al the obligation to deliver
the accessions and accessories exist even if the
testator does not explicitly provide for it. This is the
same rule in Art. 1166. In short, the accessory
follows the principal.
Art. 1166. The obligation to give a determinate thing
includes that of delivering all its accessions and
accessories, even though they may not have been
mentioned
 The reckoning period is the death of the testator
because that is when the successional rights are
vested. That is why the thing must be delivered in
the condition which it is at that time.
Art. 952. The heir, charged with a legacy or devise,
or the executor or administrator of the estate, must
deliver the very thing bequeathed if he is able to
do so and cannot discharge this obligation by
paying its value.
Legacies of money must be paid in cash,
even though the heir or the estate may not have
any.
The expenses necessary for the delivery of
the thing bequeathed shall be for the account of
the heir or the estate, but without prejudice to the
legitime.
 GR: must deliver the very thing bequeathed
 EXP: If the grantee accepts a legacy other than the
property specified, or other than money, this is all
right. And to satisfy money legacies if there be none
in the estate, personal property, and later, real
property may be sold.
 Suppletorily, read Article 1244 as to rule of identity in
the performance of obligations
 Art. 1244. The debtor of a thing cannot compel the
creditor to receive a different one, although the latter
may be of the same value as, or more valuable than
that which is due.
In obligations to do or not to do, an act or
forbearance cannot be substituted by another act or
forbearance against the obligee's will.
Art. 953. The legatee or devisee cannot take
possession of the thing bequeathed upon his own
authority, but shall request its delivery and
possession of the heir charged with the legacy or
devise, or of the executor or administrator of the
estate should he be authorized by the court to
deliver it.
 Although the efficacy of a legacy or devise vests
upon the death of the testator, actual delivery does
not really take place at that time. Note the requisite
preliminary procedures before actual distribution of
the estate. Thus, debts have to be paid, legitimes to
be determined, testamentary dispositions, including
legacies and devises have to be computed lest they
impair the legitime. It is only after these steps have
been complied with that the beneficiaries can take
possession. In fact, a request for delivery is
necessary
Art. 954. The legatee or devisee cannot accept a
part of the legacy or devise and repudiate the
other, if the latter be onerous.
Should he die before having accepted the
legacy or devise, leaving several heirs, some of the
latter may accept and the others may repudiate the
share respectively belonging to them in the legacy
or devise.
Art. 955. The legatee or devisee of two legacies or
devises, one of which is onerous cannot renounce
the onerous one and accept the other. If both are
onerous or gratuitous, he shall be free to accept or
renounce both, or to renounce either. But if the
testator intended that the two legacies or devises
should be inseparable from each other, the legatee
or devisee must either accept or renounce both.
Any compulsory heir who is at the same
time a legatee or devisee may waive the
inheritance and accept the legacy or devise, or
renounce the latter and accept the former, or waive
or accept both.
 Rules on Acceptance and Repudiation of
Legacies/Devises:
 GR: Acceptance may be total or partial.
1. If both gratuitous—the recipient may
accept or renounce either or both.
2. If both onerous—same rule as above.
 EXP:
1. If the legacy/devise is partly onerous and
partly gratuitous, the recipient cannot
accept the gratuitous part and renounce
the onerous part. Any other combination
however is permitted.
2. If testator intended that the two legacies
or devises should be inseparable from
each other.
 In cases of legacies or devises in favor of a
compulsory heir, the recipient may :
1. WAIVE and ACCEPT-- the legitime and the
legacy or devise.
2. RENOUNCE and ACCEPT-- the legitime and
the legacy or devise.
3. WAIVE or ACCEPT both
 If the legatee/devisee dies before accepting or
renouncing, his heirs shall exercise such right as to
their pro-indiviso share, and in the same manner as
outlined above.
 EXAMPLE
1. (954) — X was given a devise of a house with
the stipulation that the lower story was being
given gratuitously, but the upper story would
be given on condition that X would not marry
Y.
o X is not allowed to accept the lower story,
and renounce the upper one since the
latter is onerous. The reason for the law is
the presumption that the testator would not
have given the devise of the gratuitous
lower story without the onerous upper
story.
2. (954) — In the preceding example, if X dies
before being able to accept, and he leaves two
heirs.
o A and B, each may accept or repudiate his
share.
3. (955) — A in his will gave to B a car and a
house, the house being given with a condition.
In the same will, C was given a diamond ring
and a piece of land, to each of which was
attached a condition.
o B is not allowed to renounce the house
and at the same time accept the car. C is
allowed to accept both the ring and the
land; or to renounce the land and accept
the ring; or to renounce the ring and
accept the land.
o But of course if A intended that the ring
and the land be inseparable from each
other, C must either accept both or
renounce both. This intent of the testator,
 to be given effect must appear in the will,
either expressly or impliedly, from the
context.
Art. 956. If the legatee or devisee cannot or is
unwilling to accept the legacy or devise, or if the
legacy or devise for any reason should become
ineffective, it shall be merged into the mass of the
estate, except in cases of substitution and of the
right of accretion.
 In case of incapacity or repudiation or in case it
becomes ineffective,
GR: the legacy or the devise will descend by
intestate succession
EXP: there is substitution or accretion.
Art. 957. The legacy or devise shall be without
effect:
(1) If the testator transforms the thing
bequeathed in such a manner that it does not
retain either the form or the denomination it
had;
(2) If the testator by any title or for any cause
alienates the thing bequeathed or any part
thereof, it being understood that in the latter
case the legacy or devise shall be without
effect only with respect to the part thus
alienated. If after the alienation the thing
should again belong to the testator, even if it
be by reason of the 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 article 928.
 Grounds for the revocation of legacy or devise
--takes effect by operation of law.
1. Transformation of the thing—with respect to
form, external appearance, denomination,
name which it is known.
 EXAMPLE
a. "I bequeath my ring to B." After
making the will, the ring is melted and
turned into a pendant.
b. When a coconut plantation is
transformed into a fishpond.
2. Alienation—when the testator donates or
sells the property bequeathed, there is implied
revocation of the disposition
 EXP:
a. Pacto de retro and reacquired during
the testator's lifetime
b. Vitiated consent.-- Not revoked
because there was no intention to
revoke
c. All other reasons-- Revoked.
3. Total lost.—Fortuitous loss after the testator’s
death will not constitute revocation, because
legally the disposition takes effect upon death
Art. 958. A mistake as to the name of the
thing bequeathed or devised, is of no
consequence, if it is possible to identify the thing
which the testator intended to bequeath or devise.
 This is similar to Art. 789.
 EXAMPLE: “My only car, a Ford Expedition Limited
2003” but stated you have only one car which is a
Ford Expedition Limited 2002. Provided that
identification of testator’s intention is possible, the
typographical error in this case would not matter.
Art. 959. A disposition made in general terms in
favor of the testator's relatives shall be understood
to be in favor of those nearest in degree.
 This does not refer to legacies and devises. This is
the Rule of Proximity.
 The relatives must be within the fifth degree, since
persons farther than this are no longer considered
relatives.
 This article is misplaced. This should be in the
Chapter on Institution of Heirs this applies only in
favor of the testator's own relatives.

Subsection 8.—
ALLOWANCE AND DISALLOWANCE OF WILLS
 Probate is a special proceeding to establish the
validity of the will. Probate of a will is mandatory.
Since probate proceedings are in the nature of a
proceeding in rem, the decree of probate is held
binding on all persons in interest whether they
appear to contest the probate or not. The admission
of a will to probate has all the effects of a judgment
and is entitled to full faith and credit in other courts.
 Reprobate is a special proceeding to establish the
validity of a will proved in a foreign country.
 Issues to be resolved by the probate court:
1. Prove that instrument submitted is the will of
the testator
2. Executed according to the formalities required
by law
3. That the testator had or possessed the
testamentary capacity at the time of execution
 Questions to be determined by the probate
court:
1. QUESTION OF IDENTITY-- Whether the
instrument offered for probate is the last will
and testament of the decedent
2. QUESTION OF DUE EXECUTION-- Whether
the will was executed according to the
formalities required by law
3. QUESTION OF TESTAMENTARY
CAPACITY-- Whether the testator had
testamentary capacity at the time of execution
Art. 838. No will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself ma, during his lifetime,
petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance
of wills after the testator's death shall govern.
The Supreme Court shall formulate such
additional Rules of Court as may be necessary for
the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of
the will, either during the lifetime of the testator or
after his death, shall be conclusive as to its due
execution.
 There are 2 kinds of probate:
1. ANTE-MORTEM during the testator’s lifetime,
at his instance
2. POST-MORTEM after the testator’s death, at
the instance of any interested party.
 Effect: It is subject to appeal but once final, it
becomes conclusive or res judicata as to its due
execution and testamentary capacity of the
testator (as to the will’s extrinsic or formal validity
only)
 Advantages of Ante-mortem Probate:
i. It eases the mind of the testator
ii. There is opportunity to change
iii. You can prove the capacity of the testator
 Disadvantage of Ante-mortem Probate--
superfluous, futile because the testator can easily
make a subsequent will revoking it. So unless the
testator is very sure, it might be useless to have an
ante-mortem probate.
 The issue in probate is the extrinsic or formal
validity of the will.
o GR: Intrinsic or substantive validity is not
in issue.
o EXP: There is an intrinsic defect on the
face of the will.
NEPOMOCENO v. CA.-- In the case, the testator left
his entire estate to his legal wife and children
but devised the free portion to his common-law
wife. When the common-law wife sought the
probate of the will, the CA declared the will
valid, but held the devise to the common-law
wife null and void for being contrary to Art. 739
of the NCC. In effect, the court ruled on the
intrinsic validity of the will in the probate
proceedings. Was the holding of the CA
correct? The SC held that it was correct.
Although the general rule is that only extrinsic
validity could be at issue during the probate,
this rule is not absolute. Given exceptional
circumstances, the probate court may do what
the situation constrains it to do by passing
upon certain provisions of the will. Clearly, the
devise for the common-law wife was void. The
 CA had the authority to rule on such nullity. It
would be practical for the court to rule on such
an obvious matter. Otherwise, the probate
might become an idle ceremony if on its face it
appears to be intrinsically void.
GALLANOSA v ARCANGEL- Probate are
proceedings in rem and are mandatory. If the
probate is allowed, it becomes conclusive as
to its extrinsic validity which provides that:
1. The testator was of sound mind when he
executed the will.
2. The testator was not acting under duress or
fraud-- his consent was not vitiated
3. The will was executed in accordance w/ the
formalities required by law
4. The will is genuine and not a forgery
 Query:
Q: What if after the probate court becomes final a
person was charged w/ forgery of the will, can
he be convicted?
A: No, the probate is conclusive as to the will's
genuineness even against the state.
DE LA CERNA v REBECA-POTOT.-- This case
involves a joint will executed by a husband
and a wife. The husband died before the wife
and the will was probated. Now, the wife died
and the testamentary heirs sought the probate
of the will. Will the will be probated? No. The
SC held that the first probate was valid only as
to the share of the husband. However, such
earlier probate cannot be applied for the share
of the wife because she was still living at the
time the first probate was made. As such,
there is no res judicata as to the share of the
wife. As to the wife, since it is against a joint
will, then it is void and her property will pass
by intestacy.
Art. 839. The will shall be disallowed in any of the
following cases:
(1) If the formalities required by law have not
been complied with;
(2) If the testator was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
(3) If it was executed through force or under
duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
(5) If the signature of the testator was procured
by fraud;
(6) If the testator acted by mistake or did not
intend that the instrument he signed should
be his will at the time of affixing his signature
thereto.
 This enumeration is exclusive. They either make
the will void or valid. There is no such thing as a
voidable will.
3. Formalities.-- Art. 804, 805-809, 810-814
4. Insanity.-- Art. 799
5. Force/ violence-- Art. 1335 par. 1
Duress/intimidation-- Art. 1335 par. 2
Art. 1335. There is violence when in order to
wrest consent, serious or irresistible force is
employed.
Art. 1335. xxx There is intimidation when one of the
contracting parties is compelled by a reasonable and
well-grounded fear of an imminent and grave evil upon
his person or property, or upon the person or property
of his spouse, descendants or ascendants, to give his
consent.
To determine the degree of intimidation, the age,
sex and condition of the person shall be borne in
mind.
6. Undue and Improper pressure and influence.--
Art. 1337
Art. 1337. 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 and 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.
7. Fraud.-- Art. 1338
Art. 1338. 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.”
8. Mistake.-- Art. 1331.
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.”

Chapter 3
LEGAL OR INTESTATE SUCCESSION
Section 1.—
General Provisions.
 Intestacy.-- That which takes place by operation
of law in default of compulsory and testamentary
succession. It is the least preferred among the
three modes of succession, but is the most
common. It takes place only: (a) insofar as it does
not impair legitimes; (b) only if there is no will
disposing of the property.
 Legal succession is that kind of succession
prescribed by the law (and presumed by it to be
the desire of the deceased), which takes place
when the expressed will of the decedent has not
been set down in a will.
 Basic Rules of Intestacy
1. RULE OF RELATIONSHIP-- Intestate heir
must be related to the deceased. There are
four kinds:
a. FAMILY-- Jus familial, ascendants and
descendants in the direct line.
b. BLOOD-- Jus sanguinis, collaterals up to
the fifth degree.
c. SPOUSE-- Jus conjugis.
d. STATE-- Jus imperii, the right of
sovereignty.
2. RULE OF PREFERENCE OF LINES-- This is
also true in compulsory succession. The
descending is preferred over the ascending.
3. RULE ON PROXIMITY OF DEGREE.-- This
rule excludes the further. (This qualifies)
representation.
4. RULE OF EQUALITY AMONG RELATIVES
OF THE SAME DEGREE.-- This is corollary to
the third. Exceptions to the rule:
a. RULE ON PREFERENCE OF LINES-- Art.
928 Descending is preferred over
ascending such as when decedent is
survived by a father and son, the father is
excluded.
b. DISTRIBUTION BETWEEN LEGITIMATE
AND ILLEGITIMATE CHILDREN-- 2 : 1,
although in the same degree.
c. RULE OF DIVISION BY LINE IN THE
ASCENDING LINE—exclusivity in the
maternal/ paternal line
d. RELATIVES OF THE FULL AND HALF
BLOOD.-- Art. 1008 (does not refer to
blood cousins, because they inherit
equally.)
e. BY REPRESENTATION-- Because of this,
they inherit in different shares.
f. Concurrence of nephews/ nieces and
uncles/ aunts in Art 1009.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void
will, or one which has subsequently lost its
validity;
(2) When the will does not institute an heir to, or
dispose of all the property belonging to the
testator. In such case, legal succession shall
take place only with respect to the property of
which the testator has not disposed;
(3) If the suspensive condition attached to the
institution of heir does not happen or is not
fulfilled, of if the heir dies before the testator,
or repudiates the inheritance, there being no
substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this
Code.
 This enumeration is not exclusive. There are
other causes.
(1.) Three instances:
a. Without a will
b. Void will
c. Revoked or Ineffective will
 (2.) There is no heir, no legatee, no devisee or
when testator only appoints an executor or
when there is partial disposition. Intestacy
controls the remainder.
(3.) Three Instances:
a. If the suspensive condition does not
happen
b. in case of predecease
c. in case of repudiation
EXP: if there is substitution or accretion
(4.) Incapacity of instituted heir
(5.) Other cause:
a. The fulfillment/ expiration of the resolutory
term.
b. Impossibility of ascertaining provisions
containing the express will of the testator.
 Kinds
1. TOTAL - No testamentary disposition at all.
2. PARTIAL - A will that disposes of part of the
free portion
Art. 961. In default of testamentary heirs, the law
vests the inheritance, in accordance with the rules
hereinafter set forth, in the legitimate and
illegitimate relatives of the deceased, in the
surviving spouse, and in the State.
 Order of Intestate Succession:
1. Legitimate relationship
2. Illegitimate Relationship
3. Surviving Spouse
4. State
 Intestate succession is prescribed by law. Any
agreement/ partnership contract entered into by
the parties cannot affect the hereditary rights
which belong to the relatives of the deceased
predecessor-in-interest nor alter the order
prescribed by law for intestate succession.
 Intestate Heirs
1. Legitimate children or descendants
2. Illegitimate children or descendants
3. Legitimate parents or ascendants
4. Illegitimate parents
5. Surviving spouse
6. Brothers and sisters, nephews and nieces
7. Other collateral relatives up to the fifth degree
8. State.
o Numbers 1 to 5 are both compulsory and
intestate heirs.
o Numbers 6 to 8 are intestate heirs.
 May Intestate Heirs be Disinherited?
(a) If the intestate heirs are also compulsory heirs
(e.g., legitimate children) — YES.
(b) If the intestate heirs are NOT compulsory
heirs (e.g.brothers) — No. However, such
intestate heirs may be excluded, expressly or
impliedly (no grounds needed)
 EXPRESS EXCLUSION
 A testator with 2 brothers X and Y
makes a will with this single provision:
“I hereby exclude my brother X.” While
Y is not being instituted, it is clear that
the whole intestate estate should go to
Y because of X’s express exclusion.
 IMPLIED EXCLUSION
 This takes place when somebody else
is instituted, leaving nothing for the
intestate heirs.
Art. 962. In every inheritance, the relative nearest
in degree excludes the more distant ones, saving
the right of representation when it property takes
place.
Relatives in the same degree shall inherit
in equal shares, subject to the provisions of article
1006 with respect to relatives of the full and half
blood, and of article 987, paragraph 2, concerning
division between the paternal and maternal lines.
 Rule of Proximity: This rule is best explained by the
phrase “the nearer excludes the farther.” The nearer
relatives will exclude the more distant ones on the
basic theory that the testator will have more affection
for those nearer to him than those farther from him.
 Rule of Equality: If two particular persons are of the
same degree or rank, and they inherit from one and
the same person, they will inherit in the same
amounts, without any discrimination as to any other
aspect.
o EXP:
1. Division in the ascending line between
maternal and paternal line.
2. Division between relatives of the full and
half-blood
3. Division in cases of representation
o the rule of preference of lines over rule of
proximity or equality
o Proximity modified by representation.

Subsection 1.—
RELATIONSHIP
 Relationship: It is a kinship or a legal tie uniting a
person to other persons. When this tie, vinculum or
connection is established by community of origin
among persons related by blood, the relationship is
called by consanguinity. When this tie, vinculum or
connection is established from persons related by
marriage, the relationship is called by affinity.
Art. 963. Proximity of relationship is determined by
the number of generations. Each generation forms
a degree.
Art. 964. A series of degrees forms a line, which
may be either direct or collateral.
A direct line is that constituted by the
series of degrees among ascendants and
descendants.
A collateral line is that constituted by the
series of degrees among persons who are
ascendants and descendants, but who come from
a common ancestor.
Art. 965. The direct line is either descending or
ascending.
The former unites the head of the family
with those who descend from him. The latter binds
a person with those from whom he descends.
Art. 966. In the line, as many degrees are counted
as there are generations or persons, excluding the
progenitor.
In the direct line, ascent is made to the
common ancestor. Thus, the child is one degree
removed from the parent, two from the
grandfather, and three from the great-grandparent.
In the collateral line, ascent is made to the
common ancestor and then descent is made to the
person with whom the computation is to be made.
Thus, a person is two degrees removed from his
brother, three from his uncle, who is the brother of
his father, four from his first cousin, and so forth.
Art. 967. Full blood relationship is that existing
between persons who have the same father and
the same mother.
Half blood relationship is that existing
between persons who have the same father, but
not the same mother, or the same mother, but not
the same father.
 Two basic concepts in relationship
1. CONCEPT OF DEGREE-- This is the method
of computing the proximity of relationship.
Every degree is one generation.
a. Direct line -- NO LIMIT to the number of
degrees either ascending or descending
b. Collateral line – extends only to the 5TH
DEGREE of collateral relationship
2. CONCEPT OF LINES-- These are relative
positions in the family between 2 persons.
a. Direct—Article 964, par. 2
o descending—Article 965, par. 2
o ascending—Article 965, par. 3
b. Collateral—Article 964, par. 3.
o Direct and Collateral.—Importance of
distinction: The direct is preferred over
the collateral.
o Descending direct and ascending
direct.—Importance of distinction: The
descending is preferred over the
ascending.
 Full and half-blood relations
a. Brothers and sisters. (Art. 1006.)—share in
intestate succession of full blood is twice as
much as the half-blood (2 : 1)
b. Nephews and nieces. (Art. 1008)—the same
share 2 : 1
Q TW H
X A B Y
C D E F
G H
 The following are the relationships established by
the above situation:
1. Blood relationship: All the descendants from X
to A to B to G and H are related by
consanguinity, the same blood running through
their veins.
2. Direct descending line: The line from T to B to
E to G is direct descending line. To determine
the degree, count the generations then
subtract one; hence B is 1 degree from T, E is
2 degrees, etc.
3. Direct ascending line: The line from H to F to B
to W is the direct ascending line.
4. Collateral line: The line from C and D, E and F
is the collateral line. To count degrees in the
collateral line, ascend to the common ancestor
and then descend to the person involved, each
generation being 1 degree.
5. Full blood; half blood relationship: A and B are
full blood brothers; B and Y are half-blood
brothers.

Art. 968. If there are several relatives of the same
degree, and one or some of them are unwilling or
incapacitated to succeed, his portion shall accrue
to the others of the same degree, save the right of
representation when it should take place.
 Basic proposition advanced by this provision is that
the Right of Representation is superior to the Right
of Accretion.
Subsection 2.—
RIGHT OF REPRESENTATION
Art. 970. Representation is a right created by
fiction of law, by virtue of which the representative
is raised to the place and the degree of the person
represented, and acquires the rights which the
latter would have if he were living or he could have
inherited.

 In case of predecease or incapacity, representation,  The better term is successional subrogation, as

if proper, will prevent accretion from occurring
 if the vacancy results from repudiation or
renunciation, there is no representation, only
accretion, the right of accretion shall always take
place.
JBL Reyes calls it-- It is a process whereby one
person takes another's place. The representative is
subrogated (takes the place) of the person
represented.
 Instances when representation operates

Art. 969. If the inheritance should be repudiated by 1. PREDECEASE-- Articles 982, 975.
the nearest relatives, should there be one only, or
by all the nearest relatives called by law to 2. DISINHERITANCE-- Art. 923.
succeed, should there be several, those of the
following degree shall inherit in their own right and 3. INCAPACITY or UNWORTHINESS to
cannot represent the person or persons succeed-- Art. 1035.
repudiating the inheritance.
 Kinds of succession representation operate:
 2 modes of inheriting
1. COMPULSORY succession
1. PER CAPITA—as a matter of right, if 2. INTESTATE succession
repudiation of all the heirs called to succeed.
 Instances when representation is not applicable:
2. PER STIRPES—in representation, the
representative or representatives receive only 1. TESTAMENTARY SUCCESSION. That will be
what the person represented would have substitution, if applicable, but not
received representation because there is no
 transmission of rights of voluntary heir (Art. Representation is a creation of the law. The
856) representatives inherit from
the person whose estate is T+
2. RENUNCIATION. (Arts. 968, 969, 977) under consideration. AB+C+

 Examples: Art. 972. The right of b1c1

representation takes place in the c2
1. "I institute my son, and if he predeceases me, direct descending line, but never in
he will be represented by his son." This is the ascending.
substitution and not representation. In the collateral line, it
takes place only in favor of the
2. B predeceases X. When X dies, b1 and b2 are children of brothers or sisters, whether they be of
excluded because of the rule that the nearer the full or half blood.
excludes the more remote. Only A and C
should inherit. But because of the right of
representation, b1 and b2 will inherit in the T
place of B. They are raised to the level of B.
They will only get what B would have gotten. 12+3
4 5
Art. 971. The representative is called to the
succession by the law and not by the person
represented. The representative does not succeed
the person represented but the one whom the
person represented would have succeeded. T

 EXAMPLE: If a child represents his predeceased

father in the succession to the grandfather’s estate, 12 3+
he inherits from the grandfather.
4 5 6 78 9+
 Property received by representation cannot be taken T 10
by or be held responsible for the debts of the person
represented. Because same is not part of his estate; 1+ 2+ 3+
it is part of the decedent’s estate. (TS, June 25, 45 6 7 8 9
1905).

 Even if by institution, compulsory heirs may inherit

unequally; still by representation, they would get
equally or per capita, as long as they are members
of one group.

 Characteristics of the right of representation: The  In what direction does it operate:

characteristics of the right of representation are:
1. Only in the DESCENDING LINE, never in the
1. Right of subrogation: The right of ascending.
representation is a right of subrogation and not
subrogation alone. While subrogation is a form T+ 2. In the
of novation, the right of representation is not. COLLATERAL
This is a right of subrogation because the AB+C+ LINE.-- Nephews
more remote relatives are by fiction of law and nieces in
b1c1+
elevated to the rank of the nearer relative. representation of
There is novation to the extent of the c2 their parents who
substitution of the heirs, the representative in predeceased their
lieu of the person represented. decedent brother
or sister.
2. Exception to the rule of proximity: As a
fictional elevation to the rank of the nearer
relative, the right of representation prevents Cannot be exercised by grandnephews or nieces,
the rule of exclusion from taking effect. hence c2 cannot represent

3. Statutory concession: The law, not the

person represented, calls the representatives
to the inheritance because the Right of

If they are the only heir left then they have an equal
share, per capita. Hence b1 and c1 inherits equally
or per capita
TEOTICO v. DEL VAL-- An adopted child cannot
represent his adoptive parent because the
fiction is only between the adopter and the
adopted.
Art. 973. In order that representation may take
place, it is necessary that the representative
himself be capable of succeeding the decedent.
 Capacity to succeed.-- In representation, there are
three parties:
1. The decedent;
2. The person represented;
3. The representative.
 What is essential is the capacity of 3 to succeed
from 1 and not necessarily from 2 because the
representative is inheriting from the decedent and
not from the person represented.
Art. 974. Whenever there is succession by
representation, the division of the estate shall be
made per stirpes, in such manner that the
representative or representatives shall not inherit
more than what the person they represent would
inherit, if he were living or could inherit.
 How much?
1. PER STIRPES means inheritance by group or
by batch
2. PER CAPITA means individually or per head
thus all those within the group inheriting in equal
shares.
 How?
1. By representation
2. By one’s own right
Art. 975. When children of one of more brothers or
sisters of the deceased survive, they shall inherit
from the latter by representation, if they survive
with their uncles or aunts. But if they alone
survive, they shall inherit in equal portions.
 Inheritance by Nephews and Nieces in collateral
line.
1. REPRESENTATION-- if survived with uncles
and aunts they will divide the estate per stirpes
2. OWN RIGHT —if they alone survive they will
inherit per capita or in equal portions
Art. 976. A person may represent him whose
inheritance he has renounced.
Art. 977. Heirs who repudiate their share may not
be represented.
 Rights of renouncer:
1. Person who renounces CAN REPRESENT.
(Art. 976.)
2. Person who renounces CANNOT BE
REPRESENTED. (Art. 977.)
A dies in 2000 but C
T renounces/
repudiates his
A+ B
inheritance from A.
Cr D Later on T dies.
E
 Effect:
o C can still inherit from T by representing A.
o E cannot represent C in A's estate because C
who renounces/repudiates his share cannot be
represented.
Section. 2.—
ORDER OF INTESTATE SUCCESSION.
Subsection 1.—
DESCENDING DIRECT LINE.
Art. 978. Succession pertains, in the first place, to
the descending direct line.
 The law of intestacy is founded on the presumed will
of the deceased. Love, it is said, first descends, then
ascends, and finally, spreads sideways. Thus, the
law first calls the descendants, then the ascendants
and, finally, the collaterals, always preferring those
closer in the degree to those of remoter degrees, on
the assumption that the deceased would have done
so had he manifested his last will.
 Degree—1st, 2nd…
 Line—descending or ascending
 Class—legitimate or illegitimate
Art. 979. Legitimate children and their descendants
succeed the parents and other ascendants,
without distinction as to sex or age, and even if
they should come from different marriages.
An adopted child succeeds to the property
of the adopting parents in the same manner as a
legitimate child.
 Order of Intestate Succession to the Estate of a
Legitimate Child
1. The presence of legitimate children and
descendants will not exclude the illegitimate
children and descendants.
2. The presence of legitimate children and
descendants will not exclude the surviving
spouse.
3. The presence of illegitimate children and
descendants will not exclude the surviving
spouse.
 Exclusionary rule: The principles of compulsory
succession as applied to intestate succession limit
the application of the exclusionary rule, whereby
primary compulsory heirs cannot, under any
circumstance be excluded since they always concur
with one another. The secondary compulsory heirs,
on the other hand, are subject to the exclusionary
rule.
SAYSON v.CA--At issue in this case is the status of
the private respondents and their capacity to
inherit from their alleged parents and
grandparents. In consequence of the above
observations, we hold that Doribel, as the
legitimate daughter of Teodoro and Isabel
Sayson, and Delia and Edmundo, as their
adopted children, are the exclusive heirs to the
intestate estate of the deceased couple,
conformably to the following Article 979 of the
Civil Code. The philosophy underlying this
article is that a person’s love descends first to
his children and grandchildren before it
ascends to his parents and thereafter spreads
among his collateral relatives. It is also
supposed that one of his purposes in acquiring
properties is to leave them eventually to his
children as a token of his love for them and as
a provision for their continued care even after
he is gone from this earth.
Art. 980. The children of the deceased shall always
inherit from him in their own right, dividing the
inheritance in equal shares.
 Principle of Equality as this is inheritance per
capita since heirs inherit in their own right
 Even if they come from different marriages for after
all the dead parent is the common parent
Art. 981. Should children of the deceased and
descendants of other children who are dead,
survive, the former shall inherit in their own right,
and the latter by right of representation.
 The article speaks of children inheritance of children
concurring with grandchildren. Note the distinction
that:
1. Children inherit per capita
2. Grandchildren inherit per stirpes.
Art. 982. The grandchildren and other descendants
shall inherit by right of representation, and if any
one of them should have died, leaving several
heirs, the portion pertaining to him shall be divided
among the latter in equal portions.
 Inheritance by Grandchildren
 When all the children repudiates, there is no right of
representation and the grandchildren inherit in their
own right, per capita and in equal portions (relate
with Art 969)
 But recall that when nephews and nieces alone
survive to the exclusion of brothers ansisters, they
inherit in equal portions, that is per capita and in their
own right.
D
A+B+C+
a1a2a3b1C1+
c1a c1b
Art. 983. If illegitimate children survive with
legitimate children, the shares of the former shall
be in the proportions prescribed by article 895.
 Article 895 - note article 176 FC - Illegitimate child is
entitled to 1/2 of share of a legitimate child. The
legitime of the illegitimate child shall be taken from
the free portion, provided in no case shall the total
legitime of illegitimate child exceed the free portion,
and the legitime of surviving spouse must first be
fully satisfied.
T
A B C D E F G H
 If estate is not enough:
1. Determine the intestate share
 2. Check if legitimes of legitimate children are
impaired
3. If legitimes of legitimate children are impaired,
get the legitime and give the rest to illegitimate
children
Art. 984. In case of death of an adopted child,
leaving no children or descendants, his parents
and relatives by consanguinity and not by
adoption, shall be his legal heirs.
 This article has already been repealed by the rules
on adoption, Articles 17 and 18 of RA No.8552 or
Domestic Adoption Act, PD 603 the Child and Youth
Welfare Code, Articles 189 and 190 of the Family
Code.
Subsection2.—
ASCENDING DIRECT LINE.
Art. 985. In default of legitimate children and
descendants of the deceased, his parents and
ascendants shall inherit from him, to the exclusion
of collateral relatives.
Art. 986. The father and mother, if living, shall
inherit in equal shares.
Should one only of the survive, he or she
shall succeed to the entire estate of the child.
Art. 987. In default of the father and mother, the
ascendants nearest in degree shall inherit.
Should there by more than one of equal
degree belonging to the same line they shall divide
the inheritance per capita; should they be of
different lines but of equal degree, one-half shall
go to the paternal and the other half to the
maternal ascendants. In each line the division shall
be made per capita.
 Presumption of equal division in the paternal and
maternal line is based on the fact that the father and
mother are equally entitled to the gratitude of the
children.
 No right of representation in ascending line
Subsection 3.—
ILLEGITIMATE CHILDREN.
Art. 988. In the absence of legitimate descendants
or ascendants, the illegitimate children shall
succeed to the entire estate of the deceased.
 IllC = entire state
Art. 989. If, together with illegitimate children, there
should survive descendants of another illegitimate
child who is dead, the former shall succeed in their
own right and the latter by right of representation.
 This rule is similar to the rule for legitimate children
and grandchildren.
D Estate = 900
A = 300
B = 300
A B C+
c1 c2
c1 = 150
c2 = 150
Art. 990. The hereditary rights granted by the two
preceding articles to illegitimate children shall be
transmitted upon their death to their descendants,
who shall inherit by right of representation from
their deceased grandparent.
Estate = 100
D
a1 = 25
a2 = 25
A+ B+
b1 = 50
a1 a2 b1
Art. 991. If legitimate ascendants are left, the
illegitimate children shall divide the inheritance
with them, taking one-half of the estate, whatever
be the number of the ascendants or of the
illegitimate children.
 Share of Legitimate ascendants survived with
illegitimate children:
1. LP = 1/2
2. IllC = 1/2
 In case there is partial intestacy “Charge the
legacies, etc. to the intestate shares of those given
by the law (on intestate succession) MORE than
their respective legitimes, without however impairing
said legitimes.
 Just like in the rules of compulsory succession, the
shares of the illegitimate children are to be taken
only from the half, which is the free portion
Art. 992. An illegitimate child has no right to inherit
ab intestato from the legitimate children and
relatives of his father or mother; nor shall such
children or relatives inherit in the same manner
from the illegitimate child.
 Iron Curtain Rule, Principle of absolutely a
succession separation between the legitimate and
illegitimate family
 There is an impassable barrier separating and
dividing the members of the legitimate family from
those of the illegitimate family. Although in reality an
illegitimate child is related by blood to the members
of the legitimate family, the law ignores it, hence
such illegitimate child cannot inherit by intestate
succession from the legitimate children or relatives
of his mother/ father, neither can such legitimate
children or relative inherit in the same manner from
the illegitimate child.
CUARTICO v CUARTICO—the reason for this
impregnable barrier between the two families
is obviously the intervening antagonism and
incompatibility between the legitimate family
and the illegitimate family.
CORPUS v ADMINISTRATOR-- The application and
the legal underpinnings of this provision have
been adequately explained by the Supreme
Court in various decisions.
That rule is based on the theory that the
illegitimate child is disgracefully looked upon
by the legitimate family while the legitimate
family is, in turn, hated by the illegitimate child.
The law does not recognize the blood tie and
seeks to avoid further grounds of resentment
LEONARDO v COURT OF APPEALS-- even if it is
true that petitioner is the child of Sotero
Leonardo, still he cannot, by right of
representation, claim a share of the estate left
by the deceased Francisca Reyes considering
that, as found again by the Court of Appeals,
he was born outside wedlock as shown by the
fact that when he was born on September 13,
1938, his alleged putative father and mother
were not yet married, and what is more, his
alleged father’s first marriage was still
subsisting. At most, petitioner would be an
illegitimate child who has no right to inherit ab
intestato from the legitimate children and
relatives of his father, like the deceased
Francisca Reyes.
DIAZ vs. IAC-- Pablo Santero is a legitimate child, he
is not an illegitimate child. On the other hand,
the oppositors (petitioners herein) are the
illegitimate children of Pablo Santero.
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
legitimate child. They may have a natural tie of
blood, but this is not recognized by law for the
purposes of Art. 992. Between the legitimate
family and the illegitimate family there is
presumed to be an intervening antagonism
and incompatibility. The illegitimate child is
disgracefully looked down upon by the
legitimate child; the latter considers the
privileged condition of the former, and the
resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child
nothing but the product of sin, palpable
evidence of a blemish broken in life; the law
does no more than recognize this truth, by
avoiding further grounds of resentment.
 Thus, petitioners herein cannot represent their
father Pablo Santero in the succession of the
letter to the intestate estate of his legitimate
mother Simona Pamuti Vda. de Santero,
because of the barrier provided for under Art.
992 of the New Civil Code.
T children the right to represent their natural
A+
B+ C+
TX
D X FG
T T
W B C+ B+
X X
DIAZ v IAC-- The Civil Code of the Philippines
apparently adhered to this principle since it
reproduced Article 943 of the Spanish Code in
its own Art. 992, but with fine inconsistency, in
subsequent articles (990, 995 and 998) our
Code allows the hereditary portion of the
illegitimate child to pass to his own
descendants, whether legitimate or
illegitimate. So that while Art. 992 prevent the
illegitimate issue of a legitimate child from
representing him in the intestate succession of
the grandparent, the illegitimates of an
illegitimate child can now do so.
This difference being indefensible and
unwarranted, in the future revision of the Civil
Code we shall have to make a choice and
decide either that the illegitimate issue enjoys
in all cases the right of representation, in
which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify
Articles 992 and 998. The first solution would
be more in accord with an enlightened attitude
vis-a-vis illegitimate children
Article 992, prohibit the right of representation
from being exercised where the person to be
represented is a legitimate child. Needless to
say, the determining factor is the legitimacy or
illegitimacy of the person to be represented. If
the person to be represented is an illegitimate
child, then his descendants, whether legitimate
or illegitimate, may represent him; however, 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 In Article 992. In this wise, the
commentaries of Manresa on the matter in
issue, even though based on the old Civil
Code, are still very much applicable to the new
Civil Code because the amendment, although
substantial, did not consist of giving illegitimate
parents (legitimate) in the intestate succession
of their grandparents (legitimate).
It is Our shared view that the word “relatives”
should be construed in its general acceptance.
Amicus Curiae Prof. Ruben Balane has this to
say:
“The term relatives, although used many times
in the Code, is not defined by it. In accordance
therefore with the canons of statutory
interpretation, it should be understood to have
a general and inclusive scope, inasmuch as
the term is a general one. That the law does
not make a distinction prevents us from
making one:
According to Prof. Balane, to interpret the term
relatives in Article 992 in a more restrictive
sense than it is used and intended is not
warranted, by any rule of interpretation.
Besides, he further states that when the law
intends to use the term in a more restrictive
sense, it qualifies the term with the word
collateral, as in Articles 1003 and 1009 of the
new Civil Code. Thus, the word, “relatives” is a
general term and when used in a statute it
embraces not only collateral relatives but also
all the kindred of the person spoken of, unless
the context indicates that it was used in a
more restrictive or limited sense—which, as
already discussed earlier, is not so in the case
at bar.
Art. 993. If an illegitimate child should die without
issue, either legitimate or illegitimate, his father or
mother shall succeed to his entire estate; and if
the child's filiation is duly proved as to both
parents, who are both living, they shall inherit from
him share and share alike.
M F
Must prove filiation with the
father, otherwise the entire estate
T shall go to the mother
Art. 994. In default of the father or mother, an
illegitimate child shall be succeeded by his or her
surviving spouse, who shall be entitled to the
entire estate.
If the widow or widower should survive
with brothers and sisters, nephews and nieces,
she or he shall inherit one-half of the estate, and
the latter the other half.
 SS = entire estate
 SS and BSNN= 1/2 each of the estate
 Order of Intestate Succession to the Estate of an
Illegitimate Child:
1. Legitimate children and legitimate
descendants. (Arts.979, 992).
2. Illegitimate children and descendants (whether
legitimate or illegitimate). (Arts. 988, 989, 902,
990).
3. Illegitimate parents. (Art. 993).
[NOTE: That an illegitimate decedent has no
legitimate ascendants.].
4. Surviving spouse. (Art. 994).
5. Illegitimate brothers and sisters; nephews and
nieces. (By inference, from Art. 994, 2nd par.)
6. The State. (Art. 1011).
Subsection 4.—
SURVIVING SPOUSE
Art. 995. In the absence of legitimate descendants
and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the
surviving spouse shall inherit the entire estate,
without prejudice to the rights of brothers and
sister, nephews and nieces, should there be any
under article 1001.
 SS only she is entitled to the ownership and
usufruct
Art. 996. If a widow or widower and legitimate
children or descendants are left, the surviving
spouse has in the succession the same share as
that of each of the children.
 Intestate share of the surviving spouse in
concurrence with legitimate children: The law
provides that the surviving spouse shall have the
same share as each legitimate child. Hence, the
entire estate is divided by the total number of
legitimate children plus the surviving spouse.
 Intestate share of the SS when concurring with
only 1 legitimate child:
1. LC shall be entitled to ½ while SS shall be
entitled to the other ½. The basis is Art. 996
2. LC is ¾ while SS is entitled to only ¼. This is
based on the principle of exclusion since Art 996
speaks only of surviving spouse inheriting with
legitimate children or descendants, therefore,
the rule stated in Art 996 cannot be applied to a
case when the surviving spouse inherits with
only one legitimate child. Hence the general
order of intestate succession shall apply-- satisfy
the legitime, then give the free portion to the one
who is preferred in the order of succession.
3. LC shall be entitled to 2/3 while SS shall be
entitled to 1/3. This is based upon the principle
of concurrence. It proceeds from the application
of Art 892 by satisfying the legitime of the two
heirs and then dividing the free portion in
proportion of 2:1.
4. LC is entitled to 5/8 while SS is entitled to 3/8.
That is by satisfying the legitime ½ to LC and ¼
to SS then divide the free portion(1/4) equally
into two.
SANTILLON v. MIRANDA-- Article 892 merely fixes
the legitime of the surviving spouse and Article
888 thereof, the legitime of children in testate
succession. While it may indicate the intent of
law with respect to the ideal shares that a child
and a spouse should get when they concur
with each other, it does not fi x the amount of
share that such child and spouse are entitled
to when intestacy occurs. It is a maxim of
statutory construction that words in plural
include the singular. So Article 996 could or
should be read (and so applied): “If the widow
or widower and a legitimate child are left, the
surviving spouse has the same shares as that
of the child.”
It is the belief of some that in testate
succession, where there is only one child of
the marriage, the child gets one-half and the
widow or widower one-fourth. But in intestate,
if Article 996 is applied now, the child gets one-
half and the widow or widower one-half. Unfair
and inequitable, they insist. On this point, it is
not correct to assume that in testate
succession the widow or widower “gets only
one-fourth.” She or he may get one-half if the
 testator so wishes. So the law leaves it
virtually to each of the spouses to decide (by
testament, whether his or her only child shall
get more than his or her survivor).
Art. 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving
spouse shall be entitled to one-half of the estate,
and the legitimate parents or ascendants to the
other half.
 Intestate heirs who survived:
1. Surviving spouse — 1/2
2. Legitimate Parent — 1/2
 In intestate succession the law has allotted the
disposable portion to the surviving spouse, thus
equalizing the shares of the two heirs
Art. 998. If a widow or widower survives with
illegitimate children, such widow or widower shall
be entitled to one-half of the inheritance, and the
illegitimate children or their descendants, whether
legitimate or illegitimate, to the other half.
 Intestate heirs who survived:
1. Surviving spouse — 1/2
2. Illegitimate children or descendants — 1/2
Art. 999. When the widow or widower survives with
legitimate children or their descendants and
illegitimate children or their descendants, whether
legitimate or illegitimate, such widow or widower
shall be entitled to the same share as that of a
legitimate child.
 Intestate heirs who survived:
1. Legitimate Children— 1/2
2. Surviving spouse — 1/4
3. Illegitimate children or descendants — 1/4
IN RE: MARIO CHANLIONGCO-- The matter refers to
the claims for retirement benefits by the heirs
of the late Atty. Chanliongco of the SC, who
was more than 63 years of age, with more
than 38 years of service in the government. He
left as heirs the following: his widow, one
legitimate child and 2 illegitimate children. He
died intestate and stated in his application for
membership with the GSIS the beneficiary, of
his retirement benefits, should he die before
retirement.
As to the retirement benefits:
Widow 4/16
Legitimate Son 8/16
Illegitimate Daughter 2/16
Illegitimate Son 2/16
As to the monetary value of the terminal leave
pay and unused vacation and sick leave, the
SC treated the same as conjugal property and
as such, ½ goes to the widow as her share in
the conjugal partnership and the other half to
be distributed to the legal heirs in the same
way as in the retirement benefits. This is so
because ‘vacation with pay is not a gratuity but
is compensation for services rendered’.
The SC said that in distributing the estate, we
must first satisfy the legitime of the survivors. If
after satisfying the legitimes of the legitimate
children, the balance of ½ should not be
sufficient to cover the legitime of the surviving
spouse and the illegitimate children, the
legitime of the surviving spouse must first be
fully satisfied and what is left shall be divided
equally among the illegitimate children.
Art. 1000. If legitimate ascendants, the surviving
spouse, and illegitimate children are left, the
ascendants shall be entitled to one-half of the
inheritance, and the other half shall be divided
between the surviving spouse and the illegitimate
children so that such widow or widower shall have
one-fourth of the estate, and the illegitimate
children the other fourth.
 Here, three classes are surviving:
1. Legitimate ascendants — 1/2
2. Surviving spouse — 1/4
3. Illegitimate children — 1/4
 The surviving spouse is placed in the same level or
category as the illegitimate children.
 If there is partial intestacy the same must be charged
to the intestate share of the SS as long as the
legitime is not impaired.
Art. 1001. Should brothers and sisters or their
children survive with the widow or widower, the
latter shall be entitled to one-half of the inheritance
and the brothers and sisters or their children to the
other half.
 This Article speaks of two classes of survivors:
1. Surviving spouse — 1/2
2. Brothers & sisters(and their children— 1/2
A+ Estate= 100K
W=50K
C=25K
b1=25k
B+ C D+ W
b2=25k
b1 b2

 Estate of D is under consideration, the surviving
spouse, W, gets 1/2 while brothers get the other half,
thus B and C get 1/4 each but since B predeceased
D, b1 and b2 gets 1/8 each by right of representation
Art. 1002. In case of a legal separation, if the
surviving spouse gave cause for the separation, he
or she shall not have any of the rights granted in
the preceding article.
 This Article presupposes a legal separation (decreed
by the court) and not a mere separation de facto. It
would seem that giving cause for legal separation is
not sufficient.
 A reconciliation puts aside the effects of legal
separation
Subsection 5.—
COLLATERAL RELATIVES
Art. 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the
collateral relatives shall succeed to the entire
estate of the deceased in accordance with the
following articles.
 The collaterals referred to in this Article are intestate,
but not compulsory heirs. The collateral relatives
shall succeed to the entire estate of the deceased.
 Among the collateral relatives, the Rule of Proximity
shall be applied except when the Right of
Representation obtains. Hence, brothers and sisters,
nephews and nieces inherit to the exclusion of other
collateral relatives.
 Applicable Principles:
1. When the law speaks of collateral relatives they
refer to those within the 5th degree
2. Where 2 or more collateral relatives concur, rule
of proximity applies
3. Right of representation existed only to nephews
and nieces excluding grandnephews and
grandnieces.
4. When the collaterals are of the same degree, the
rule of preference by reason of relationship by
whole blood is recognized, but only to brothers
and sisters, nephews and nieces.
Art. 1004. Should the only survivors be brothers
and sisters of the full blood, they shall inherit in
equal shares.
Art. 1005. Should brothers and sisters survive
together with nephews and nieces, who are the
children of the decedent's brothers and sisters of
the full blood, the former shall inherit per capita,
and the latter per stirpes.
M+ F+
A B+ C+ D E+
c1 c2 e1 e2 e3
 Estate of B is under consideration, (A, D) inherit per
capita while (c1, c2, e1,e2, e3) inherit per stirpes in
representation of their deceased parent (C, E)
Art. 1006. Should brothers and sisters of the full
blood survive together with brother and sisters of
the half blood, the former shall be entitled to a
share double that of the latter.
W+ F+ S+
A B+ C D
 W is the first wife of F. they have one child A. When
W died, F married S. they have 3 children, b, c, d. if
 If B dies and A, C and D survive him in an estate of
50,000, A gets 10,000 while C and D gets 20,000
each.
 If it was A who died, B, C, and D will inherit in equal
portions.
 If it was F who died, A, B, C, and D will inherit in
equal portions.

Art. 1007. In case brothers and sisters of the half

blood, some on the father's and some on the
mother's side, are the only survivors, all shall
inherit in equal shares without distinction as to the
origin of the property.

R+ S+ T+ M+

A B C L MN

 R and S are married. They have 3 children. T and

M are married they have 2 children. R and M died
and S and T got married, they have 1 child.
 If estate of L is under consideration with an estate
of 50,000 then equal shares for all (A, B, C, M, N)
or 10,000 each
 If estate of A is under consideration the share is
2:1 (B, C : L, M, N)

Art. 1008. Children of brothers and sisters of the

half-blood shall succeed per capita or per stirpes,
in accordance with the rules laid down for brothers
and sisters of the full blood.

Art. 1009. Should there be neither brothers nor

sisters nor children of brothers or sisters, the
other collateral relatives shall succeed to the
estate.
The latter shall succeed without distinction
of lines or preference among them by reason of
relationship by the whole blood.

 Presence of brothers, sisters, nephews, and nieces

of the decedent excludes all other collaterals
relatives (uncles, cousins, etc.) being called to the
succession

Art. 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in
the collateral line.
 Another change in this section on the order of
intestate succession in the interest of national
economy and social welfare, and in keeping with the
underlying philosophy of socialization of ownership
of property, is to limit the right of succession to the
collateral relatives within the fifth (5th) degree of
relationship from the decedent instead of the sixth
degree. (Comment of the Code Commission)
Subsection 6.--
THE STATE.
Art. 1011. In default of persons entitled to succeed
in accordance with the provisions of the preceding
Sections, the State shall inherit the whole estate.
Art. 1012. In order that the State may take
possession of the property mentioned in the
preceding article, the pertinent provisions of the
Rules of Court must be observed.
Art. 1013. After the payment of debts and charges,
the personal property shall be assigned to the
municipality or city where the deceased last
resided in the Philippines, and the real estate to
the municipalities or cities, respectively, in which
the same is situated.
If the deceased never resided in the
Philippines, the whole estate shall be assigned to
the respective municipalities or cities where the
same is located.
Such estate shall be for the benefit of
public schools, and public charitable institutions
and centers, in such municipalities or cities. The
court shall distribute the estate as the respective
needs of each beneficiary may warrant.
The court, at the instance of an interested
party, or in its own motion, may order the
establishment of a permanent trust, so that only
the income from the property shall be used.
Art. 1014. If a person legally entitled to the estate
of the deceased appears and files a claim thereto
with the court within five years from the date the
property was delivered to the State, such person
shall be entitled to the possession of the same, or
if sold, the municipality or city shall be
accountable to him for such part of the proceeds
as may not have been lawfully spent.
 [NOTE: “Escheat” is of French-Norman derivation,
meaning accident or chance; the word as used today
refers to succession by the State to property
considered “ownerless” (bona vacantia) for lack of
competent legal heirs. Escheat, being an attribute of
sovereignty, rests on the principle that ultimately it is
the State that owns all property within its territorial
jurisdiction. (See 7 Manresa 169, In Re Links Estate,
319 Pa. 513).].
 Rule 91 (Rules of Court).
ESCHEATS
SECTION 1. When and by whom petition filed. —
When a person dies intestate, seized of real or
personal property in the Philippines, leaving no heir or
person by law entitled to the same, the Solicitor
General or his representative in behalf of the
Republic of the Philippines, may fi le a petition in the
Court of First Instance of the province where the
deceased last resided or in which he had estate, if he
resided out of the Philippines, setting forth the facts,
and praying that the estate of the deceased be
declared escheated.
SEC. 2. Order for hearing. — If the petition is sufficient
in form and substance, the court, by an order reciting
the purpose of the petition, shall fi x a date and place
for the hearing thereof, which date shall be not more
than six (6) months after the entry of the order, and
shall direct that a copy of the order be published
before the hearing at least once a week for six (6)
successive weeks in some newspaper of general
circulation published in the province, as the court shall
deem best.’’
SEC. 3. Hearing and judgment. — Upon satisfactory
proof in open court on the date fi xed in the order that
such order has been published as directed and that
the person died intestate, seized of real or personal
property in the Philippines, leaving no heir or
person entitled to the same, and no sufficient cause
being shown to the contrary, the court shall adjudge
that the estate of the deceased in the Philippines, after
the payment of just debts and charges, shall
escheat...”
 Some Cardinal Principles of Intestate
Succession
1. Even if there is an order of intestate
succession, the compulsory heirs are never
excluded. Moreover, the Civil Code follows the
theory of “concurrence,” not the theory of
“exclusion.”
2. The nearer excludes the farther, without
prejudice to the right of representation
(because by virtue of representation, the
farther becomes just as “near” as the
“nearer”).
3. There is NO right of representation in the
ascending line.
4. There is right of representation in the
descending line.
5. In the collateral line, the right of representation
is given only to children of brothers and
sisters.
[NOTE:
a. Hence, grandchildren of brothers and
sisters cannot represent in the succession
of the decedent; neither can children of
first cousins.
b. This right of representation in the collateral
line is true only in legal succession, never
in testamentary succession, because a
voluntary heir CANNOT be represented.].
6. The intestate shares are either equal to or
greater than the legitime (otherwise a good
way to decrease the legitime would be by
dying intestate).
7. In case of partial intestacy, the legacies and
devises or institutions to the free portion must
be charged PROPORTIONATELY against the
intestate heirs who are given intestate shares
greater than their legitimes, insofar as said
excess is concerned, but in no case should the
legitime be impaired.
8. Grandchildren ALWAYS inherit by right of
representation, provided representation is
proper. (This is true whether they concur with
children of the deceased or not.)
9. Therefore, whenever all the children repudiate,
the grandchildren inherit in their own right, for
here, representation is NOT PROPER.
10. Nephews and nieces inherit either by right of
representation or in their own right.
a. By right of representation, when they
concur with aunts and uncles (provided
that representation is proper, that their
own parents should not have repudiated).
 b. In their own right, whenever they do not a. excludes collaterals, the State
concur with aunts and uncles. b. concurs with illegitimate children,
11. Illegitimates of legitimates cannot represent surviving spouse
because of the BARRIER, but illegitimates c. excluded by legitimate children.
(and legitimates) of illegitimates can represent. 4. Illegitimate ascendants
a. There is barrier between the LEGITIMATE a. excludes collaterals, the State
and the ILLEGITIMATE family. b. concurs with the surviving spouse
b. There can be reserva troncal in legal c. excluded by legitimate descendants,
succession. illegitimate descendants.
c. A renouncer can represent, but cannot be 5. Surviving spouse
represented. a. excludes collaterals, other than
d. A person who cannot represent a near brothers and sisters, nephews and
relative (such as a father who has nieces, the State
renounced) cannot also represent a b. concurs with legitimate child,
relative farther in degree. After all, the right illegitimate child, legitimate and
to represent is by itself also a successional illegitimate brothers and sisters,
right, which is of course governed by legal nephews and nieces.
provisions. c. excluded by no one.
6. Brothers, sisters, nephews and nieces
Survivor LC/ IllC/ SS LP/ IllP BS OC S a. excludes all other collaterals, the State
s D D A NN R b. concurs with the surviving spouse
LC/D All c. excluded by legitimate children,
alone illegitimate children, legitimate
LC, IllC Proportion parents, illegitimate parents.
of 10-5 7. Other collaterals
a. exludes collaterals in remote degrees,
LC, IllC, sam sam Sam
the State
SS e e e as
b. concurs with collaterals in equal
1 LC
degree
IllC ALL
c. excluded by legitimate/ illegitimate
alone
children/ parents, surviving spouse,
IllC, SS 1/2 1/2 brothers and sisters, nephews and
SS All nieces.
alone 8. The State
IllC, SS, 1/4 1/4 1/2 a. excludes no one
LP b. concurs with no one
LP, SS 1/2 1/2 c. excluded by everybody else.
LP All
alone BACAYO v BORROMEO.-- Nephews and nieces
SS, IllP 1/2 1/2 exclude uncles and aunts even if they may be
IllP All both only three (3) degrees away from the
alone decedent. (Art. 1009 by inference.)
SS, 1/2 1/2
BSNN
BSNN All
OCR All
S All
Chapter 4
 Intestate heirs: PROVISIONS COMMON TO TESTATE AND
1. Legitimate children/ descendants INTESTATE SUCCESSIONS
a. excludes ascendants, all collaterals,
the State Section 1.--
b. concurs with illegitimate children/ RIGHT OF ACCRETION
descendants, surviving spouse
c. excluded by no one.  Accretion is a right based on the presumed will of
2. Illegitimate children/ descendants the deceased that he prefers to give certain
a. excludes illegitimate parents, properties to certain individuals, rather than to his
collaterals, the State legal heirs.
b. concurs with surviving spouse,
legitimate children, legitimate  The right of accretion takes place in:
ascendants 1. Testamentary succession
c. excluded by no one. 2. Intestate succession
3. Legitimate parents

 But not with respect to compulsory succession or
legitimes.
Art. 1015. Accretion is a right by virtue of which,
when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to
the one who renounces or cannot receive his
share, or who died before the testator, is added or
incorporated to that of his co-heir, co- devisees, or
co-legatees.
 Multiple beneficiaries in favor of one benefit
 This occurs by reason of Predecease Incapacity or
Repudiation a vacancy is created in the inheritance.
 ISRAI provides that accretion which follows the
decedents implied desires may be avoided by the
decedent himself.
1. By expressly designating a substitute
2. By expressly providing that although accretion
may take place, still he does not want
accretion to occur, that is, he desires no
accretion in favor of those who ordinarily
would be entitled to it.
 One of the persons called:
1. Die before the testator
2. Renounce the inheritance
3. Be incapacitated to receive it.
Substitution Accretion Representation
1. predecease 1. predecease 1. predecease
2. incapacity 2. incapacity 2. incapacity
3. renunciation 3. renunciation 3. Disinheritance
Art. 1016. In order that the right of accretion may
take place in a testamentary succession, it shall be
necessary:
(1) That two or more persons be called to the
same inheritance, or to the same portion
thereof, pro indiviso, and
(2) That one of the persons thus called die before
the testator, or renounce the inheritance, or be
incapacitated to receive it.
Art. 1017. The words "one-half for each" or "in
equal shares" or any others which, though
designating an aliquot part, do not identify it by
such description as shall make each heir the
exclusive owner of determinate property, shall not
exclude the right of accretion.
In case of money or fungible goods, if the
share of each heir is not earmarked, there shall be
a right of accretion.
 Requisites:
1. PLURALITY OF SUBJECTS-- Two or more
heirs, devisees and legatees are called to the
same inheritance, devise or legacy pro-indiviso.
Pro indiviso means without designation of parts
or the portions are undivided.
2. UNITY OF OBJECT – only one benefit or
inheritance is given in favor of all of them
3. VACANT PORTION—the vacancy is created by
predecease, incapacity or renunciation of
anyone of those plurality of subjects
4. ACCEPTANCE-- of the portion accruing by the
person entitled to the same
 Examples:
1. "I give 5000 to A and B." If A dies and does not
have any children or descendants, accretion
will take place. B will get 5,000, 2500 by his
own right and 2,500 by accretion.
2. "I give 5000 to A and B in equal shares."
Accretion will still apply. "Equal shares" makes
explicit what is implied because if nothing is
said, it is presumed that it is in equal shares
3. "I give 1/2 to A, 1/4 B and 1/8 to C." This
seems to imply accretion.
a. Is it possible to have unequal pro indiviso
shares? Yes. As long as they are
"undivided," "aliquot" or "abstract." It is not
required that they be in equal shares.
What is required is that it be pro indiviso.
b. Accretion will not apply according to
commentators. Pro indiviso is not a good
phrase, it should be "without any particular
designation of shares."
 If equal shares.-- Art. 1017, accretion applies. If
unequal shares, can accretion apply?
1. Yes.-- Art. 1016
2. No.-- Commentators. If sharing is not the
same, accretion cannot take place.
 There must be no earmarking because the moment
there is earmarking it is no longer pro indiviso or no
unity of object anymore because you already
particularize which of the specific property or
portions of the property you are giving to the
individual multiple beneficiaries.
 EXAMPLE:
1. T gave the entire house to A and B , there can
be accretion if A predeceased T.
2. If T says in his will that the 1 st floor of the house
shall be given to A and the 2 nd floor to B since
there is earmarking to the extent that the shares
of each co-heirs were specified, upon
distribution of the property, the house will not be
co-owned. Hence, accretion cannot take place.
Art. 1018. In legal succession the share of the
person who repudiates the inheritance shall
always accrue to his co-heirs.  EXAMPLE

 This treats of accretion in Intestate Succession D Estate =

because by the very nature of succession the legal
heirs are called by law to the same inheritance pro
indiviso.
 There is only one requisite in order for accretion to
be available, there must be vacancy in the
inheritance.
 Some rules from Art. 1018 by implication:
1. In renunciation, there is always accretion
because there is no representation in
renunciation. This applies only to intestacy and
testamentary succession.
2. In intestacy, apply representation first. If there
is none, then accretion will apply.
3. In testamentary succession, apply substitution
first. If there is no substitution, then accretion
will apply. Co-heirs whom the portion goes by
right of accretion take it in the same proportion
that they inherit. Not equally but in proportion
to their originally instituted portion.
Art. 1019. The heirs to whom the portion goes by
the right of accretion take it in the same proportion
that they inherit.
Art. 1020. The heirs to whom the inheritance
accrues shall succeed to all the rights and
obligations which the heir who renounced or could
not receive it would have had.
 In accretion the most important effect is that the
share or portion which is rendered vacant is added
or incorporated to the original share on the co-heir,
co-legatee or co-devisee.
600
A+ Br C E a1 =75 + 25 = 100
a2 =75 + 25 = 100
a1 a2 C = 150 + 50= 200
E = 150 + 50= 200
 B's share is acquired by the others by accretion
 A, C and E get 150 each in their own right and an
additional 50 each by accretion.
 a1 and a2 get 75 each by right of representation,
and 25 each by accretion.
Art. 1021. Among the compulsory heirs the right of
accretion shall take place only when the free
portion is left to two or more of them, or to any of
them and to a stranger.
Should the part repudiated be the legitime,
the other co-heirs shall succeed to in their own
right, and not by the right of accretion.
 Applies only if the free portion has been left by
testamentary succession. The situation
contemplated is that the free portion was instituted
and the instituted heirs repudiated.
 There is NO accretion insofar as the legitime is
concerned; accretion, if it takes place, concerns only
the free portion. What will happen to the legitime
depends upon the cause of the vacancy if due to
incapacity or predecease, the vacant portion will go
by right of representation. Otherwise you follow
intestate rules. If the vacancy is due to repudiation
there is no right of representation and the legitime be
given to the legal heirs of the decedent following the
rules of intestate succession.

 Whether the succession is testate or intestate if the

right of accretion takes place the heirs to whom the
vacant share or portion is assigned shall divide it in
the same proportion that they inherit. It refers to your
original inheritance, this implies that proportion is
different.

 Co-heirs get their share with the same obligations

and conditions unless there is a contrary express
provision in case of testamentary succession or  EXAMPLE:
when the rights and obligations refer to are
personally applicable only to the original heir, legatee T-----Z Estate = 60
or devisee. A= 30 + 10 + 5 = 45
Z=10 + 5 = 15
A B+

 Representative can get the accretion because they

steps into the shoes of the represented heir.  T institutes as his heirs his two legitimate children (A
and B), and a friend (Z).
 15 of B’s shares goes to A in the latter’s own right
(since this is the legitime). The remaining 10 will go
equally to A and Z by accretion since this is the
proportion in which they were instituted to the free
portion.
T - - - - - X+ Estate = 60
A= 15 +15 = 30
A B Y B= 15 +15 = 30
 T, in his will, gave A and B 1/4 each, and X was
given 1/2.
 If X predeceases T, Y cannot get his share, for a
voluntary heir (X) cannot be represented.
 On the other hand, A and B cannot get it by accretion
for they were not given any part of the free portion.
Intestacy then results, and A and B will get X’s share
as intestate heirs.
Art. 1022. In testamentary succession, when the
right of accretion does not take place, the vacant
portion of the instituted heirs, if no substitute has
been designated, shall pass to the legal heirs of
the testator, who shall receive it with the same
charges and obligations.
 This illustrates the order of preference (ISRAI), when
accretion does not take place
T- - - -S B= 10M
S= 10M
Ar B Art. 1025. In order to be capacitated to inherit, the
 T gave 10M(deposited at the Citibank) to A and 10M
(deposited at the BPI) to B. A and B are T’s friends.
No substitute was appointed. S, a sister of the
testator, was given nothing. If A repudiates his share,
who will get it? B will not get, there being no
accretion since there was an earmarking of share.
Therefore, S, the sole intestate heir, gets A’s share.
Art. 1023. Accretion shall also take place
among devisees, legatees and usufructuaries
under the same conditions established for heirs.
Section 2.—
CAPACITY TO SUCCEED BY WILL OR BY
INTESTACY
 Every person, natural/ juridical can succeed by will
or ab intestate. On the other hand only natural
persons are capacitated to make a will
Art. 1024. Persons not incapacitated by law may
succeed by will or ab intestato.
The provisions relating to incapacity by will
are equally applicable to intestate succession.
 Capacity to Succeed-- It is the ability to inherit and
retain property obtained mortis causa. (It is also
termed passive testamentary capacity.)
 In order to show that a person does not have the
capacity to succeed, to prove incapacity, burden of
proof is on the person who alleges incapacity. It must
be proved that it falls under the incapacity expressly
provided for by the Civil Code.
 GR: All persons are capacitated to succeed by will or
ab intestate subject to proof of incapacity.
 Par. 1.-- Ab intestato refers both to legitime and
intestacy.
 Par. 2.-- Mistake - not true. Incapacity to succeed by
will, 1027, 1028 and 1032, are they applicable to
intestacy? Not all.
1. Applies only to incapacity by will
(testamentary succession.) -- Articles 1027,
paragraphs 1 to 5, 1028
2. Applies to both.-- Articles 1027, par. 6, 1032.)
heir, devisee or legatee must be living at the
moment the succession opens, except in case of
representation, when it is proper.
A child already conceived at the time of the
death of the decedent is capable of succeeding
provided it be born later under the conditions
prescribed in article 41.
 GR: Succession opens at the death of the decedent.
(Art. 777.) The heir must be alive when succession
opens.
 EXP: "In case of representation, when proper." This
is wrong. The representative must be alive when the
decedent dies.
 Meaning of “living”—It is enough that the heir,
devisee, or legatee be already conceived when the
decedent dies, provided it be born later, in
accordance with Articles 40 & 41. Inheriting is
favorable to the child.
 Requisite for Capacity to Inherit
1. Must be living, or atleast already in existence or
conceived at the moment the succession opens.
2. Must not be incapacitated to any provisions of
the law to succeed
 First Requisite:
 o GR: Upon death the heir must be alive when it
opens. (same as Art. 1034)
EXP: In cases of representation
o Thus to be capacitated to inherit the heir must
either be living or atleast conceived the
moment succession opens. This is regulated
by Articles 1026, 1029 1030.
o There is no exception to the rule because
even the representative is required to be
already alive or atleast conceived or in
existence upon opening of succession of the
decedent from whom he is inheriting
o Example:
T associations for religious, scientific, cultural,
A B- - - S C All other corporations or entities may
b1
1. B dies on Jan. 1996. B's wife is pregnant at
that time. T dies in March 1996. b1 is born in
July 1996 or 4 months after opening of
succession. Can b1 represent B? Yes
because he is already conceived when X died,
hence he is considered alive. (Note: Art. 41,
the foetus is considered alive from the moment
of conception. )This is not an exception
because b1 is alive.
2. B is disinherited in 1996. T dies in 1997. b1 is
born in 1999.
a. Can b1 represent B? No. He was not living
at the time T died.
b. Can b1 inherit from T? No. Art. 1025, par.
Parish Priest of Victoria v. Rigor -- In the case, the
priest provided that his estate will go to any of
the nephews who may enter the priesthood.
The nephew claiming, however, was born after
the priest had died. As such, the nephew
cannot inherit.
 Second Requisite: A person although alive however
rendered incapacitated to succeed depending on:
1. ABSOLUTE— when a person whether natural
or juridical is incapacitated to succeed in any
form with regard to any property or any
person.
o Those who are not living, or
inexistence at the time of the death of
the decedent.
o Those who cannot be identified as
such (Art 845)
o Individuals, associations, and
corporations not permitted by law to
inherit.(Art. 1027, no. 6).
2. RELATIVE— when incapacity of a person to
succeed by reason of a special relation which
he has to the person whose estate is under
consideration to other persons or properties
disposed of.
o because of possible undue influence
or interest (Art. 1027 nos. 1 to 5).
o because of public policy and morality.
(Art. 1028 read together with Art. 739).
o because of unworthiness. (Art. 1032).
o By operation of law such as the guilty
spouse to inherit from the innocent
spouse in legal separation; by Iron
Curtain Rule (Art. 992)
Art. 1026. A testamentary disposition may be made
to the State, provinces, municipal corporations,
private corporations, organizations, or
educational, or charitable purposes.
succeed under a will, unless there is a provision to
the contrary in their charter or the laws of their
creation, and always subject to the same.
 This article expressly recognizes the capacity to
succeed not only of juridical persons, it includes
organizations for religious, scientific, cultural,
educational, or charitable purposes and need not be
registered with SEC.
 It is evident that such associations are not juridical
persons who did not acquire juridical personality by
the registration or by charter. It is therefore apparent
that the right of associations to succeed ex
testamanto or in the will constitutes an exception to
the rule as capacity to succeed because of birth
atleast already alive.
 Some of the organizations referred to in this Article
are juridical persons and corporations public or
private, others are not organizations or associations.
 In the case of organizations or associations, they are
allowed to inherit, not because they have juridical
existence, but because of this legal fiction in the
Article.
 In the case of juridical persons, it is not enough that
they have been conceived by certain individuals; it is
essential that they have complied with all the
requirements for the existence of juridical persons.
Article 1027. The following are incapable of
succeeding:
(1) The priest who heard the confession of the
testator during his last illness, or the minister
of the gospel who extended spiritual aid to him
during the same period;
(2) The relatives of such priest or minister of the
gospel within the fourth degree, the church,
 order, chapter, community, organization, or
institution to which such priest or minister may
belong;
(3) A guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the guardianship
have been approved, even if the testator
should die after the approval thereof;
nevertheless, any provision made by the ward
in favor of the guardian when the latter is his
ascendants, descendant, brother, sister, or
spouse, shall be valid;
(4) Any attesting witness to the execution of a will,
the spouse, parents, or children, or any one
claiming under such witness, spouse, parents,
or children;
(5) Any physician, surgeon, nurse, health officer
or druggist who took care of the testator
during his last illness;
(6) Individuals, associations and corporations not
permitted by law to inherit.
 Incapacity Based on Undue Influence or Interest
 There are 3 fundamental characteristics which can
be applied to the different incapacity or
disqualification in numbers 1 to 5 or Art 1027
(because Art 1027(6) is an absolute incapacity):
3. Based on Possibility of Undue Influence or
interest
4. Possible only in testamentary succession (not
applicable to the legitime)
5. They are not only relative in character but also
partial.
1. Priest or Minister
 In order that the priest or minister be
disqualified to inherit:
a. The priest must have heard the last
confession of the testator during his last
illness or the minister must have extended
spiritual aid to him during the same period
b. The testator must have executed the will
during or after such last illness
 “LAST ILLNESS”—conveys the idea that it
must be the illness of which the testator died,
however the fact that the testator have died in
some other cause does not necessarily
preclude the application of the disqualification.
What is essential is that there must be an
imminent or impending danger of the illness
being the last as far as the testator is
concerned at the time he executed the will.
 EXAMPLE
1. A, a priest, is a friend of B. B regularly
goes to confession to A. B then becomes
seriously ill. He executes a will instituting A
to 1/3 to his estate. Is this testamentary
disposition valid or is A capacitated to
inherit from B? Yes because he confesses
regularly and the will was done not
because of the confession.
2. On his deathbed, X makes a will instituting
Y, a priest. Thinking he will die, X calls Y to
confess. Is Y capacitated to inherit from X?
Yes because there is no presence of
undue influence.
 When does par. 1 apply, in other words, when
is the priest incapacitated to succeed?
a. When the confession is made prior to the
making of a will. If simultaneous, the priest
is still disqualified. If the will is made first,
the priest can inherit.
b. If the confession was made before the will
was made and the priest is the son of the
sick person, can the priest inherit upon the
death of the sick person? Yes. He can still
get the legitime but not that which was
instituted in his favor.
c. If the priest were a brother? Yes. He can
inherit by intestacy if applicable.
Disqualification applies only to
testamentary dispositions.
 "PRIEST OR MINISTER OF THE GOSPEL."--
Despite this apparent restriction to Christian
ministers, this applies to all spiritual ministers,
e.g., Buddhist monks because it is
conclusively presumed that the spiritual
minister used his moral influence to induce or
influence the sick person to make a
testamentary disposition in his favor.
 REQUISITES:
a. The will must have been executed during
the testator’s last illness;
b. The spiritual ministration must have been
extended during the last illness;
c. The will must have been executed during
or after the confession or spiritual
ministration.
2. Relatives of the priest of minister of the gospel
 This widens the disqualification not only limited
to the priest or spiritual ministers but including
or extended to the relative within the 4 th civil
degree as well as the church, order, chapter,
community, organization, or institution to which
they may belong. The reason is to prevent
possibility of undue influence.
 Omission was made of the spouse of the
minister of the gospel. What do you do? Apply
Art. 1031. To disqualify the spouse, you have
to show that the testamentary benefaction
 given to the wife was meant to benefit the
minister.
3. Guardian
 The guardian referred to may be the guardian
of the person or of the property since both can
exercise undue influence.
 GR: Disqualification applies when the
disposition is made: After the guardianship
began (beginning of the guardianship) up to
Before termination of guardianship
(approval of final accounts or lifting of
guardianship.)
 EXP: Disposition is valid when the guardian is
an ascendant, descendant, brother, sister or
spouse.
o This exception is not present in the
case of a priest. Why? They were
derived different laws.
o Seems to refer only to guardian of the
property. Commentators agree that
this also covers guardians over the
person because the latter have more
opportunity to influence the ward.
4. Attesting witness.
 Correlate this w/ Art. 823 (qualifications/
disqualifications to be a competent witness)
 Disqualification extends to the witness,
spouse, parents, or children or other relatives
or those who have interest in so far as the
witness and other persons are concerned.
 Though Par. 4 does not state so, it is
understood that the exception referred to in
Art. 823 applies, namely, the witness is
qualified to inherit if there are three other
competent and disinterested (not given
anything) witnesses to the will.
 Unlike the others the basis of the
disqualification in this case is not undue
influence but interest.
 (c) The notary public before whom the will is
acknowledged is NOT disqualified by the law
to inherit. (Incapacities should be construed
strictly). Observe however that the notary
public should have been disqualified, for he
stands in the same position as the attesting
witnesses. After all, under Sec. 22 of the 1889
Notarial Law, he was disqualified to inherit.
 (d) If the witnesses is not given any
testamentary disposition, but instead burdened
with a duty, such as that of selling or
encumbering, the burden can properly be
made, provided that the witness accepts the
responsibility.
5. Physician, surgeon, nurse, health officer or
druggist.
 The disqualification is for the same reason as
that of priest and guardian-- undue influence.
 REQUISITES:
a. The will was made during the last illness
b. The sick person must have been taken
cared of during his last illness. Medical
attendance was made.
c. The will was executed during or after he
was being taken cared of.
 Disqualification is not extended to the
relatives of the Physician, surgeon,
nurse, health officer or druggist. Unlike
in the case of the guardian law makes
no distinction here. Hence if the
Physician, surgeon, nurse, health
officer or druggist who took care of the
testator during his last illness happens
to be the spouse, ascendant or
descendant, brother or sister, the
disqualification would still be
applicable to the testamentary
succession.
6. Individuals, associations, and corporations not
permitted by law to inherit.
 This refers to absolute, not relative incapacity
not because of moral influence but because
the law provides for the same.
Art. 1028. The prohibitions mentioned in article
739, concerning donations inter vivos shall apply
to testamentary provisions.
Article 739. The following donations shall be void:
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the
donation;
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his
office.
In the case referred to in No. 1, the action for
declaration of nullity may be brought by the spouse
of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence
in the same action.
 In the case referred to in (a), the action for
declaration of nullity may be brought by the spouse
of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence
in the same action.
 Disqualifications are based on good morals and
public policy.
 This applies only to testamentary succession which
is not only relative but also relative.
Art. 1029. Should the testator dispose of the whole
or part of his property for prayers and pious works
for the benefit of his soul, in general terms and
without specifying its application, the executor,
with the court's approval shall deliver one-half
thereof or its proceeds to the church or
denomination to which the testator may belong, to
be used for such prayers and pious works, and the
other half to the State, for the purposes mentioned
in article 1013.
 Institution of the soul of the testator-- Disposition
in favor of:
(a) prayers;
(b) pious works
 That rule can be applied, it is required that the
1. Testator must have disposed of the estate for
prayers and PIOUS WORKS for the benefit of
the soul
2. Disposition is in GENERAL TERMS
3. Disposition does NOT SPECIFY its
application. (Therefore, if a particular heir,
devisee, legatee, or stranger is burdened with
the duty, or if a definite place or date is fixed
for the prayers, the Article does not apply.)
 EXAMPLE “1/2 to the Church to which the testator
belongs and 1/2 to the State.” This is because of Art.
1029, this is not a disposition in favor of an unknown
person.
VILLAVICENCIO v QUINIO, ET AL.-- Considering the
provisions of the will of the deceased E. Z.
del R. in their entirety, her collateral relatives,
not being forced heirs, are not entitled to
succeed her as to the remainder of her
properties, which does not exist, as to the
naked ownership thereof. Said testamentary
provisions, whose validity is not here
questioned, should be complied with because
the testatrix, not having forced heirs may
dispose of her properties as she did in her
will, for masses and pious works for the
benefit of her soul and those of her relatives,
as provided in article 747 of the Civil Code.
Art. 1030. Testamentary provisions in favor of the
poor in general, without designation of particular
persons or of any community, shall be deemed
limited to the poor living in the domicile of the
testator at the time of his death, unless it should
clearly appear that his intention was otherwise.
The designation of the persons who are to
be considered as poor and the distribution of the
property shall be made by the person appointed by
the testator for the purpose; in default of such
person, by the executor; and should there be no
executor, by the justice of the peace, the mayor,
and the municipal treasurer, who shall decide by a
majority of votes all questions that may arise. In
all these cases, the approval of the Court of First
Instance shall be necessary.
The preceding paragraph shall apply when
the testator has disposed of his property in favor
of the poor of a definite locality.
 This is limited to the poor living at the domicile of the
testator upon his death. This is not clear. What is the
scope of domicile? Does it refer to country, province,
city or barangay?
 Who is to designate? (In the order of preference)
a. Person appointed by the testator for that
purpose
b. Executor
c. MTC judge, mayor, municipal treasurer. This
never happens because if there are no a and
b, the court appoints an administrator.
Art. 1031. A testamentary provision in favor of a
disqualified person, even though made under the
guise of an onerous contract, or made through an
intermediary, shall be void.
 What you cannot do directly, you cannot do
indirectly. This is the same as Art. 867, par. 4.--
Use of a (a) dummy; (b) contract
Article 1032. The following are incapable of
succeeding by reason of unworthiness:
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or
immoral life, or attempted against their virtues;
(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 to be 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.
 Fundamental Characteristics applied to different
incapacities which are enumerated in 1042:
1. They are based on offenses committed by the
disqualified person against the person whose
estate is under consideration
2. They are applicable to both testate and
intestate succession.
3. They are absolute in character. Hence, If the
heir disqualified is a compulsory heir,
Incapacity does not only the testate aspect but
also in the legitime.
 Grounds 1, 2, 3, 5 and 6 are the same as in
disinheritance.
 NUMBER 4 has no application because there is no
obligation to make an accusation or report. There is
no law that obligates to accuse. Only a civic or moral
duty but not a legal duty.
 NUMBER 5 the heir who is incapable of succeeding
because of unworthiness is the person who is
convicted of adultery or concubinage with the
spouse of the decedent. The spouse is not included
only the person who has been convicted. Hence as
far as the law is concerned the husband or wife who
is convicted of adultery or concubinage is not
unworthy to inherit from the decedent.
 NUMBERS 6, 7 and 8 cover six cases of acts
relating to a will:
a. Causing the testator to make a will
b. Causing the testator to change an existing will
c. Preventing the decedent from making a will
d. Preventing the testator from revoking his will
e. Supplanting, concealing, or altering the
testator's will.
f. Falsifying or forging a supposed will of the
decedent.
 There is no conflict with disinheritance despite
similar grounds.
 EXAMPLE: A, son of B, tries to kill B. B may
disinherit him or not. If B disinherits him under Art.
919, then A is disqualified to inherit. However, even if
B did not disinherit A, A is incapacitated to inherit
because of Art. 1032. If disinherited under Art. 919,
there is double disinheritance. Disinheritance in the
will is redundant. In the common grounds, you do
not have to disinherit in Art. 919 since the effect of
Articles 919 and 1032 are the same.
Art. 1033. The causes of unworthiness shall be
without effect if the testator had knowledge thereof
at the time he made the will, or if, having known of
them subsequently, he should condone them in
writing.
 Rules for condonation
1. "Had knowledge at the time he made the
will."-- In this case, it is presumed that the
testator had pardoned the offender.
2. "Known subsequently."-- Needs pardon in
writing
 Since acts of unworthiness within the meaning of
1032 or offenses directed against the decedent, the
person whose estate is under consideration, only the
decedent himself and no other can erase the effects
of such acts by pardoning the offense either
EXPRESSLY(in writing) or IMPLIEDLY(when the
testator despite knowledge of the unworthiness
executes a will instituting the unworthy person who
becomes his heir)
 Although the law does not expressly say so, it is
clear that this express pardon takes place in
testamentary or intestate succession while implied
pardon can only takes place in testamentary
succession.
 The act of the decedent in pardoning an act of
unworthiness must not be confused with the
reconciliation in disinheritance. for pardoning acts of
unworthiness it is unilateral, based on the acts of
testator only however for reconciliation it requires a
bilateral act from the testator and the beneficiary.
The fact that there is reconciliation between the
decedent and the unworthy heir does not necessarily
mean that the effects of acts of unworthiness are
already erased.
 Under the code the subsequent reconciliation
deprives the testator the right to disinherit and
renders ineffectual any disinheritance that may have
been made. It cannot however erase the acts of
unworthiness.
 Problem: In disinheritance, incapacity to disinherit is
lifted by reconciliation (no form). But in Art. 1033,
there must be a pardon in writing.
o In Art. 919 - express will -- reconciliation is
enough
o In Art. 1033 - presumed will -- needs written
pardon.
 Problem arises if the testator made a will
disinheriting. What rule do you apply if the reason for
disinheriting was a common ground?
o YES--If you follow the rules of disinheritance.
o NO--If you follow the rules of unworthiness.
 Commentators.-- Rules of disinheritance should
apply. To make the rules of unworthiness apply
would be giving precedence to the presumed will
over the express will.
Art. 1034. In order to judge the capacity of the heir,
devisee or legatee, his qualification at the time of
the death of the decedent shall be the criterion.
 In cases falling under Nos. 2, 3 or 5 of
article 1032, it shall be necessary to wait until final
judgment is rendered, and in the case falling under
No. 4, the expiration of the month allowed for the
report.
If the institution, devise or legacy should
be conditional, the time of the compliance with the
condition shall also be considered.
 Time to determine the capacity of the heir.
(1.) Time of death or the time succession opens.
(2.) Time of final judgment when conviction is
needed.
(3.) Both the time of compliance or happening of
the condition and time of death of the
decedent if conditional
Art. 1035. If the person excluded from the
inheritance by reason of incapacity should be a
child or descendant of the decedent and should
have children or descendant, the latter shall
acquire his right to the legitime.
The person so excluded shall not enjoy the
usufruct and administration of the property thus
inherited by his children.
 The effect of incapacity involving compulsory heirs.
So if the heir incapable of succeeding as a
compulsory heir whether or not his right to his
legitime is affected shall depend on the cause of
incapacity.
1. If due to causes specified in Art 1027 or Art.
739 only the free portion given to the heir is
affected and not his legitime. Thus he is
incapacitated to succeed as a voluntary heir,
legatee or devisee but not as a compulsory
heir.
2. If the incapacity is due to any causes
mentioned in unworthiness in 1032, it is clear
that even the legitime of the CH who
committed the act of unworthiness is affected.
This applies not only to the share to which he
is entitled by force of the testator’s will but also
to the share to which he is entitled by law. If
the cause of the capacity is rendered true, it is
absolute exclusion because even the legitime
of the CH is also divested to him.
3. If the incapacity is personal it cannot attach to
the children and other descendants of the
incapacitated heir. Therefore this grants
representation to children or descendants.
 Art 1035 assumes that the free portion has already
been disposed of completely. But if not, then the
representation covers the legitime and intestate
succession.
 2ND PAR-- Talks about minority in so far as the
representatives are concerned so that the
incapacitated heir is also prevented from benefiting
in the inheritance.
Art. 1036. Alienations of hereditary property, and
acts of administration performed by the excluded
heir, before the judicial order of exclusion, are
valid as to third persons who acted in good faith;
but the co-heirs shall have a right to recover
damages from the disqualified heir.
 This applies the doctrine of innocent purchaser for
value without prejudice to the right to damages of the
prejudiced heirs against the incapacitated heir.
Art. 1037. The unworthy heir who is excluded from
the succession has a right to demand indemnity
for any expenses incurred in the preservation of
the hereditary property, and to enforce such
credits as he may have against the estate.
 This is the right given to every possessor, whether
he is in good or bad faith in Art. 443.
 Necessary expenses for preservation of the property
may be recovered (from the estate if heir did not
possess or other capacitated co-heirs.)
Art. 1038. Any person incapable of succession,
who, disregarding the prohibition stated in the
preceding articles, entered into possession of the
hereditary property, shall be obliged to return it
together with its accessions.
He shall be liable for all the fruits and rents
he may have received, or could have received
through the exercise of due diligence.
 Possessor in bad faith means he knows that he is
incapacitated but he still insisted on possessing the
portion or whole estate. He must return the property,
fruits and rents.
Art. 1039. Capacity to succeed is governed by the
law of the nation of the decedent.
 Note that capacity to inherit is not governed by the
national law of the heirs, devisees, or legatees, but
by the national law of the decedent.
Art. 1040. The action for a declaration of incapacity
and for the recovery of the inheritance, devise or
legacy shall be brought within five years from the
time the disqualified person took possession
thereof. It may be brought by anyone who may
have an interest in the succession.
 Right of action must be exercised within five years
1. for declaration of incapacity
2. and for the recovery of the inheritance (devise
or legacy)
 If one brings the action only for a declaration of
incapacity, he cannot recover possession; the action
must be for BOTH declaration and recovery, either is
same case or separate case

 Anyone who may have an interest in the succession,
even the estate itself.
Section 3.--
ACCEPTANCE AND REPUDIATION OF THE
INHERITANCE
While it is true that successional rights are transmitted
upon death of the decedent, it must be observed that it
is absolutely necessary that those who are called to
the succession either by will or by operation of law
must accept the inheritance, legacy or devise. So long
as there is no manifestation of acceptance there can
be no transmission of the successional rights.
Art. 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and
free.
 Acceptance refers to the act by virtue of which an
heir legatee or devisee manifests his desire in
accordance with the formalities required by law to
succeed the inheritance, devise or legacy.
 Repudiation refers to the act by virtue of which an
heir legatee or devisee manifests his desire in
accordance with the formalities required by law NOT
to succeed the inheritance, devise or legacy.
 Three basic characteristics:
1. Voluntary and free
2. Retroactive
3. Once made, it is irrevocable
 Basic Rules
1. Rules for acceptance are more liberal than the
rules of renunciation because the former are
beneficial to the heir while the latter is
prejudicial to the heir.
2. In case an heir is incompetent/ insane or a
minor, acceptance or repudiation must be
made by a representative. In case of
renunciation, court approval is necessary.
Art. 1042. The effects of the acceptance or
repudiation shall always retroact to the moment of
the death of the decedent.
 This is because of Art. 777 which states that "the
right to the succession are transmitted from the
moment of the death of the decedent."
Art. 1043. No person may accept or repudiate an
inheritance unless he is certain of the death of the
person from whom he is to inherit, and of his right
to the inheritance.
 This article requires:
1. certainty of death;
2. certainty of the right to the inheritance
Art. 1044. Any person having the free disposal of
his property may accept or repudiate an
inheritance.
Any inheritance left to minors or
incapacitated persons may be accepted by their
parents or guardians. Parents or guardians may
repudiate the inheritance left to their wards only by
judicial authorization.
The right to accept an inheritance left to
the poor shall belong to the persons designated by
the testator to determine the beneficiaries and
distribute the property, or in their default to those
mentioned in article 1030.
 PAR. 1-- Must have capacity to dispose of the
property:
1. Of age
2. Not restricted in his capacity to act.
 PAR. 2-- Minors or incapacitated can inherit and
acceptance may be through their parents or legal
guardians. But to renounce, judicial approval is
necessary.
 PAR. 3-- person designated or the executor
appointed by the court. To repudiate, such right must
be exercised only by the beneficiaries themselves
when they have been lawfully determined.
Art. 1045. The lawful representatives of
corporations, associations, institutions and
entities qualified to acquire property may accept
any inheritance left to the latter, but in order to
repudiate it, the approval of the court shall be
necessary.
 Acceptance needs a lawful representative while
renunciation needs court approval.
Art. 1046. Public official establishments can
neither accept nor repudiate an inheritance without
the approval of the government.
 Approval of the government including executive and
department head. If in LGU, a sanggunian resolution
is necessary.
Art. 1047. A married woman of age may repudiate
an inheritance without the consent of her husband.
 GR: A married woman may accept without the
consent of her husband.
EXP: If she is insane. In this case, however, the
marriage is not the reason for the incapacity.
Art. 1048. Deaf-mutes who can read and write may
accept or repudiate the inheritance personally or
through an agent. Should they not be able to read
and write, the inheritance shall be accepted by
their guardians. These guardians may repudiate
the same with judicial approval.
 GR: Being a deaf-mute is not a restriction on the
ability to accept or renounce as long as he can read
and write. He may accept or renounce personally
or through an agent
 EXP: If he cannot read or write, he can only accept
through a guardian. If he renounces, the
renunciation needs court approval.
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public
or private document.
A tacit acceptance is one resulting from the
acts by which the intention to accept is necessarily
implied, or which one would have no right to do
except in the capacity of an heir.
Acts of mere preservation or provisional
administration do not imply an acceptance of the
inheritance if, through such acts, the title or
capacity of an heir has not been assumed.
 Forms of acceptance:
1. EXPRESS.-- In clear and explicit terms. In
writing, whether in a private or public
document.
2. TACIT.-- Art. 1050.-- Results from acts from
which intent to accept is implied.
3. IMPLIED.-- Art. 1057.-- If does not do anything
w/in thirty (30) days, then it is deemed
accepted.
Art. 1050. An inheritance is deemed accepted:
(1) If the heir sells, donates, or assigns his right to
a stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though
gratuitously, for the benefit of one or more of
his co-heirs;
(3) If he renounces it for a price in favor of all his
co-heirs indiscriminately; but if this
renunciation should be gratuitous, and the co-
heirs in whose favor it is made are those upon
whom the portion renounced should devolve
by virtue of accretion, the inheritance shall not
be deemed as accepted.
 Acceptance in a tacit manner
 PAR. 1-- Acts of ownership-- to do these acts, the
heir must have accepted the inheritance.
 PAR. 2-- Heir is really giving it-- to do this, the heir
must have accepted it first
 PAR. 3-- Selling it-- must have acquired something
before you can sell. However, if it is gratuitous in
favor of co-heirs indiscriminately, to whom it would
have devolved by accretion, then it is really through
renunciation.
Art. 1051. The repudiation of an inheritance shall
be made in a public or authentic instrument, or by
petition presented to the court having jurisdiction
over the testamentary or intestate proceedings.
 Forms of renunciation:
1. Public or authentic document
2. Petition presented to the court.
 Strict form is required. One cannot renounce tacitly
or impliedly. Thus acceptance may be expressly,
tacitly or impliedly but renunciation is done
expressly.
Art. 1052. If the heir repudiates the inheritance to
the prejudice of his own creditors, the latter may
petition the court to authorize them to accept it in
the name of the heir.
The acceptance shall benefit the creditors
only to an extent sufficient to cover the amount of
their credits. The excess, should 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.
 Accion Pauliana.-- The right of the creditor to set
aside dispositions or renunciations prejudicial to
them.
 How much? To the extent to cover the debt only.
The excess is given to whom it would properly
belong.
 This assumes that you do not have enough money
to pay your creditors.
Art. 1053. If the heir should die without having
accepted or repudiated the inheritance his right
shall be transmitted to his heirs.
 This is not a right of representation because the right
has vested in him at the time the decedent died.
 The right to accept or repudiate is transmitted.
Art. 1054. Should there be several heirs called to
the inheritance, some of them may accept and the
others may repudiate it.
T
Estate =900
A+BC
a1r a2r a3
B= 300 + 100=400
C= 300+ 100= 400
a3 =100
 T died on Jan. 1, 1996. A died on Jan. 14, 1996
without having accepted or repudiated the
inheritance. a1, a2 and a3 get the rights of A. Any of
them may renounce.
 If a1 and a2 renounce, then 2/3 of A's share is
deemed renounced. No accretion takes place
between a1, a2 and a3. But will accrue in favor of B
and C.
Art. 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato,
repudiates the inheritance in his capacity as a
testamentary heir, he is understood to have
repudiated it in both capacities.
Should he repudiate it as an intestate heir,
without knowledge of his being a testamentary
heir, he may still accept it in the latter capacity.
 If the heir is both a testate and intestate heir:
1. IF HE RENOUNCES IN A TESTATE
CAPACITY.-- He is deemed to have renounced
in both capacities. Why? If the heir rejected an
express will, then he is deemed to have
rejected the implied will.
2. IF HE RENOUNCES IN AN INTESTATE
CAPACITY, whether he had knowledge that he
was a testate heir or not, only his capacity to
inherit as an intestate heir is renounced. Even
if he had knowledge, he may want to accept
the testate share to show respect for the will of
the testator. Philosophy behind this is that
testamentary succession is superior to
intestate succession
Art. 1057. Within thirty days after the court has
issued an order for the distribution of the estate in
accordance with the Rules of Court, the heirs,
devisees and legatees shall signify to the court
having jurisdiction whether they accept or
repudiate the inheritance.
If they do not do so within that time, they
are deemed to have accepted the inheritance.
 Implied acceptance-- The thirty day period is
counted from the receipt of the order and not from
the opening of succession.
Section 4.—
EXECUTORS AND ADMINISTRATORS
Art. 1058. All matters relating to the appointment,
powers and duties of executors and administrators
and concerning the administration of estates of
deceased persons shall be governed by the Rules
of Court.
Art. 1059. If the assets of the estate of a decedent
which can be applied to the payment of debts are
not sufficient for that purpose, the provisions of
articles 2239 to 2251 on Preference of Credits shall
be observed, provided that the expenses referred
to in article 2244, No. 8, shall be those involved in
the administration of the decedent's estate.
Art. 1060. A corporation or association authorized
to conduct the business of a trust company in the
Philippines may be appointed as an executor,
administrator, guardian of an estate, or trustee, in
like manner as an individual; but it shall not be
appointed guardian of the person of a ward.
 Articles 1058 to 1060-- For the procedural aspects
see Rules 73 to 91 of the Rules of Court.

 Legitime is treated separately.-- This may be

accepted or renounced separately. The heir may
accept the testate share and reject the legitime and
vice versa.

Art. 1056. The acceptance or repudiation of an

inheritance, once made, is irrevocable, and cannot
be impugned, except when it was made through
any of the causes that vitiate consent, or when an
unknown will appears.

 GR: Irrevocability of acceptance or repudiation.

 EXP:
1. Vitiated consent, e.g., when there is fraud
2. When an unknown will appears.-- You cannot
renounce what you do not know.

Section 5.--
COLLATION
 Collation the act of returning or restoring to the
common mass of the hereditary estate, either actual
usually fictitiously property which the person may
have received from the decedent during the latter’s
lifetime but which is understood for legal purposes
as an advance to the inheritance.
 The law aims to equalize the benefits.
Art. 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.
 Principle of the untouchability of the legitime
(Arts. 842, 864 and 872
(1.) The testator cannot deprive his compulsory
heirs of their legitime even during his lifetime.
EXP: Valid disinheritance
(2.) He cannot impose upon the same any burden
encumbrance, condition, or substitution of any
kind.
EXP: Expressly prohibits the partition of
hereditary estate for the maximum period of 20
years
 Attempt to Deprive CH of their Legitime
1. Valid disinheritance- by the testator’s own act
deprives his compulsory heir of their legitime
2. Imperfect disinheritance- partial annulment of
institution of the heirs to cob
3. Preterition- totally omitted from all the benefit
thus total or absolute annulment of institution of
heirs.
4. Leaving CH by any title any property or amount
which is not sufficient to satisfy the legitime to
which the said heir is entitled by law.
Art. 905. Every renunciation or compromise as
regards a future legitime between the person
owing it and his compulsory heirs is void, and the
latter may claim the same upon the death of the
former; but they must bring to collation whatever
they may have received by virtue of the
renunciation or compromise.
 This is the prodigal son provision.
 The reason is that the right to a future legitime is a
mere expectancy, an inchoate right regarding future
inheritance, hence, it cannot be made the subject of
a contract inasmuch as it is against public policy.
 Money received by the compulsory heir (is)
considered as advance on his legitime. Art. 905
prohibits any contract or agreement between the
predecessor and the successor. Even if there is an
agreement, the same is not binding and the heir can
still get his legitime minus the advance.
Art. 906. Any compulsory heir to whom the testator
has left any title less than the legitime belonging to
him may demand that the same be fully satisfied.
 "By any title" means by gratuitous title during the
lifetime. It also covers donation inter vivos
which are considered advances on the legitime.
 Relate this provision to Articles 909 and 910. Also to
Art. 1062 where the testator expresses otherwise for
purposes of collation only and not preterition.
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.
 Reduction of Inofficious Testamentary
Dispositions
 The testamentary dispositions refer not only to those
institutions in favor of voluntary heirs but also to
legacies devises and other charges which are
chargeable against the free portion of the hereditary
estate. Such testamentary dispositions are
considered inofficious if they are in excess of the
free portion thus resulting to the impairment of the
legitime.
 Relate this provision to Art. 771 and 752
Art. 752. The provisions of Article 750
notwithstanding, no person may give or receive, by
way of donation, more than he may give or receive by
will.
The donation shall be inofficious in all that it
may exceed this limitation.
Art. 772. Only those who at the time of the donor's
death have a right to the legitime and their heirs and
successors in interest may ask for the reduction or
inofficious donations.
Those referred to in the preceding paragraph
cannot renounce their right during the lifetime of the
donor, either by express declaration, or by consenting
to the donation.
 The donees, devisees and legatees, who are
not entitled to the legitime and the creditors of the
deceased can neither ask for the reduction nor avail
themselves thereof.
Art. 908. To determine the legitime, the value of the
property left at the death of the testator shall be
considered, deducting all debts and charges,
which shall not include those imposed in the will.
To the net value of the hereditary estate,
shall be added the value of all donations by the
testator that are subject to collation, at the time he
made them
 How to compute the value of the net estate:
1. Inventory all gross assets.
2. Deduct unpaid debts from the gross assets
since the debts of the decedent are to be paid
by his estate.
3. Available assets= Gross assets - Debts.
4. Add donations inter vivos made by the
decedent during his lifetime to anyone,
compulsory heirs and strangers. The value of
the donated property is to be ascertained at
the time the donation was made. Any change
in the value is for the account of the donee-
owner.
NET HEREDITARY ESTATE = Available assets +
Donations
 EXAMPLE:
Gross Assets P2,500,000
Outstanding debts 500,000
Available assets =P2,000,000
Donation to eldest son + 300,000
1991 stock to brother + 500,000
Donation to daughter + 200,000
Net Estate =P3,000,000
Legitime = 1,500,000
MATEO v LAGUA— We are in accord with the Court
of Appeals that Civil Case No. 442 is not one
exclusively for annulment or revocation of the
entire donation, but of merely that portion
thereof allegedly trenching on the legitime of
respondent Gervasio Lagua; that the cause of
action to enforce Gervasio's legitime, having
accrued only upon the death of his father on
12 November 1958, the dispute has to be
governed by the pertinent provisions of the
new Civil Code; and that a donation proper
nuptias property may be reduced for being
inofficious. Contrary to the views of appellants
(petitioners), donations proper nuptias (by
reason of marriage) are without onerous
consideration, the marriage being merely the
occasion or motive for the donation, not its
causa. Being liberalities, they remain subject
to reduction for inofficiousness upon the
donor's death, if they should infringe the
legitime of a forced heir.
In other words, before any conclusion about
the legal share due to a compulsory heir may
be reached, it is necessary that certain steps
be taken first. The net estate of the decedent
must be ascertained, by deducting payable
obligations and charges from the value of the
property owned by the deceased at the time of
his death; then, all donations subject to
collation would be added to it. With the partible
Preterition Incomplete Legitime
(Art 854) (Art 906)
Total omission of CH in The CH received his
the direct line; total legitime but less than the
deprivation of the legitime portion to which he is
entitled by law.
Total annulment of Up to the completion of
institution of heirs legitime, it may not annul
institution.
estate thus determined, the legitimes of the
compulsory heir or heirs can be established;
and only thereafter can it be ascertained
whether or not a donation had prejudiced the
legitimes. Certainly, in order that a donation
may be reduced for being inofficious, there
must be proof that the value of the donated
property exceeds that of the disposable free
portion plus the donee's share as legitime in
the properties of the donor. In the present
case, it can hardly be said that, with the
evidence then before the court, it was in any
position to rule on the inofficiousness of the
donation involved here, and to order its
reduction and reconveyance of the deducted
portion to the respondents.
LIGUEZ v CA— In our opinion, the Court of Appeals
erred in applying to the present case the pari
delicto rule. First, because it cannot be said
that both parties here had equal guilt when we
consider that as against the deceased
Salvador P. Lopez, who was a man advanced
in years and mature experience, the appellant
was a mere minor, 16 years of age, when the
donation was made; that there is no finding
made by the Court of Appeals that she was
fully aware of the terms of the bargain entered
into by and Lopez and her parents; that, her
acceptance in the deed of donation (which
was authorized by Article 626 of the Old Civil
Code) did not necessarily imply knowledge of
conditions and terms not set forth therein; and
that the substance of the testimony of the
instrumental witnesses is that it was the
appellant's parents who insisted on the
donation before allowing her to live with
Lopez. These facts are more suggestive of
 seduction than of immoral bargaining on the
part of appellant. It must not be forgotten that
illegality is not presumed, but must be duly
and adequately proved.
The situation of the children and forced heirs
of Lopez approximates that of the widow. As
privies of their parent, they are barred from
invoking the illegality of the donation. But their
right to a legitime out of his estate is not
thereby affected, since the legitime is granted
them by the law itself, over and above the
wishes of the deceased. Hence, the forced
heirs are entitled to have the donation set
aside in so far as in officious: i.e., in excess of
the portion of free disposal (Civil Code of
1889, Articles 636, 654) computed as provided
in Articles 818 and 819, and bearing in mind
that "collationable gifts" under Article 818
should include gifts made not only in favor of
the forced heirs, but even those made in favor
of strangers, as decided by the Supreme Court
of Spain in its decisions of 4 May 1899 and 16
June 1902. So that in computing the legitimes,
the value of the property to herein appellant,
Conchita Liguez, should be considered part of
the donor's estate. Once again, only the court
of origin has the requisite date to determine
whether the donation is inofficious or not.
The decisions appealed from are reversed and
set aside, and the appellant Conchita Liguez
declared entitled to so much of the donated
property as may be found, upon proper
liquidation, not to prejudice the share of the
widow Maria Ngo in the conjugal partnership
with Salvador P. Lopez or the legitimes of the
forced heirs of the latter.
DEL VAL v DEL VAL-- Counsel also claim that the
proceeds of the insurance policy were a
donation or gift made by the father during his
lifetime to the defendant and that, as such, its
ultimate destination is determined by those
provisions of the Civil Code which relate to
donations, especially article 819. This article
provides that "gifts made to children which are
not betterments shall be considered as part of
their legal portion."
We cannot agree with these contentions. The
contract of life insurance is a special contract
and the destination of the proceeds thereof is
determined by special laws which deal
exclusively with that subject. The Civil Code
has no provisions which relate directly and
specifically to life- insurance contracts or to the
destination of life insurance proceeds. That
subject is regulated exclusively by the Code of
Commerce which provides for the terms of the
contract, the relations of the parties and the
destination of the proceeds of the policy.
The proceeds of the life-insurance policy being
the exclusive property of the defendant and he
having used a portion thereof in the
repurchase of the real estate sold by the
decedent prior to his death with right to
repurchase, and such repurchase having been
made and the conveyance taken in the names
of all of the heirs instead of the defendant
alone, plaintiffs claim that the property belongs
to the heirs in common and not to the
defendant alone.
We are not inclined to agree with this
contention unless the fact appear or be shown
that the defendant acted as he did with the
intention that the other heirs should enjoy with
him the ownership of the estate — in other
words, that he proposed, in effect, to make a
gift of the real estate to the other heirs. If it is
established by the evidence that that was his
intention and that the real estate was delivered
to the plaintiffs with that understanding, then it
is probable that their contention is correct and
that they are entitled to share equally with the
defendant therein. If, however, it appears from
the evidence in the case that the conveyances
were taken in the name of the plaintiffs without
his knowledge or consent, or that it was not his
intention to make a gift to them of the real
estate, then it belongs to him. If that facts are
as stated, he has two remedies. The one is to
compel the plaintiffs to reconvey to him and
the other is to let the title stand with them and
to recover from them the sum he paid on their
behalf.
Art. 909. Donations given to children shall be
charged to their legitime.
Donations made to strangers shall be
charged to that part of the estate of which the
testator could have disposed by his last will.
Insofar as they may be inofficious or may
exceed the disposable portion, they shall be
reduced according to the rules established by this
Code.
Art. 910. Donations which an illegitimate child*
may have received during the lifetime of his father
or mother, shall be charged to his legitime.
Should they exceed the portion that can be
freely disposed of, they shall be reduced in the
manner prescribed by this Code.
 Rules on donation:
1. DONATION TO CHILD, whether legitimate or
illegitimate Donation to parents or ascendants
(Art. 1062)
o GR: Charged to the legitime
o EXP: If the testator provides
otherwise. (Art. 1062.)
2. DONATION TO SPOUSE
 o GR: Not allowed.  Reasons Why Donations Inter Vivos are
o EXP: Gifts of moderate value; treat the Preferred Over Dispositions Mortis Causa If
same as a donation to a compulsory there is an impairment in the legitime:
heir.
o because they were made first, showing
3. DONATION TO A STRANGER -- charged to preference in the generosity of the decedent.
the free portion.
o because a donation is a bilateral act, there
should be acceptance on the part of the
 EXAMPLE: donee, while a disposition mortis causa, as by
Gross Estate 70,000 a devise or a legacy, is in a sense, unilateral.
Less: Debts 35,000
Available assets 35,000 o because donations are generally irrevocable
Add: Donations: by their very nature.
1987 to A 15,000
1989 to M 30,000
1991 to D 40,000
Net Hereditary Estate 120,000  Order of Preference in the Hereditary Estate:
Legitimes: Donation Lack on 1. Give the legitimes.
Advance: Legitime
A 20,000 15,000 5,000 2. Then the donations inter vivos which are not
B 20,000 0 20,000 inofficious
C 20,000 0 20,000
D 10,000 40,000 (30,000) 3. Then the preferred legacies and devises.
P45,000 is needed to comply w/ the legitime but we 4. Then all other devises and legacies pro rata
only have 35,000 available assets. So we need (in case the estate is not sufficient).
10,000. Reduce the donations.
a. Donation to M is a donation to a stranger  Order of Reduction:
b. Donation to A is not subject to reduction
c. Donation to D is considered advance to his 1. LEGACIES AND DEVISES. (Art. 907.)
legitime and more than his share in the o GR: Pro-rata.
inheritance. Therefore the first to bear the o EXP: Preferred ones as stated by the
reduction is the donation to D, so deduct
testator will be the last to be reduced
10,000 from him
among the devises and legacies if still
A = 20,000
needed.
B = 20,000
C = 20,000
2. REDUCE DONATIONS TO STRANGERS.
D = 30,000
o GR: Most recent donation to be reduced
M = 30,000
first (earlier donations are preferred.) See
Art. 773
Art. 911. After the legitime has been determined in
accordance with the three preceding articles, the
 Note: 1 and 2 will be reduced even up to 0 as
reduction shall be made as follows:
long as needed.
(1) Donations shall be respected as long as the
legitime can be covered, reducing or annulling,
if necessary, the devise or legacies made in the  Application of Art. 911 and Art. 950
will;
o Art. 911--if there are compulsory heirs; applies
(2) The reduction of the devises or legacies shall
only when aside from the various legacies and
be pro rata, without any distinction whatever.
devises, there are legitimes to be preserved
If the testator has directed that a certain
(whether impaired or not by the testamentary
devise or legacy be paid in preference to others, it
provisions) or there are donations inter vivos
shall not suffer any reduction until the latter have
which should be respected as much as
been applied in full to the payment of the legitime.
possible.
(3) If the devise or legacy consists of a usufruct or
life annuity, whose value may be considered
o Art. 950--applies only when there are no
greater than that of the disposable portion, the
compulsory heirs may choose between compulsory heirs or when there are no
complying with the testamentary provision and inofficious donations inter vivos. In other
delivering to the devisee or legatee the part of words, if the reduction concerns itself merely
the inheritance of which the testator could with the legacies or devises, Art. 950 should
freely dispose. be applied.
Art. 912. If the devise subject to reduction should
consist of real property, which cannot be
conveniently divided, it shall go to the devisee if
the reduction does not absorb one-half of its
value; and in a contrary case, to the compulsory
heirs; but the former and the latter shall reimburse
each other in cash for what respectively belongs to
them.
The devisee who is entitled to a legitime
may retain the entire property, provided its value
does not exceed that of the disposable portion and
of the share pertaining to him as legitime.
Art. 913. If the heirs or devisees do not choose to
avail themselves of the right granted by the
preceding article, any heir or devisee who did not
have such right may exercise it; should the latter
not make use of it, the property shall be sold at
public auction at the instance of any one of the
interested parties.
 Art 912 covers cases where:
1. the devise has to be reduced and
2. the thing given as a devise is indivisible.
 Rules if the devisee is a stranger or is at the
same time a compulsory heir
1. If the reduction DOES NOT ABSORB 1 /2 of
the value of the property—it should be given to
the devisee.
2. If the reduction does ABSORBS MORE THAN
1/2 of the value of the thing—it should be
given to the compulsory heir.
 In either case, there should be pecuniary
reimbursement to the party who did not get his
physical portion of the thing devised.
 EXAMPLE:
1. A house worth 200 was devised to X, but
because it is excessive, it has to be reduced by
80. Since the reduction does not absorb one-half
of its value, the house goes to X, but X has to
pay the compulsory heirs the sum of 80. If the
reduction would be to the amount of 150, the
compulsory heirs will get the house, but they
have to give to X the sum of 50.
If the reduction absorbs exactly half the value or
100, the devisee should get the house just the
same after proper reimbursement. The intent of
the testator must prevail over the literal
statement of the law
A was a compulsory heir entitled to a legitime of
100. The free portion of the estate was 50. If A is
given a devise of a house worth 150, A can
retain the house but must reimburse the other
compulsory heirs 50.
2. A house worth P2 million was devised to X but
because it is excessive, it has to be reduced by
P800,000. The house should therefore go to X,
but if X does not want the house, the compulsory
heirs can get the house and just pay X the sum
of P1.2 million. If still the compulsory heirs do
not make use of this privilege, the property
should be sold at auction at the instance of any
of the interested parties, and the proceeds will
be divided accordingly.
Art. 914. The testator may devise and bequeath the
free portion as he may deem fit.
 This article is reinforcement of the nature of the
legitime and simply a restatement of Art. 842
Collation
 Three (3) senses:
1. COMPUTATION.-- Get together all assets,
subtract the debts and add the donations to
get the net hereditary estate.
2. IMPUTATION.-- Determine if the donation is
chargeable as advance to the legitime or
imputable to the free portion
o GR: If compulsory heir, imputable to the
legitime.
o EXP: If testator has provided otherwise.
3. RESTORATION/ RETURN—this mandates the
actual giving back of the estate as much as
needed to complete the legitimes. This will not
happen if the legitimes are not impaired.
Art. 1061. Every compulsory heir, who succeeds
with other compulsory heirs, must bring into the
mass of the estate any property or right which he
may have received from the decedent, during the
lifetime of the latter, by way of donation, or any
other gratuitous title, in order that it may be
computed in the determination of the legitime of
each heir, and in the account of the partition.
 First sense-- computation. The same as the third
step in Art. 908.
 Inaccuracy in the provision.-- "collation done by
compulsory heirs."-- ALL DONATIONS regardless to
whom made are subject to collation (provided there
is at least one compulsory heir because there will be
a legitime)
 The basis of collation is the consideration that what a
compulsory heir receives from the decedent during
 the lifetime of the latter is in the nature of an
advance to his inheritance. Hence in order to
equalize the legal portion to which the heirs are
entitled or which they shall eventually receive it is
necessary that such advance must be returned or
brought back but fictitiously only to the hereditary
estate.
 The same can be said to donation to stranger
requiring it to be returned or be restored to the mass
of hereditary estate so that proper division can be
made to the estate. The reason is that a person
cannot give by way of donation more than what he
can give by will.
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.
 Second sense-- imputation. (Articles 909, 910.)
 GR: Donation to a compulsory heir shall be
considered as advance to his legitime and must be
collated.
 EXP:
1. Donor provides otherwise-- In such a case,
it will be imputed to the free portion and not as
advance to his legitime.
2. Donee repudiates the inheritance— he
waives his legitime and his right as a
compulsory heir; therefore, he ceases to be
one.
 Although the law says “collation shall not take
place ...’’—this only means that the value of the
donation is no longer considered as an advance to
the legitime but imputed to the free portion because
the heir is now considered as stranger to the
inheritance. Hence there would still be collation.
Art. 1063. Property left by will is not deemed
subject to collation, if the testator has not
otherwise provided, but the legitime shall in any
case remain unimpaired.
 This Article’s use of the term “collation” is rather
misleading because there is nothing to be brought
back to the estate inasmuch as it has not yet been
given away (devise or legacy)
 “Not subject to collation” here means merely that
the legacy or devise given should be imputed to the
free portion, and not the legitime. The testator can of
course provide otherwise.
 GR: This is imputed against the free portion and not
against the legitime.
EXP: If the testator provides otherwise—if the legacy
or devise is given to a compulsory heir, the legacy or
devise will be merged with his legitime provided that
it will not impaired.
Art. 1064. When 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.
 Second sense, imputation—COLLATION OF
REPRESENTATION
 "Grandchildren" refer to all descendants who inherit
by representation.
 Obligation to collate-- he must bring to collation not
only what he may have received as donation but
also what may have been donated to the person he
is representing.
 EXAMPLE: T has 2 children A and B. B
predeceased T but has 2 children b1 and b2.
T -In 1988, T donated to
B P70,000
AB+
-In 2001, T donated to
b1b2 b1 and b2 P50,000
o What will b1 and b2 impute when T dies?
Par. 1-- 1988 donation.-- Yes because B would
have imputed it if he were he alive.
Par. 2-- 2001 donation—Yes because required
by the provision.
Art. 1065. Parents are not obliged to bring to
collation in the inheritance of the ascendants any
property which may have been donated by the
latter to their children.
 Second sense, imputation.
 A person should not collate what his parent gave to
his child since he is not the recipient of the
conveyance.
 Against what part of estate conveyance
imputable— the donation to the grandchild should
be imputed to the free portion, since it is a donation
to a stranger.
 EXAMPLE: In 1995, T donated to a1. In 2001, T dies
while A is still alive.

T
AB
a1 b1 b2
o Will A impute the donation to a1? NO because
a1 is considered a stranger hence the
donation is considered as chargeable to the
free portion and not as advance to the legitime
of A.
Art. 1066. Neither shall donations to the spouse of
the child be brought to collation; but if they have
been given by the parent to the spouses jointly, the
child shall be obliged to bring to collation one-half
of the thing donated.
 Second sense, imputation.
 Rule: Donation given to the spouse will not be
imputed to the legitime of the descendant spouse
because the spouse is considered a stranger.
 “Non-collation” in this Article does not mean that the
value should not be computed. It only means that
although the value of the donation should be
computed (since all donations to strangers are also
computed or “collated”), its value should not be
considered as an advance of the legitime of the child
himself.
 EXAMPLE: Two cases:
T not as necessary as those to support books, tuition
W X
o T donates to W only-- imputed to the free
portion because she is not a compulsory heir.
o T donates to both X and W-- imputes 1/2 to
legitime of X and 1/2 to the free portion.
 NOTE:
 GR: Donation to a compulsory heir is
chargeable to the legitime or considered as
advance to the legitime.
EXP: if the testator provides otherwise, then
chargeable to the free portion.
 GR: Donations to strangers, other than
compulsory heirs, are always chargeable to
the free portion because there is no legitime to
speak of.
Art. 1067. Expenses for support, education,
medical, attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or customary
gifts are not subject to collation.
 These expenses are not considered donations;
their cause is not generosity, but moral, social and
legal obligations.
 “Not subject to collation” — their values are not
added to the hereditary estate; they are not
considered as advances of the inheritance,
whether as part of the legitime or part of the free
portion. All expenses including the support
required in the FC.
Art. 194. Support comprises everything indispensable
for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping
with the financial capacity of the family. x x x
Art. 1068. Expenses incurred by the parents in
giving their children a professional, vocational or
other career shall not be brought into collation
unless the parents so provide, or unless they
impair the legitime; but when their collation is
required, the sum which the child would have
spent if he had lived in the house and company of
his parents shall be deducted therefrom.
 GR: Not collated but imputed to the free portion.
 EXP: Considered as advance to the legitime:
1. When parents provide otherwise
2. When it impairs the legitimes of other
compulsory heirs.
 Expenses incurred in 1068 are not the same as
that in 1067. Expenses incurred by parents for the
child’s professional, vocational, or other career are
fees and matriculation. As a result of the difference
of 1067 and 1068, different rules must apply. This
is collation in the second sense, imputation. This
qualifies Art. 1067.
 GR: Expenses not collationable, as advance to the
legitime or imputable to the free portion.
 EXP: Art 1068.
Art. 1069. Any sums paid by a parent in
satisfaction of the debts of his children, election
expenses, fines, and similar expenses shall be
brought to collation.
 Second sense, imputation-- Advance to the
legitime
 This enumerates several cases in which the parents
tend for their children with the obligation on the part
of the latter to bring such expenses to collation after
the death of the parents. These expenses are no
different from that of a donation.
 The act of the parent n paying the debt of the child or
spending for the election of the favorite child to
public office or saving a child from disgrace by
 paying a fine or any similar act involving similar
expenses must be an act of liberality.
Art. 1070. Wedding gifts by parents and
ascendants consisting of jewelry, clothing, and
outfit, shall not be reduced as inofficious except
insofar as they may exceed one-tenth of the sum
which is disposable by will.
 Second sense, imputation. Wedding gifts.-
chargeable to the free portion.
 The wedding gifts here, although really donations,
are not chargeable to the legitime in view of the
sentimental importance of a wedding. Nevertheless,
they may be reduced if they exceed (for each child)
one-tenth of the free disposal. The excess shall be
collated or advance to the legitime.
 Two views:
1. LITERAL-- Cannot be beyond 1/10 of the free
portion. If it exceeds, return the excess.
2. LIBERAL.--
a. below 1/10 of the free portion, impute to
the free portion
b. above 1/10 of the free portion, impute to
the legitime.
 EXAMPLE: Estate is worth 600. There are 3
children. Legitimes = 300. When A got married, he
was given a gift of 40. This is more than 1/10 of the
free portion.
1. Literal = 30, impute to the legitime 10, return
2. Liberal= 30, impute to the free portion 10,
impute to the legitime.
Art. 1071. The same things donated are not to be
brought to collation and partition, but only their
value at the time of the donation, even though their
just value may not then have been assessed.
Their subsequent increase or deterioration
and even their total loss or destruction, be it
accidental or culpable, shall be for the benefit or
account and risk of the donee.
 Par. 1-- First and second senses, computation and
imputation. What do you compute? The value at the
time of the donation.
 Par. 2-- Any change in the value is for the account of
the donee because the donee is the owner of the
thing donated. (Res perit domino.)
Art. 1072. In the collation of a donation made by
both parents, one-half shall be brought to the
inheritance of the father, and the other half, to that
of the mother. That given by one alone shall be
brought to collation in his or her inheritance.
 First and second senses, computation and
imputation.
 This provision contemplates joint donation by
parents from their common property.
1. 1/2 computed for determination of the estate of
the husband.
2. 1/2 computed for determination of the estate of
the wife.
 Same rule for imputation w/ respect to the donee.
Impute 1/2 to father and 1/2 to mother.
Art. 1073. The donee's share of the estate shall be
reduced by an amount equal to that already
received by him; and his co- heirs shall receive
and equivalent, as much as possible, in property of
the same nature, class and quality.
 Second sense, imputation.— this is to equalize as
much as possible the inheritance of the heirs.
 In partition, there should be among heirs of the same
class, as much as possible, equality not only as to
value but also as to kind and nature. This is subject,
of course, to a contrary agreement of the heirs
concerned.
 EXAMPLE: T has 2 children A and B. T during his
lifetime donated a car worth P100,000 to B. When T
died, he left an estate worth P900,000. Since B is
supposed to receive a total of P500,000 he will be
given only P400,000. (He has already received
P100,000 by way of donation). A in turn should be
given, if possible, a car in the estate worth P100,000
and cash worth P400,000. If the car cannot be given,
as when the estate had only one car, Art. 1074
should be applied.
Art. 1074. Should the provisions of the preceding
article be impracticable, if the property donated
was immovable, the co-heirs shall be entitled to
receive its equivalent in cash or securities, at the
rate of quotation; and should there be neither cash
nor 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.
 Second sense, imputation.
 The situation contemplated refers to a case in which
the property donated is immovable and it is
impractical to give co-heirs an equivalent property
the same nature, class and quality. The rule is to
give the co-heirs its equivalent in cash or securities
at the rate of collation. If it is also impracticable or
impossible, the remedy is to sell at a public auction
as much as properties as may be necessary. The
rule is different if it is a movable or personal property.
In such case the co-heirs have the right to select
 personal property in the inheritance at its just price
because equalization in the heirs is impossible.
 Art 1074 applies if Art. 1073 is not possible.
1. Rights (if REAL property)
c. get property of same kind
d. if none, get cash or securities
e. if none, sell property to get cash
2. Rights (if PERSONAL property)
a. get property of same kind
b. if none, get equivalent (in value) personal
property (no right to demand CASH or to
demand a SALE to get cash)
Art. 1075. The fruits and interest of the property
subject to collation shall not pertain to the estate
except from the day on which the succession is
opened.
For the purpose of ascertaining their
amount, the fruits and interest of the property of
the estate of the same kind and quality as that
subject to collation shall be made the standard of
assessment.
 The rules stated in the article are in conformity with
the fundamental rules of succession. When the
property donated to one of the compulsory heirs, title
is vested in such donee once the donation is
perfected, it is but natural that fruits and interest on
the property shall also vest in the donee at that time.
However once rights in the succession are opened
and collation is now required, obligation to collate the
value of the same property also arises
 Thus, all the heirs called to the succession acquire
some right with respect to what is supposed to be
collated. It becomes a part of the mass of the
hereditary estate and the heirs become co-owners of
the estate the very moment of the death of the
decedent. Hence it follows that fruits and interests
shall also pertain to the hereditary estate.
 Third sense, return.
1. Assume that the property donated has to be
returned because the legitime has been
impaired. The return may be total or partial.
2. Donee may return: (a) property; (b) cash value
3. Obligation to return arises at the time of death.
The fruits are also returned from that time.
The amount depends on how much of the
property has to be returned.
 EXAMPLE: A donated to X a mango plantation.
1. If X has to return all, return all the fruits from
the time of the death of A. Fruits prior to the
death of A belong to X alone.
2. If X has to return 1/2, return 1/2 of the fruits
from the time of the death of A.
Art. 1076. The co-heirs are bound to reimburse to
the donee the necessary expenses which he has
incurred for the preservation of the property
donated to him, though they may not have
augmented its value.
The donee who collates in kind an
immovable, which has been given to him, must be
reimbursed by his co-heirs for the improvements
which have increased the value of the property,
and which exists at the time the partition is
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.
 Third sense, return-- on the assumption that the
donation is totally inofficious. Thus the very thing
must be returned.
 Necessary expenses-- The donee, being the
rightful owner, has to be reimbursed How much? It
depends on how much is collated. (same as Art.
1075.)
 Useful expenses—the same rule as necessary
expenses.
 Ornamental expenses-- No right to reimbursement
but has the right to remove.
 These are incidental obligations arising from
collation in the third sense.
Art. 1077. Should any question arise among the co-
heirs upon the obligation to bring to collation or as
to the things which are subject to collation, the
distribution of the estate shall not be interrupted
for this reason, provided adequate security is
given.
 Collation in all three senses.
 Questions on collation do not interrupt distribution —
as long as adequate security (caucion muciana) is
given.
 Said questions may be threshed out during the
administration proceedings.
 Only properties received by gratuitous title may be
the subject of collation.
 Final judgments by the proper court regarding
questions on collation are binding both on the person
who raised the issue, and on the heirs concerned.

Section 6.—
PARTITION AND DISTRIBUTION OF THE ESTATE.
Subsection 1.—
PARTITION
 Partition.-- Procedural, a special proceeding. This is
relevant if there are two or more heirs.
Art. 1078. Where there are two or more heirs, the
whole estate of the decedent is, before its
partition, owned in common by such heirs, subject
to the payment of debts of the deceased.
 The immediate effect of the decedent’s death:
1. Heirs are VESTED SUCCESSIONAL RIGHTS of
the successors, because—in Art. 777’s—“the
rights to the succession are transmitted from the
moment of the death of the decedent.”
2. Heirs become CO-OWNERS of the estate given
by succession. heirs over the entire mass
Art. 1079. Partition, in general, is the separation,
division and assignment of a thing held in
common among those to whom it may belong. The
thing itself may be divided, or its value.
 Kinds of Partition
1. Classified according to the DURATION of its
existence (Art 1084)
a. provisional or temporary
b. permanent
2. Classified according to the EXTENT of the
properties involved
a. partial
b. total
3. Classified according to WHO MADE the
partition:
a. JUDICIAL
b. EXTRAJUDICIAL
 made by the testator. (Art. 1080).
 made by the decedent in an act inter
vivos. (Art.1080).
 made by the heirs themselves. (Rule
74, Sec. 1, Rules of Court).
 made by a third person entrusted by
the testator or decedent. (Art. 1081,
par. 1).
 Ways to go about partition:
1.EXTRAJUDICIALLY-- Decedent dies intestate
and there are no debts.
a. All the heirs must agree among
themselves-- Upon agreement, partition is
already valid. ( EP with waiver of rights,
EP with donation, EP and sale)
b. If registered, property is included in the list
of extrajudicial partition there is a need for
publication and the partition in a public
document.
c. Go to the Register of Deeds to have titles
transferred
2.JUDICIAL—when the parties do not agree; or
when the testator or decedent dies with debts it
must go through judicial partition in:
a. Settlement proceeding; or
b. Ordinary action to terminate co-ownership
 General Procedure
1. If with a will, it must first be probated. After
probate, the heirs can choose between:
a. Extrajudicial
b. Judicial-- Judge will divide but will first give
the heirs a chance to submit their own
partition.
2. If the heirs do not agree on the partition, the
judge will appoint a commissioner.
3. Commissioner will submit a project of partition
to the judge. This project of partition, however,
is not binding on the judge.
4. The judge will issue an order of partition.
Property will be adjudicated among the heirs
accordingly.
Art. 1080. Should a person make a partition of his
estate by an act inter vivos, or by will, such
partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her
family, desires to keep any agricultural, industrial,
or manufacturing enterprise intact, may avail
himself of the right granted him in this article, by
ordering that the legitime of the other children to
whom the property is not assigned, be paid in
cash.
 The person may affect partition on his own property
by an act done during his lifetime or through a will.
 Par. 1-- Person can make partition. How?
1. By will-- making two things:
a. TESTAMENTARY DISPOSITION-- State
what value the person will get.
b. PARTITION-- State specific property the
heir will get or what comprises of the
value.
o EXAMPLE: X has no compulsory heirs. He
states in his will "I give to A 1/3 of my estate.
To comprise A's share, I would like her to get
my house in Alabang."
o The testator is allowed to do so even if he has
compulsory heirs. The partition is valid as long
as the items given do not impair the legitime.
2. Act inter vivos, e.g., private writing which is
not a will.
a. RULE UNDER THE OCC -- to do this,
there has to be a prior existing will. Why?
If no prior existing will, you are giving the
person power to make dispositions not in
the form of a will. This is seen in the use of
the word "testator" in the article.
b. RULES UNDER THE NCC, is it valid?
(ii) Yes, as long as it is strictly confined
to rules of intestate succession since
there is no will. You can only state
what properties they are to receive
and not make testamentary
dispositions.
(iii) Otherwise, he will have to make a
supporting will. This is seen in the
use of the word "person" in the
article.
o EXAMPLE: Estate of A consists of RTW
factory and cash. A has 3 compulsory
heirs X, Y and Z. A wants the factory to go
to X. A makes a partition "Factory to X. Y
and Z are to get their legitime in cash."
A: This is valid because there is no
impairment of the legitime. There is still no
requirement that it is in a will because the
estate will simply follow the rules on
intestacy. Legitimes are only values and
not specific properties, for as long as the
legitime is not impaired the testator may
partition his estate.
o In the partition it will be effective only after
death. It does not necessarily require the
formalities of a will for after all it is not the
partition that is the mode of acquiring
ownership. Neither will the formalities of a
donation be required since donation is not
the mode of acquiring ownership here
after death; since no will has been made, it
follows that the mode will be intestate
succession. Besides, the partition here is
merely the physical determination of the
part to be given to each heir.
CHAVEZ v IAC-- In the case, Manuela assigned or
distributed her estate equally among her six
(6) children. Three of those sold their share to
a sister, Concepcion, with the consent of
Manuela. Manuela then sold the entire
property to Ferrer. Was the partition by an act
inter vivos valid? Yes. Art. 1080 allows the
person to make a partition. If the partition is
by will, it must be with the formalities on wills.
If the partition is by an act inter vivos, the
partition may be oral or written, and need not
be in the form of a will, provided the partition
does not prejudice the legitime of the
compulsory heirs. The deeds of sale between
Concepcion and her sisters are valid because
they are not contracts with respect to future
inheritance but rather a contract perfected
and consummated during the lifetime of
Manuela, who signed and gave her consent.
Art. 1081. A person may, by an act inter vivos or
mortis causa, intrust the mere power to make the
partition after his death to any person who is not
one of the co-heirs.
The provisions of this and of the preceding
article shall be observed even should there be
among the co-heirs a minor or a person subject to
guardianship; but the mandatary, in such case,
shall make an inventory of the property of the
estate, after notifying the co-heirs, the creditors,
and the legatees or devisees.
 Under this article, partition may be made by:
a. the testator himself;
b. Third person who is not an heir.
 Mandatary refers to a person entrusted to make the
partition. The mandatary should not be a co-heir.
The partition by the mandatary may be either
approved or rejected by the heirs. If rejected, the
probate court can be called upon to decide the
conflict.
 This is just the power to make a physical division of
the hereditary property. The third person is not
allowed to make the disposition or distribution of
property. The disposition must have been made by
the decedent or testator himself.
Art. 1082. Every act which is intended to put an
end to indivision among co-heirs and legatees or
devisees is deemed to be a partition, although it
should purport to be a sale, an exchange, a
compromise, or any other transaction.
 Any act or any mode of distribution that ends the co-
ownership is partition. The rules on co- ownership
are applicable.
1. Physical partition, e.g., actually dividing the
estate or the land.
2. Constructive partition (Art. 1086) -- If
indivisible (e.g., a house) or if it will be greatly
impaired if partitioned. How do you partition by
constructive partition:
a. ASSIGN the property to the one who will
give the other share in cash.
b. If any objects, the property is sold at
PUBLIC AUCTION. Why will any object?
Public auction will usually bring a higher
selling price.
 How do you determine if the property is
indivisible or not?
1. By agreement between the co-owners.
2. If no such agreement it will be based on the
nature of the property.
3. If it is still unidentifiable then the courts will
decide.
Art. 1083. Every co-heir has a right to demand the
division of the estate unless the testator should
have expressly forbidden its partition, in which
case the period of indivision shall not exceed
twenty years as provided in article 494. This power
of the testator to prohibit division applies to the
legitime.
Even though forbidden by the testator, the
co-ownership terminates when one 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.
 As long as the partition is not expressly prohibited,
partition may be demanded at any time. The right
does not prescribe but an heir desiring partition must
make parties to the suit all persons interested in the
estate.
 GR: any of the co-heirs may demand partition at any
time.
EXP: Partition is forbidden by the testator in his will.
This applies even to the legitime. But it cannot
exceed twenty (20) years.
 Par. 2-- Despite the prohibition, if any ground in
Articles 1830 or 1831 (grounds for dissolution of a
partnership exists), partition will happen.
 Partition cannot be demanded in the following
cases:
1. Expressly prohibited by the testator for a period
which shall not exceed 20 years.
2. When the co heirs have agreed on indivision (for
a period not exceeding 10 years, renewable for
like periods) (Article 494, par. 2)
3. When the law prohibits partition (e.g. Art. 159,
Family Code).
4. When partition will render the property incapable
for the use for which it is intended.
Art. 1084. Voluntary heirs upon whom some
condition has been imposed cannot demand a
partition until the condition has been fulfilled; but
the other co-heirs may demand it by giving
sufficient security for the rights which the former
may have in case the condition should be
complied with, and until it is known that the
condition has not been fulfilled or can never be
complied with, the partition shall be understood to
be provisional.
 This Article distinguishes between:
1. PURE HEIRS-- can demand partition anytime,
subject to Art. 1083. If together with them,
there are conditional heirs, sufficient security
(caucion muciana) must be given by the pure
heirs to safeguard the rights of the conditional
heirs.
2. CONDITIONAL HEIRS-- cannot demand
partition till the condition is fulfilled because
their right as heir vests only when the
suspensive condition happens.
Art. 1085. In the partition of the estate, equality
shall be observed as far as possible, dividing the
property into lots, or assigning to each of the co-
heirs things of the same nature, quality and kind.
 We already saw this in Articles 1073 and 1074. It
applies to heirs similarly situated and it is subject to
agreement between the parties.
Art. 1086. Should a thing be divisible, 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 things be sold at public auction
and that strangers be allowed to bid, this must be
done.
 Constructive partition-- If one or more of the heirs
demand that the property be sold publicly, then this
prevails over the offer of one to give the others their
share in cash because he will buy it.
Art. 1087. In the partition the co-heirs shall
reimburse one another for the income and fruits
which each one of them may have received from
any property of the estate, for any useful and
necessary expenses made upon such property,
and for any damage thereto through malice or
neglect.
 Reimbursement must be made of:
3. income and fruits
4. useful and necessary expenses
5. damages thru malice or neglect
 The reimbursement can be sought in an action for
judicial partition. But even if the partition is
extrajudicial, it is submitted that an action for
reimbursement would lie by itself.
 EXAMPLE: A, B and C are heirs. A, B and C take
possession and manage a fishpond, citrus plantation
and apartment house respectively. Later, they decide
to partition the property. Assuming they have equal
shares,
o they must each account for the fruits actually
received and these fruits will be divided
equally among them.
o A received 30 as fruits B received 50 as fruits
C received 20 as fruits
o Add this and divide equally among them.
Art. 1088. Should any of the heirs sell his
hereditary rights to a stranger before the partition,
any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the
period of one month from the time they were
notified in writing of the sale by the vendor.
Art. 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the
other co-owners or of any of them, are sold to a
third person. If the price of the alienation is grossly
excessive, the redemptioner shall pay only a
reasonable one.
Should two or more co-owners desire to
exercise the right of redemption, they may only do
so in proportion to the share they may respectively
have in the thing owned in common.
Art. 1619. Legal redemption is the right to be
subrogated, upon the same terms and conditions
stipulated in the contract, in the place of one who
acquires a thing by purchase or dation in payment,
or by any other transaction whereby ownership is
transmitted by onerous title.
 The right of redemption given to the co-heir provided
the co-heir/ vendor sold his undivided share or a
portion thereof in the estate.
 Article 1620 on legal redemption and Art. 1088 are
the same. The only difference is in the application.
1. Art. 1620 applies to SPECIFIC PROPERTY
2. Art. 1088 applies to HEREDITARY MASS
 How will the right of redemption be exercised?
1. If only one will redeem, he will pay the
purchase price.
2. If more than one will redeem, they will pay
purchase price proportionally to their share in
the property.
 Note: Share must have been sold to a stranger. If
sold to a co-heir, the right of redemption does not
exist. Why? The purpose is to keep the proprietary
mass w/in the co-owners.
 For this Article to apply, the following
REQUISITES must all be present:
1. there must be two or more heirs;
2. one must sell his hereditary rights;
3. the buyer must be a stranger;
4. the sale must be before partition;
5. at least one co-heir must demand the
redemption;
6. the demand must be made within a period of
one month from the time of notification in
writing;
7. the redemptioner must reimburse the price of
the sale.
Art. 1089. The titles of acquisition or ownership of
each property shall be delivered to the co-heir to
whom said property has been adjudicated.
 Once partition is made, respective titles are given to
the respective heirs. Why? So that they can fully
owned the property adjudicated.
Art. 1090. When the title comprises two or more
pieces of land which have been assigned to two or
more co-heirs, or when it covers one piece of land
which has been divided between two or more co-
heirs, the title shall be delivered to the one having
the largest interest, and authentic copies of the
title shall be furnished to the other co-heirs at the
expense of the estate. If the interest of each co-
heir should be the same, the oldest shall have the
title.
 This is to enable everybody to get their respective
properties Usually you must have the land
resurveyed.

Subsection 2.—
Effects of Partition.
Art. 1091. A partition legally made confers upon
each heir the exclusive ownership of the property
adjudicated to him.
 Effect of partition-- Art. 1091 or to terminate co-
ownership.
Art. 1092. After the partition has been made, the
co-heirs shall be reciprocally bound to warrant the
title to, and the quality of, each property
adjudicated.
 Warranties are the same as in sales:
1. Eviction (title.)
2. Hidden defects (quality.)
 Warranty Against Eviction
o For warranty to the first to be enforceable, it is
not necessary that the heir be deprived of full
ownership. It is enough that there is a burden
or encumbrance that must be respected.
o Eviction here does not have to be by final
judgment before recourse to the warranty can
be sought, as long as no heir objects.
 EXAMPLE: Three co-heirs A, B and C divided the
land they inherited equally. But part of the land given
to A did not really belong to the predecessor so A
losses part of his share. What happens?
o B and C will be liable for the warranty for the
part lost. They will either:
(a) give cash; or
(b) give land.
Art. 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be
proportionate to the respective hereditary shares
of the co-heirs; but if any of 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.
 Reciprocal and Proportionate Warranty
1. proportionate liability
2. responsibility in the meantime for another’s
insolvency
3. right of reimbursement
 EXAMPLE: A, B, C and D are co-heirs. A lost part
(as in Art. 1092) worth 90.
o B, C and D will share equally in the 90, 30
each
o If D is insolvent, A, B and C will shoulder his
30 share, 10 each
o GR: A, B and C have a right of reimbursement
against D should his financial situation
improve.
EXP: If D gets a judicial declaration of
insolvency. This wipes out all his debts.
Art. 1094. An action to enforce the warranty among
co-heirs must be brought within ten years from the
date the right of action accrues.
 The ten (10) years is counted from the time the
portion was lost or the hidden defect was
discovered.
Art. 1095. If a credit should be assigned as
collectible, the co-heirs shall not be liable for the
subsequent insolvency of the debtor of the estate,
but only for his insolvency at the time the partition
is made.
The warranty of the solvency of the debtor
can only be enforced during the five years
following the partition.
 Co-heirs do not warrant bad debts, if so (3.) Failure of heir to interrupt an adverse
known to, and accepted by the distributee. But if possession by another in the property caused
such debts are not assigned to a co-heir, and by his own fault, he cannot go to his own co-
should be collected, in whole or in part, the heirs if he loses the property by prescription.
amount collected shall be distributed
proportionately among the heirs.

 Warranty of Debts:

1. GOOD DEBTS (collectible debts)-- warrants

that the debtor is solvent at the time of
partition (not later). This is good for 5 years —
following the date of the partition

2. BAD DEBTS-- There is no warranty for bad

debts, so an heir accepts them at his own risk

 Time of insolvency of the debtor is important:

1. If the debtor was originally solvent (before the

assignment), then later on becomes insolvent,
the co-heirs are not liable.

2. If the debtor was insolvent before the partition.

o GR: Warranty holds and co-heirs are
liable.
o EXP: If co-heir/ distributee knew of the
insolvency and still accepted the bad debt,
then the co-heirs are not liable.

Art. 1096. The obligation of warranty among co-

heirs shall cease in the following cases:
(1) When the testator himself has made the
partition, unless it appears, or it may be
reasonably presumed, that his intention was
otherwise, but the legitime shall always remain
unimpaired;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been
bad faith;
(3) When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of the
property.
Subsection 3.—
RESCISSION AND NULLITY OF PARTITION
Art. 1097. A partition may be rescinded or annulled
for the same causes as contracts.
 Rescission-- presupposes an ordinarily valid
contract, but there is an extrinsic defect, like
prejudice to creditors.
o Applicable provision-- Articles 1381 to 1382.
(Guardians, Absentees, in fraud, litigation,
others, insolvency)

 The warranty does not exist in the situations given:
(1.) GR: Warranty does not apply.
EXP: If legitimes are impaired.
(2.) GR: When the heirs agreed that there is no
warranty it is as if there is a waiver.
EXP: there is bad faith
Art. 1381. The following contracts are rescissible:
(1) Those which are entered into by guardians
whenever the wards whom they represent suffer
lesion by more than one-fourth of the value of the
things which are the object thereof;
(2) Those agreed upon in representation of
absentees, if the latter suffer the lesion stated in
the preceding number;
 (3) Those undertaken in fraud of creditors when the
latter cannot in any other manner collect the
claims due them;
(4) Those which refer to things under litigation if they
have been entered into by the defendant 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.
Art. 1382. Payments made in a state of insolvency for
obligations to whose fulfillment the debtor could not
be compelled at the time they were effected, are also
rescissible.
 Annulment-- presupposes a contract, but there is an
intrinsic defect, like vitiation. The presence of fraud,
excusable mistake, or inadvertence makes a
partition annullable. But mere disregard of the
provisions of the will, will not annul a partition, if
everybody concerned had freely given his consent,
for all would be in estoppel
o Applicable provision-- Art. 1390.
Art. 1390. The following contracts are voidable or
annullable, even though there may have been no
damage to the contracting parties:
(1) Those where one of the parties is incapable of
giving consent to a contract;
(2) Those where the consent is vitiated by mistake,
violence, intimidation, undue influence or fraud.
xxx
Art. 1098. A partition, judicial or extra-judicial, may
also be rescinded on account of lesion, when any
one of the co-heirs received things whose value is
less, by at least one-fourth, than the share to
which he is entitled, considering the value of the
things at the time they were adjudicated.
 Lesion is the same as that in Art. 1381, paragraphs
1 and 2. This applies whether the partition was
judicial or extrajudicial.
 Rescission on Account of Lesion
1. AT LEAST 1/4 lesion or damage -- rescission
2. LESS THAN 1/4-- rescission will not lie and so
the proper action is one for damages.
 EXAMPLE: A is a co-heir of B and C. A is entitled to
receive 100. In partition, he receives:
1. Property worth 80. No rescission of partition
because the lesion (20) is less than 1/4. But A
has rights under the warranties. So he can ask
for completion.
2. Property is worth 75. There is lesion (25) so A
can demand for the rescission of the partition
because the damage is 1/4.
Art. 1099. The partition made by the testator
cannot be impugned on the ground of lesion,
except when the legitime of the compulsory heirs
is thereby prejudiced, or when it appears or may
reasonably be presumed, that the intention of the
testator was otherwise.
 If partition was done by the testator—this Article
applies, whether the lesion is 1/4, more than 1/4, or
less than 1/4.
 GR: The heirs cannot demand rescission on the
ground of lesion.
EXP:
1. when the legitime of any compulsory heir was
impaired.
2. when the testator's intent was not carried out.
Art. 1100. The action for rescission on account of
lesion shall prescribe after four years from the
time the partition was made.
 Prescriptive period.-- FOUR (4) YEARS from the
time:
1. the partition was made-- in extrajudicial
partition
2. there is court approval-- In case of a judicial
partition
 If brought after more than 4 years, the action for
rescission will fail.
Art. 1101. The heir who is sued shall have the
option of indemnifying the plaintiff for the loss, or
consenting to a new partition.
Indemnity may be made by payment in
cash or by the delivery of a thing of the same kind
and quality as that awarded to the plaintiff.
If a new partition is made, it shall affect
neither those who have not been prejudiced nor
those who have not received more than their just
share.
 If there is lesion, there are two options:
1. Make a NEW PARTITION
2. INDEMNIFICATION -- give the prejudiced heir
the monetary equivalent of the damage.
 The heir sued has the option.
 EXAMPLE: A, B and C are the heirs. A is supposed
to receive 100,000. He receives only 70,000. A
sues B and C. B and C have the choice of which
option to follow—a new partition or indemnifying the
prejudiced heir.
Art. 1102. An heir who has alienated the whole or a
considerable part of the real property adjudicated
to him cannot maintain an action for rescission on
the ground of lesion, but he shall have a right to be
indemnified in cash.
 The reason for the article is that rescission requires
mutual restitution. Thus an heir loses his right to
rescind if he alienates the property.

Art. 1103. The omission of one or more objects or

securities of the inheritance shall not cause the
rescission of the partition on the ground of lesion,
but the partition shall be completed by the
distribution of the objects or securities which have
been omitted.

 This involves a preterition, not in the institution, but

in the partition of one or more objects.

 This contemplates a case where there is an

incomplete partition because it was not known that
the heirs preterited in the partition existed. The
solution is to partition the newly discovered objects.

 This does not result immediately to annulment or

rescission of previously done partition.

Art. 1104. A partition made with preterition of any

of the compulsory heirs shall not be rescinded,
unless it be proved that there was bad faith or
fraud on the part of the other persons interested;
but the latter shall be proportionately obliged to
pay to the person omitted the share which belongs
to him.

 This refers to omission of heir in partition and not to

preterition.

 GR: The heir omitted has THE RIGHT TO DEMAND

HIS SHARE and not rescission
EXP if there was:
1. Fraud
2. Bad faith

Art. 1105. A partition which includes a person

believed to be an heir, but who is not, shall be void
only with respect to such person.

 There is no omission but INTRUSION.

 This is the opposite of Art. 1104. It will not nullify the

partition only that part corresponding to non-heir is
void. It makes the recipient return what was
mistakenly given to him and it will be included
accordingly in so far as the actual inheritance is
concerned.