SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
11 AUGUST 2016
By: Mabel Acosta
SUBSECTION 5
CODICILS AND INCORPORATION BY REFERENCE
ARTICLE 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.
Under article 825 we have the definition of a codicil; it is a
supplement or addition to a will. It is also called a little will. But
even if it is called a little will, it is not really little because
sometimes a codicil may have provisions which are longer than
the original will. So based on the definition, made after the
execution of the will and annexed to be taken as a part thereof;
there is no such thing as codicil which exists before a will, a
codicil can only exist after the execution of a will. Its purpose is to
explain, add, or alter some provisions in the original will.
ARTICLE 826. In order that a codicil may be effective, it shall
be executed as in the case of a will.
In order to be valid, a codicil also has to comply with all the
formalities of wills. If it is a notarial codicil, it has to comply with
the forms of a notarial will. If it is a holographic codicil, then that
of a holographic will.
Can a notarial will be supplemented by a holographic codicil?
Yes. There is no prohibition.
What if the original will is holographic and the codicil is notarial?
Is it valid? Now take note that there is a provision in 825-
annexed to be taken as a part thereof. So here the codicil should
be taken as a part of the will. Again as I’ve said a codicil on its
own cannot exist, it has to depend in an original will. There is no
such thing as an independent codicil.
So can a holographic will be supplemented by a notarial codicil?
There is no prohibition. As long as the codicil in itself is valid as a
notarial codicil. And the will itself is also valid as a holographic
will. So they can comply with separate formalities. But they can
be taken together. A holographic will with a notarial codicil.
In case of doubt or conflict between the will and the codicil- when
there are provisions in the codicil which are conflicting with
provisions in a will which will prevail? The codicil shall prevail.
Take note that the purpose of the codicil is to add to, explain, and
alter the provisions of a will. So naturally there could be
situations wherein the codicil will have confliction provisions from
the will. In case of conflict of course you follow the codicil.
Because again it is there to explain, alter or add to. So meaning if
it is conflicting, the codicil has altered the provisions of a will. And
it is the later expression of the testator’s wishes. So again you
follow the one which is more recent.
ARTICLE 827. If a will, executed as required by this Code,
incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of
the will unless the following requisites are present:
(1) The document or paper referred to in the must be in
existence at the time of the execution of the will;
(2) The will must be clearly describe and identify the
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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; an
(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.
Article 827 is what we call incorporation by reference.
The general rule is no document can be probated unless said
document has complied with the formalities of wills.
Exception would be incorporation by reference. Because here,
even if the document which is incorporated to the will and
therefore is part of the document to be probated, this document
need not have to be in the form of a will unlike a codicil which is
again annexed to the will hence must comply with forms of the
will and also probated.
But here in article 827, you only have to comply with the
requisites for the document to be validly incorporated in the will
and to be probated along with the will.
Requisites for Valid Incorporation by Reference
1. The document or paper referred to in the must be in
existence at the time of the execution of the will;
The usual purpose for this incorporation by reference is for
convenience. To do away with the re-execution of a document
which is already in existence.
Like for example the testator, he left several properties and he
already made inventory of his properties in fact he had prepared
a 200-page inventory of his properties. And then now the testator
would like to execute a will and in his will, he would be disposing
of those properties which he already inventoried.
So does he have to rewrite in his will- the following are my
properties. So here, he does not have to rewrite in his will those
properties which are already contained in the inventory. He can
just refer in his will the inventory. So he can incorporate in his will
by reference his inventory.
Based on the inventory of my properties, I am now giving all this
properties to A B and C in equal shares. So he does not have to
rewrite everything in the will. That is why the inventory has to be
existing already at the time of the execution of the will. Otherwise
what would you incorporate? You might as well write that
inventory in your will. So it has to be already in existence before
the execution of the will.
2. The will must be clearly describe and identify the
same, stating among other things the number of
pages thereof;
So you describe the inventory. This refers to the description of
the inventory which is written in the will.
3. It must be identified by clear and satisfactory proof
as the document or paper referred to therein; and
It refers to the identification. This can be done during the probate
proceeding even extrinsic evidence can be presented to prove
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
that this is the document that is being referred to in the will as the
one to be incorporated.
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.
So signed by the testator, and the witnesses in each and every
page- that is also for the purpose of identification later. Now the
law says except in case of voluminous books of account or
inventories.
Does it mean that when the books of account are voluminous
there is no requirement for signing? The exception here is the
signing in each and every page not dispensing with the signing
altogether meaning there must still be signatures, sufficient
pages must be signed but not necessarily each and every page.
So here you see that the document does not have to comply with
the forms of wills.
What kind of wills can have incorporation by reference?
For example notarial will, can you incorporate by reference a
document into a notarial will? There is no prohibition, as long as
you comply with article 827.
How about holographic will, can you incorporate by reference
certain documents into your holographic will? It depends. If those
documents to be incorporated by reference are in the handwriting
of the testator, you cannot just incorporate by reference in your
holographic will a document which is typewritten, computerized.
Dili pwede because again the document will form part of the will,
and the document itself cannot stand independently of the
holographic will because by itself it is not in the form of a will. It
is not valid as a will as it cannot stand alone.
So if it is to be incorporated by reference to a holographic will, it
has to be entirely written by the hands of the testator. So if you
incorporate by reference to a holographic will which is
typewritten, that is not valid as it will violate Article 810.
SUBSECTION 6
REVOCATION OF WILLS AND TESTAMENTARY
DISPOSITIONS
ARTICLE 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this right
is void.
Wills are essentially revocable. So as long as the testator is alive,
he can always change his mind and revoke his will even if the will
has already been probated because the testator can probate the
will during his lifetime, even if the heirs, legatees, devises have
already accepted still the testator can revoke his will.
Revocation is the act of the mind terminating the potential
capacity of a will to operate at the death of the testator
manifested by some outward acts and signs symbolic thereof.
In revocation it requires the concurrence of the intent; the act of
the mind, and some actual and visible act or signs or some overt
act. So intent to revoke plus overt act. And, it terminates the
potential capacity of a will to operate. So revocable at any time
during his lifetime.
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Is there an exception to this rule? If the testator loses soundness
of mind during his lifetime because again revocation requires
animus revocandi. So an insane person cannot have animus
revocandi. So that’s the only exception. So as an heir that could
be your defense.
ARTICLE 829. A revocation done outside the Philippines, by
a person who does not have his domicile in this country, is
valid when it is done 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.
Laws governing revocation
First we have to note if the revocation is made in the Philippines
or outside of the Philippines
1. If in the Philippines, what law governs? Philippine law
regardless of the residence or domicile or citizenship of
the testator
2. If outside the Philippines, you only have to remember 2
things:
a. If revocation is made by a resident of the
Philippines
• He can follow the law of his domicile
which is Philippine law
• He can also follow the law of the place
of revocation
b. By a non-resident or one who is not domiciled
in the Philippines
• He can follow the law of his domicile
• He can also follow the law of the place
of execution (where the will was
executed)
ARTICLE 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.
Three recognized Modes of Revocation
1. Revocation by implication of law (or by operation of
law)
2. Revocation by subsequent document or instrument (will
or a codicil)
3. Revocation by overt act
Revocation by implication of law (or by operation of law)
Under this situation, the testator may not even have the intent to
revoke but because of an act done by him the law presumes that
he revoke his will.
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
Examples of revocation by operation of law:
§ Example 1. Article 957, that a testator devise a parcel
of land to A land in Jacinto St Davao City, then the
next year, that very same land – testator sold to X what
happens now to the devise? Well the act of selling,
alienation will be considered as an act of revocation. So
that devise legacy or inheritance is now revoke by the
operation of law.
Now what if there was really no intention on the part of
the testator to revoke, which would prevail? The
intention of the testator or the presumption of law?
Now in this kind of revocation, the presumption of law
will prevail. Unless, the testator makes manifest his
intention not to revoke the devise legacy or inheritance,
he must make an outward manifestation.
How can that happen? Under the law on legacy and
devises, if the testator sold with the right to repurchase
and he is able to repurchase the property and when he
dies na add patong land sa iyang estate- then the
legacy or devise would still be valid. So the devisee or
legatee can still claim the property because the
reservation of the right of repurchase in that deed of
sale is a manifestation that the testator did not want to
revoke the legacy or devise. But of course kung wala
jud gi repurchase ang property then wala gihapoy
mahitabo sa devise.
§ Example 2. Article 106 of the Family Code on the effect
of legal separation. The guilty spouse is disqualified to
inherit from the innocent spouse, so if for example
there is a legacy or devise given in favor of the guilty
spouse, by the decree of legal separation that devise,
inheritance or legacy is already deemed revoked by
operation of law.
§ Example 3. Article 1032 of the New Civil Code, if the
legatee, devisee or heir commits an act of
unworthiness. So here, his disqualified to inherit from
the testator even if he was already instituted in the will.
That institution shall be revoked by operation of law.
§ Example 4. Article 936 of the New Civil Code. When a
legacy or credit is collected, judicially demanded.
For example, in his will the testator said A owes me 1M
, in case A still owes me upon my death whatever
outstanding balance of the obligation of A shall be
considered as remitted. Meaning di na siya maningil.
That is legacy by remission. But if after the execution of
the will the testator brings an action for the collection of
the debt against the debtor then the legacy by
remission in the will is now deemed revoked.
§ Example 5. Article 854. If there is pretirition the
institution of heirs in the will shall be annulled. So the
heirs who are instituted in the will can no longer get
their inheritance because if there is pretirition the
institution shall be annulled and the properties in the
estate shall be distributed by legal succession. So if
you are not a legal heir then wala kay madawat
because you cannot receive by legal succession.
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Revocation by subsequent document or instrument (will or a
codicil)
There are two kinds of revocation under this provision: express
and implied.
1. Express revocation- it is expressly stated in the 2nd
will or codicil that this will revokes the previous one or
all other wills executed prior to the execution of this
document, so there is a revocatory clause in an
express revocation
2. Implied revocation- no express statement in the 2nd
will of revoking but the provisions of the 2nd will are
totally and completely inconsistent and irreconcilable
with the 1st will
For example: I hereby institute A as heir to my entire estate and
then there is a new will saying I hereby institute B as heir to my
entire estate. Can you reconcile the two wills? Which of this two
wills shall be given effect? What is the effect of the 2nd will to the
1st will?
Here we have an example of a will which is completely
incompatible with the 1st will. We cannot reconcile the provisions
of the wills. You cannot say its half-half as that would violate the
intention of the testator. He only intended to give all to one. So
here assuming all the requisites are present, the second will is
deemed to have revoked the 1st will by implication. So that is
implied revocation.
Requisites for a second will or codicil to revoke a first will
(Whether it is express revocation or implied revocation)
1. There must be testamentary capacity at the time of
revocation, the testator must be of sound mind (animus
revocandi)
2. The subsequent or second instrument must be valid
Because even if there is a revocatory clause in the
second will, or the second will is completely
incompatible with the first will but the second will is not
valid as to form then it cannot revoke the first will. It has
to be valid; it has to comply with the forms prescribed
by law. So were talking here of extrinsic validity.
3. Depending on what is the mode, if it is express
revocation-there must be a revocatory clause in the
second will or if it is implied-there must be complete
incompatibility in the first will and the second will
4. The subsequent will or instrument must be admitted
through probate
What is the distinction between the second requisite and the
fourth requisite? Can you not say that if the document is valid
then it will be admitted for probate, does it follow?
For example, the testator executed a notarial will in year 2000
giving to A all his properties and then in year 2005 the testator
executed a new will, a holographic will giving to B all his
properties. So now the first and the second will have different
provisions and they cannot be reconciled. So under the law on
revocation, we can say that the second will revoke the first will.
Let us also assume that the document was validly executed,
written, dated, and signed in the hands of the testator. So in all
respect it is really a valid holographic will. However, there was
fire and reach the house of the testator including the holographic
will. Subsequently the testator died and there was no longer any
copy of the holographic will.
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
Who is entitled to receive the estate of the testator, A or B? If
there is a witness who will testify in court: I really know that the
testator executed a will in year 2005 in fact it was 4:15 in the
afternoon in his house, he was wearing a yellow shirt and mao
jud ni ang sulod sa iyang will. Can he do that during the probate
of this second will?
As we have discussed before, in the case of Gan vs. Yap, a
copy of the holographic will must be presented in court, even a
photocopy, as long as there is a copy. Because during the
probate of a holographic will, the court has to be satisfied that the
will is written, dated, and signed in the hands of the testator. So
the court can do that by comparing the will with the other
documents executed by the testator in his lifetime. So if there is
no copy of the will that is presented in court, how can the court
make a comparison. The Supreme Court said that the will itself
is the best safeguard; its own safeguard in so far as holographic
wills are concern. So if you cannot present a copy in court the will
would not be allow probate. So here we cannot allow this
holographic will even if it was validly executed during the lifetime
of the testator.
So who will inherit the property? So were the requisites complied
with? No. The fourth requisite is absent- the subsequent will
cannot be admitted to probate. Hence, there is no revocation by
subsequent document because the 1st will was not replaced by
the holographic will which cannot be admitted to probate. All the
four requisites must be present for the subsequent document to
effectively revoke a will.
Revocation by overt act
Requisites:
1. The testator must have testamentary capacity at the
time of revocation
2. The act or acts must be any of the acts mentioned in
Article 830: burning, tearing, cancelling, or obliterating
3. The act must be a completed act
4. There must be intent to revoke (animus revocandi)
5. The revocation must be done by the testator himself or
some other person in his presence and under his
express direction.
So how can these acts effectively revoke? Does the will have to
be totally burned? As long as the act of burning is made manifest
on the will, even if only a small portion is burned as long as you
can see that there was burning. The same thing with tearing, you
don’t have to tear the will in to thousand pieces as long as it
manifests animus revocandi then that produce revocation.
Cancelling, how do you cancel? It is either you put a line or X. so
that’s another act. Obliterating is when you blacken-out or erase.
It doesn’t have to be totally blackened out as long as the act
manifest.
How about crumpling? Can it be considered as an act of
revocation? In the case of Roxas vs. Roxas, the court impliedly
allowed the act of crumpling as one of the overt acts provided
again that there is animus revocandi. So as long it is an act of
destruction with animus revocandi, not necessarily limited to the
four acts mentioned.
The act must be a completed act
What do we mean by completed act? Meaning it has passed the
subjective phase of the overt act. So difficult to prove.
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When you say completed act like you say i want to revoke this
will by tearing it to 1000 pieces then isa pa lang ka gisian
nagbago imo isip ay di nalang ko magpadayon- insofar as that
act is concern, there is still no completed overt act because in
your mind you’re planning to tear it to 1000 pieces. Theoretically
in such situation there is no revocation because the subjective
phase has not yet passed. But in reality lisod na siya, how do we
know na sa isip sa testator at that time gusto niya 1000 and then
isa lang ka gisi niundang na siya. It is difficult to prove. But if
those facts are given to you then you’ll see na wala pa
nacomplete ang act.
4. There must be intent to revoke (animus revocandi)
5. The revocation must be done by the testator himself or
some other person in his presence and under his express
direction.
In order for an overt act to produce revocation, the overt act must
concur with the intent to revoke. So even if nagisi na ang will
pero there was no intent to revoke- the will would not be revoked.
Example, the testator really wanted to revoke his will, so his will
was placed in an envelope then through it to a burning stove and
then thinking that the natural consequence of that act will be the
burning of the will itself, then he left thinking it will satisfy na
masunog jud na siya. But unknown to him, an heir who knew that
he was instituted in the will, he took the will form the stove. So
nasunog ang envelope but no portion of the will was burned. He
kept that will then the testator died, then the heir now presented
the said will for probate.
Is that will revoked? Was there intention to revoke? Yes, there
was intention to revoke. Was there an overt act of burning? Take
note that the overt act must make manifest to the will itself. What
was burned the will or the envelope? It was just the envelope so
in that case we cannot consider the will revoked by overt act of
burning. So wala because again even if gamay ra kaayo basta as
long as there is burning that manifest in the will but in that case
there is revocation by operation of law because under the law on
disqualification, incapacity to succeed the heir to prevent the
testator from revoking his will is disqualified to inherit from the
testator. That is the effect. There was no revocation by overt act
but there was revocation by operation of law in so far as that
particular heir is concern.
ARTICLE 831. Subsequent wills which do not revoke the
previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the latter wills.
This refers to a revocation by a subsequent document or
instrument.
In the case of Lagu vs. Mamuyac 49 Phil 902. This talks about
revocation. Can we imply that the will is revoked? Because you
know usually when a will is revoked by the testator, there is
actually no preserved evidence of that revocation. It is difficult.
So here the Supreme Court said the law does not require any
evidence of the revocation or the cancellation of the will to be
preserved. So because of that it becomes difficult at times to
prove the revocation or cancellation of wills.
So how can you prove that the will has been cancelled or
revoked? The Supreme Court said it can remain unproved (the
fact of revocation) or it can inferred from evidence showing that
after due search the will cannot be found. So in instances where
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
a will which cannot be found- when there is a will alleged to have
been executed by the testator and upon his death it cannot be
found anymore. The Supreme Court said that if it shown to have
been in the possession of the testator when it was last seen, the
presumption is that in the absence of other competent evidence
the same was cancelled. Because the testator was the one who
was in possession, if it cannot be found anymore – it means that
he cancelled or revoked it. That’s the presumption.
Or if for example it was only the testator who had access to this
will, and again the same cannot be found or even if it is found it is
found in a destroyed state in the possession of the testator. The
same presumption. It will not be presumed that such will was
destroyed by any other person without the knowledge or
authority of the testator. So the presumption is si testator jud ang
nag gisi ato. Also if you have several copies of the will, di ba
usually as we have discussed before even a photocopy or
carbon copy can be admitted when it comes to holographic will.
Kung notarial will, even the testimony can be admitted.
What if you have several copies of the will but one of them is
already destroyed. The court said we have to be careful in
admitting copies of the will when one copy has been destroyed.
Before admitting that will to probate-the other copies, it must be
proved that the other copy which was lost or destroyed was lost
or destroyed because it was revoked by the testator. Because in
revocation, it is not necessary that you have to burn all the
copies of the will or cancel everything. Even if you burn only one
copy or cancel only one, as long as you have intent to revoke,
that act is sufficient to revoke the will. You don’t have to destroy
all the copies.
So again if it is proved that there are four copies made during the
lifetime of the testator, and ang nabilin karon kay duha na lang ka
copy. Before those copies can be admitted, it has to be proved
that the other copies was lost or destroyed not because of
revocation by the testator. This is basically the ruling in the case
of Lagu vs. Manguyac.
ARTICLE 832. A revocation made in a subsequent will shall
take effect, even if the new will should become inoperative
by reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation.
Here, we have the doctrine of absolute revocation. Take note
that if a will has already been revoked by another will (so
remember that the revocation here is made by a subsequent
document or instrument)
For example, original will, A has been instituted as an heir of the
testator, in the 2nd will it was B who was instituted as the sole
heir. So again the 2nd will is completely incompatible with the 1st
will. So there is revocation of the 1st will. What if si B who was
instituted in the 2nd will died ahead of the testator or he renounce
his inheritance or he became disqualified to inherit from the
testator. What happens to A? Can he now claim that he will
receive because the second heir who is supposed to inherit (B)
cannot inherit anymore?
Here, the law says no. the revocation still takes effect even if the
new will should become inoperative by reason of the incapacity
of the heirs, legatees, or devisees, or by their renunciation. So
here the 2nd will is ineffective because the heirs instituted can no
longer inherit. But still that is a valid will. A will remains to be valid
even if it is inoperative or ineffective by reason of predecease
incapacity or repudiation. So it doesn’t change the fact that there
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was a revocation, a change of mind on the part of the testator. It
doesn’t diminish the extrinsic validity of the will just because the
heir instituted renounce. The 2nd will is still valid, it can still be
probated. The revocation still subsists. So that is the doctrine of
absolute revocation.
ARTICLE 833. A revocation of a will based on a false cause
or an illegal cause is null and void.
So revocation based on a false cause is null and void. So it
means that the revocation is not valid and therefore the will which
is supposed to have been revoked or the testamentary
disposition which is supposed to have been revoked still
subsists. It is as if there is no revocation.
In relation to a revocation based on a false cause we have the
case Molo vs. Molo.
MOLO vs. MOLO
G.R. No. L-2538
September 21, 1951
Here the 1st will was burned and the 2nd will was found to be not
in accordance with the formalities in the execution of will.
Supposedly when the testator made the 2nd will what was the
purpose in making the 2nd will?
So there was a 2nd will executed with the purpose of replacing
the 1st will. But the 2nd will turn out to be void because it did not
comply with all the requisites. So under the rule on revocation by
subsequent document, the 2nd will would not have revoked the 1st
will because one of the requisite is that the 2nd will must be valid.
But here the 1st will was nonetheless burned so was it revoked by
the overt act of burning?
The SC used the Doctrine of Dependent Relative Revocation.
Here, although he intended to revoke the 1st will by the overt act
of burning but such act of burning was prompted by the false
belief of the testator that the 2nd will was already valid that is
why he burned the first will. But it turned out that the second will
was not valid, so the reason for the revocation fails and the 1st
will is not validly revoked. So the cause of the burning was
caused by the false belief. So that is the meaning of the Doctrine
of Dependent Relative Revocation.
From full text: “xxx the revocation of the old to depend upon the
efficacy of a 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 and effect.”
So we have the doctrine of dependent relative revocation
which is essentially revocation based on a false cause. When he
burned the 1st will, he burned it thinking that the 2nd will was
already valid. However, it turned out that the 2nd will was not
valid, so mali diay iyang assumption. Therefor the revocation of
the 1st fails and it would remain effective. So that’s an example
of a revocation based on a false cause or the doctrine of
dependent relative revocation.
ARTICLE 834. The recognition of an illegitimate child does
not lose its legal effect, even though the will wherein it was
made should be revoked.
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
So here recognition of an illegitimate child, it is not a
testamentary disposition therefore it does not depend on the
validity of the will because you can make a recognition in a
simple instrument, you don’t need a will to effect a recognition of
an illegitimate child. So recognition takes effect immediately. It
does not have to wait for the death of the decedent. That is why
as we have discussed before in the essential elements and
characteristics of wills, a will must contain a disposition of
property.
So if a document contains only a recognition of an illegitimate
child even if denominated a s a last will and testament, it is not a
will because the recognition is not a disposition of property. And
a consequence of it not being a will, it does not have to be in the
form of a will to be valid so in the same manner if you have
several dispositions in the will you make legacy and devises, and
also a recognition of an illegitimate child and unfortunately the
will is not valid because for example there are only two witnesses
– so you cannot give effect to those dispositions but the
recognition would still be valid. Because again it is immediately
effective, it is not a testamentary disposition.
Going back to revocation, Assuming that the testator with intent
to revoke, he tore his will to 2 pieces so mao jud to iyang
intention (to tear the will into two pieces because I want to revoke
the will and he already did that. and then subsequently, the next
day nagbago iyang isip, gusto napud niya irespect tong iyang
will, and nahunahuna niya nga mahal man ang pagpanotaryo ani
may pag ako na lang ning itape. So gitape na niya iyang will,
gwapo pud pagkatape and then he kept the will to be his last will
and testament and then he died.
Strictly speaking is that will valid? Di ba he already revoked it and
then iya napung gitape.is that will valid? Knowing all the facts,
will the court allow the will to probate? That will is revoked.
Pasting a will is not a way of giving effect to the will. We have a
certain procedure on how to give effect to that will again. And
that is what we call republication. He has to publish it.
Or for example, there is a person, di ba we know that a person
should be of sound mind at the time of the execution of the will
that is the important point in time. Because even if subsequently
he become insane, as long as he is of sound mind at the time of
the execution of the will. But if when he made the will he was not
of sound mind, even if he subsequently regains his soundness of
mind or sanity- void gihapon ang will. So if the testator insane
siya nd nagbuhat siyag will during a state of insanity and then
katong naulian na siya nadiscover niya nga naa siyay gibuhat na
will and impress kayo siya sa iyang will so ana siya ako ning
ikeep kay mao nan i akong last will and testament.
Is that will valid? He was insane at the time that he made the will,
but later on, tung naayo na siya, niingon siya na akoa na ning
ipadayon. Valid bana siya? That will is not valid because just
remember the basic principle, when the testator was not of sound
mind at the time of execution and the supervening capacity will
not validate the invalid will. So unsaon man niya para ma validate
ang will? He has to republish it. We have ways in republishing a
will.
Republication and revival of wills
There is similarity between the two because in republication and
revival – we are giving effect again to an otherwise void will.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
As defined, republication is the reestablishment by the testator
of a previously revoked will or one invalid for want of proper
execution as to form or for other reasons.
Revival, it is the reestablishment to validity by operation of law of
a previously revoked will.
So republication involves the act of the testator whereas revival
involves an act of law (by operation of law).
Now what can be the subject of republication? It is either there
was a will which was revoke or there is a void will. When you say
revival, there is a will that was previously revoked.
SUBSECTION 7
REPUBLICATION AND REVIVAL OF WILLS
ARTICLE 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions contained
in a previous one which is void as to its form. (n)
Two types of republication
1. Express republication or republication by re-execution
2. Implied republication or republication by reference
What kinds of wills can be republished by reference? By re-
execution?
Express republication or republication by re-execution
This would cover those wills which are void as to form. What are
those wills? Remember the formalities prescribed for wills from
article 804 until 814 covering both holographic and notarial wills.
So if the will is invalidated because of failure to comply with the
requirements under article 404 to 814, the will is void as to form.
How about if the testator was not of legal age or he was not of
sound mind when he made the will, what is the status of the will?
The will is still void but not as to form,
When a will is void as to form, the only way to republish that will
is by express republication or re-execution. Like the testator
made a will but he only have 2 witnesses or there was no
marginal signatures. So void as to form. Pero gusto jud sa
testator na kato gyud iyang will, mao jud to ang sulod sa iyang
will. How can he give effect to that will? Again, by republication
by re-execution or express republication. So what shall the
testator do? He shall re-execute the will so tanan provisions sa
will copyhon pag-usab but this time complying with the
formalities. So that is the only way to republish a will which is
void as to form.
Implied republication or republication by reference
How is this done? What wills are covered by this republication?
This will cover wills which are void but not as to form. So when a
testator was not of sound mind when he made a will or he was
still a minor. So those are wills that are void but not as to form.
Or wills which are revoked. Valid but revoked; katong gigisi, so
dili proper na gitape lang- there has to be republication.
So how can it be done?The testator can just execute a new will,
so will lang gihapon, he has to comply with all the formalities
again as requirement of wills but he does not have to copy all the
provisions in the old will. He can just state: on January 1 2014 I
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
executed a last will and testament, I hereby declare that all the
provisions of that will which is annexed as part hereof shall be
deemed reproduce and shall have full force and effect. So he
merely referred to that old will in his new will. He need not copy
all the provisions.
So that is republication by reference or implied republication.
That is allowed again if the will to be republished is not void as to
form or was previously revoked. So what if gusto jud sa testator
na kopyahon tanan and provisions sa iyang old will even if the
old will is void as to form possible ba? There is no prohibition.
You can copy everything. That is again if the will is void but not
as to form.
But if the will is void as to form, the only way to republish it again
is only by re-execution.
ARTICLE 836. The execution of a codicil referring to a
previous will has the effect of republishing the will as
modified by the codicil.
This article discusses the effect of the execution of a codicil. So
when you execute a codicil which refers to a previous will, it has
the effect of republishing the old will. You can actually republish
by executing a new will or a codicil.
For example, in year 2000 the testator made a will and in that will
he disposed certain properties and then year 2005, he made a
codicil and in that codicil he mentioned that all the provisions of
the will made in 2000 are still valid and of full force and effect. So
what is now the consequence of that codicil? Again, it has the
effect of republishing the old will.
Another important effect, it is as if that old will was made in 2005.
Do you remember the rule on after-acquired properties? Articles
781 and 793. So article 836 is one exception of article 793. So
we discussed before under article 793 that as a general rule only
those properties existing at the time of the execution of the will
shall be included in the legacy or devise. So any other property
acquired by the testator after the execution of the will shall not be
included.
So for example the testator made a will in year 2000, he devised
to X a specific parcel of land, my land in Calinan, Davao City that
land is 10 ha. Now in year 2004, by reason of accretion it
becomes 11 ha. In 2010, the testator died. How much can the
devisee claim? 10 ha or 11 ha? Can the devisee acquire the 1 ha
accretion? As we’ve learned before, no pursuant to 793.
Exceptions of Article 793
1. First exception is in the provision itself, except when it
is expressly stated by the testator.
2. Second exception is under article 836; when a will is
republish by a codicil.
Assuming year 2000 again a devise in favor of X 10 ha parcel of
land. And then in 2004, by accretion become 11 ha. Then 2007,
the testator executed a codicil republishing the will and he
mentioned may be in the codicil he added some other heirs but
also mentioned that all the provisions of my last will and
testament executed in year 2000 shall be in full force and effect.
In 2010, the testator died.
How much can the devise X claim? What is the effect of the
execution of the codicil in 2007? It republishes the will; it is as if
the will was made in 2007. As of year 2007, 11 ha na ang land so
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
therefore at the time of the testator’s death in year 2010 – 11
hectares na ang maclaim ni devisee by way of exception of
article 793.
18 AUGUST 2016
BY: Jennifer Mortejo
ARTICLE 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. (739a)
Okay, so here we have a will, the first will. And then the first will
is expressly revoked by a second will (take note: it is EXPRESS).
And the second will is itself revoked. It does not tell us how the
second will is revoked. It can be by operation of law, overt act or
by another document, whatever. As long as the second will is
itself revoked, what is the effect of this revocation of the second
will? So here, of course the situation is that there is no third will
instituting another set of heirs because in that case, it is very
clear that the third will shall govern. But the second will, for
example, is just simply revoked. Will this give rise to the revival of
the first will?
The law says NO. The revocation of the second will does not
revive the first will, which can be revived only by another will or a
codicil. For example, you made a first will instituting A as heir.
And then in the second will, you expressly revoked the first will
because you instituted another set of heirs. So there’s express
revocation. And then with intent to revoke, the testator burned
the second will. So the effect of that is the second will is also
revoked. And then, what about the first will? It remains to be
revoked. Why? Because the express revocation in the second
will takes effect immediately. So that is the Principle of
Instanter, because there is an express revocatory clause.
However, if the testator would like to give effect to that first will, if
that is really his intention in revoking the second will, then he
should revive the first will. How? We already discussed before
the modes of republication. He can revive that by republication. It
can give effect again to that will by republication. It can be
republication by reference because again, when the will is
revoked it can republished by reference. Unless the will is void as
to form, in that case, it can only be republished by re- execution,
another will copying the provisions of the first will.
What if the first will is just impliedly revoked by a second will?
And the second will is itself revoked? So in the first will, the
testator instituted A and in the second will, without expressly
saying that the first will is revoked, the testator instituted B. So
there is now implied revocation because the provisions are
incompatible. But the second will is itself revoked, what happens
to the first will? In this case, the first will is revived. This is what
we call Revival by operation of law. The first will is revived.
We discussed before diba, Revival and Republication. We also
distinguished revival from republication. So an example again of
revival is when the first will is impliedly revoked by a second will
and the second will is itself revoked, then the first will is revived.
Another example of revival, under Article 854, if a compulsory
heir in the direct line is omitted in the will, so there is preterition,
the institution of heirs in the will shall be annulled. So the
institution meaning if the will contains only the institution of heirs,
there are no legacies or devises in that will, then the entire will
cannot be given effect. So here, the will is annulled. But if the
compulsory heir who has been preterited, the son is not
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
mentioned in the will, so he is preterited. But if that son dies
ahead of the testator, then the effect of preterition is erased. The
will is now revived. That’s another example of revival.
SUBSECTION 8
ALLOWANCE AND DISALLOWANCE OF WILLS
ARTICLE 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 may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court for
the allowance of wills 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. (n)
So Article 838 talks about probate of wills. The law says “No will
shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.” So here, the
procedure by which the will is proved and allowed in Court is
what we call a probate proceeding. If a person dies with a will,
that will is not automatically given effect. Even if in the will it says,
“I hereby give 1 million to A” and then the testator dies, A cannot
yet claim the 1 million. The will has to be probated first. So that is
the proceeding intended to determine the genuineness and due
execution of the will. It is needed because we have to be sure
that it is really the last will and testament of the testator; that it
was made in accordance with the formalities prescribed by law;
that he was not coerced in executing that will; there were no
vices of consent; he had testamentary capacity, etc. So that is
the purpose why there is a probate proceeding. Because if we
just give effect immediately, we can’t even be sure if indeed it
was the last will and testament of the testator or of the decedent.
So that is the requirement.
Based on Article 838, the first paragraph, probate is mandatory.
So even if the testator himself says that the will shall no longer
be probated, that is not given effect. It has to be probated. So
that provision in the will would be considered as void. It is against
the law because it contravenes Article 838 of the NCC requiring
probate.
MANINANG vs. CA
G.R. No. L-57848
June 19, 1982
The Supreme Court said that probate is required by public policy.
Because unless the will is probated and notice thereof given to
the whole world, the right of a person to dispose of his property
by Will may be rendered nugatory.
Again because that document was not really executed by the
testator or maybe that document did not express the true wishes
of the testator. So even if the testator had different wishes during
his lifetime, those wishes would not be followed if there is a will
allegedly executed by him and the contents thereof are not
written in accordance with his wishes. So again his right to
dispose of his property mortis cause would be rendered
nugatory.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
LASAM vs. UMENGAN
G.R. No. 168156
December 6, 2006
FACTS: There was an unlawful detainer case filed, and
ejectment case. Lasam here filed a complaint for ejectment
against Vicenta Umengan who was occupying the property but
then Umengan said the she was occupying the property not
because of tolerance or any contract of lease with Rosendo
Lasam but because her children inherited the property by
intestate succession from the deceased Pedro Cantupay. So that
was their defense. However, Lasam presented a copy of a last
will and testament allegedly executed by Isabel Cantupay, the
wife of Pedro. So in that will, the land was devised to Rosendo
Lasam, so he said he was entitled to the land. The will was not
yet probated at the time but the RTC ruled in favor of Lasam on
the basis of that last will and testament. And the court just
mentioned that since probate does not prescribe, this ruling is
without prejudice to the probate of the will. The reason given by
the RTC is that testacy is favored over intestacy. So we have a
will, in the will, Lasam was instituted or given a property and
while the defendant is relying upon legal succession or intestate
succession, so we give effect or favor testacy.
ISSUE: Was the court correct in relying upon the last will and
testament as basis in saying that Lasam had a right over the
property?
RULING: NO. The SC said that the RTC committed an error in
relying upon the will because we should note that the will was not
yet probated, so it is basic that no will shall pass either real or
personal property unless it is proved and allowed in accordance
with the Rules of Court. And an unprobated will cannot be a
basis of any right; it cannot be used as a foundation. Until
admitted to probate, it has no effect whatever and no right can be
claimed thereunder, the law being quite explicit.
Ma’am: Okay, so you cannot rely on an unprobated will. You
cannot invoke any right based on the will which has not yet
passed probate. Probate, according to the Supreme Court, is
mandatory and is a matter of public policy. So even if the MTCC
said that any way we can still probate the will, but again, the will
was not yet probated. You cannot use that will as a basis for the
decision when it has not yet passed probate. That’s the basic
principle in probate. The will cannot be given effect yet unless it
has been probated.
MERCADO vs. SANTOS
G.R. No. 45629
September 22, 1938
FACTS: Petitioner Antilano Mercado filed a petition for the
probate of the will of his deceased wife, Ines Basa. The will was
admitted to probate. Intervenor Rosario Basa de Leon filed a
complaint against Mercado for falsification/forgery of the will
probated twice and Mercado was also arrested twice. The
complaints were however dismissed at the instance of de Leon
herself.
3 years after admission to probate of the will, the same
intervenor again filed a complaint for falsification against
Mercado. Upon due investigation, the case was dismissed on the
ground that the will alleged to have been falsified has already
been probated and that there was no evidence that Mercado had
forged the signature of the testatrix but that, on the contrary,
satisfactory evidence was presented that established the
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
authenticity of said signature.
ISSUE: May the petitioner be still convicted of forgery even after
the will was duly probated?
RULING: NO. The ruling of the probate court is binding on the
complainant even if that person was not actually a party to the
probate proceeding. Probate proceedings are proceedings in rem
as distinguished from in personam. Because there is publication,
there is constructive notice to the whole world and judgment or a
decree in a probate proceeding is deemed to be binding upon the
entire world even against the State. So you cannot put up the
defense that I was not a participant in that proceeding because
that proceeding is binding on you.
So for example, you are an heir and then you were not able to
participate in the probate proceeding. And later on, there was a
decree of probate which became final and executory, you cannot
claim that you were not a party to the case and therefore, the
decree is not binding against you. Because the decree of probate
is binding against the whole world. Probate proceedings are
proceedings in rem. So the minimum requirement for this to
acquire jurisdiction is publication, which you will learn later on in
your special proceedings. So it is the act of publication which
confers jurisdiction and makes the decree of the probate court
binding against the whole world even the State.
Q: Now, what is the other issue here?
A: With regards to the forgery Ma’am, the SC held that the
probate of the will by the probate court having jurisdiction thereof
is considered as conclusive as to its due execution and validity,
and that the will is genuine and not a forgery.
The court in a probate proceeding, among others, rule that the
will is genuine; it was not a forgery; it was executed by the
testator.
Q: Did the decree of the probate court become final in this case?
And what is the effect of a final judgment?
A: Yes Ma’am. And the effect is that the judgment becomes res
judicata.
So in this case, the ruling of the probate court saying that in
effect the will is not a forgery is now res judicata with respect to
that will. So if you later on prosecute a person alleging that the
will was really forged, you would in effect be disturbing an
already final and executory judgment of the court. So that would
no longer be allowed.
The last paragraph of Article 838 says “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.” So the decree of probate court is conclusive as to the
due execution if it becomes final and executory.
The principles regarding probate are the following:
1. Probate is mandatory and is a matter of public policy.
2. Probate proceeding is a proceeding in rem.
3. Once final, the decree of the court becomes conclusive
as to the due execution of the will.
4. Estoppel is not applicable in probate proceedings
(Alsua-Betts vs CA).
For example, the testator left a will and then his heirs, despite the
will, they executed an extra-judicial settlement of the estate. Now
an extra-judicial settlement can only be allowed if the decedent
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
died intestate. If it has a will, again as we said, the probate of the
will is mandatory and the property should be distributed in
accordance with the will. What if the heirs voluntarily executed
the extra-judicial settlement? And A, for example, is one of the
participants and then he received his share under that extra-
judicial settlement. Later on, he changed his mind and he asked
for probate of the will. Can he be estopped by participating in the
earlier extra-judicial settlement? NO, because again, the principle
of estoppel is not applicable in probate proceedings.
5. The right to ask for probate does not prescribe (In Re:
Estate of Pilapil).
You will not find anything in the Rules of Court, in the NCC as to
the prescriptive period for the filing of a petition for probate. So
you can always file anytime for the probate.
Two kinds of probate proceedings:
1. Ante-mortem probate – one which is filed by the
testator himself during his lifetime.
2. Post-mortem probate – the usual, it is filed after the
death of the testator.
DELA ROSA vs. ARCHANGEL
The SC said that an action for the annulment of a will is not
allowed. There’s no such thing as a petition for annulment or an
action for the annulment of the will. If you do not agree with the
will, what you should do is to file an opposition during the probate
proceeding.
Now, let’s go to who can participate in probate proceedings; who
are allowed or who have personality to intervene in probate
proceedings. We have the case of Leviste vs. CA.
LEVISTE vs. CA
G.R. No. L-29184
January 30, 1989
FACTS: Leviste entered into entered into a written agreement
with the private respondent Rosa del Rosario to appear as her
counsel in a petition for probate of the holographic will of the late
Maxima C. Reselva. It was agreed that petitioner's contigent fee
would be 35% of the property that Rosa may receive upon the
probate of the will. Later, Leviste received a letter from Del
Rosario, informing him that she was terminating his services as
her counsel due to "conflicting interest.” Leviste now files a
"Motion to Intervene to Protect His Rights to Fees for
Professional Services." Leviste argues that by virtue of his
contract of services with Del Rosario, he is a creditor of the latter,
and that under Article 1052 of the Civil Code which provides:
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.
He has a right to accept for his client Del Rosario to the extent of
35% thereof the devise in her favor (which she in effect
repudiated) to protect his contingent attorney's fees.
ISSUE: Whether or not Atty. Leviste can intervene in the probate
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
proceeding
RULING: NO, he cannot intervene.
Article 1052 of the Civil Code does not apply to this case. That
legal provision protects the creditor of a repudiating heir. Leviste
is not a creditor of Rosa del Rosario. The payment of his fees is
contingent and dependent upon the successful probate of the
holographic will. Since the petition for probate was dismissed by
the lower court, the contingency did not occur. Attorney Leviste is
not entitled to his fee.
Furthermore, Article 1052 presupposes that the obligor is an heir.
Rosa del Rosario is not a legal heir of the late Maxima C.
Reselva. Upon the dismissal of her petition for probate of the
decedent's will, she lost her right to inherit any part of the latter's
estate. There is nothing for the Leviste to accept in her name.
Leviste was not a party to the probate proceeding in the lower
court. He had no direct interest in the probate of the will. His only
interest in the estate is an indirect interest as former counsel for
a prospective heir. And as ruled by the SC in another case, one
who is only indirectly interested in a will may not interfere in its
probate.
Ma’am: So here, Leviste was not considered as an interested
party. He had no personality to participate in the probate
proceeding. Article 1052 actually says that if an heir repudiates
his inheritance to the prejudice of his creditors, his creditors may
petition the court to accept the inheritance in behalf of the heir.
So that was the basis of Atty. Leviste. But again, for that to be
invoked you have to be the creditor and the debtor is an heir.
So first, Atty. Leviste was not a creditor because the contingency
did not arise. The contingency is the will should be allowed. But
then it did not arise. Second, the client was not an heir, she was
a devisee. And the basis for her to claim the device is upon the
will. And since the will was disallowed, she cannot inherit
anything.
MALOLES vs. PHILIPS
G.R. No. 133359
January 31, 2000
FACTS: Dr. Arturo De Los Santos filed a petition for probate of
his will. He declared that he has no compulsory heirs and that he
is naming as sole devisee and legatee the Arturo de Santos
Foundation, Inc. (ASF). The named executrix is Pacita De Los
Reyes Phillips. The court allowed the probate of the will. Ten
days after, Arturo died. Pacita, as executrix, filed a motion for the
issuance of letters of testamentary. Octavio Maloles II however
filed a motion for intervention claiming that as a next of kin (him
being the full blooded nephew of Arturo) he should be appointed
as the administrator of the estate and that he is an heir.
ISSUE: Whether or not Maloles can intervene
RULING: NO, he cannot intervene. In order for a person to be
allowed to intervene in a proceeding, he must have an interest in
the estate or in the will or in the property to be affected by it. He
must be an interested party or one who would be benefited by
the estate such as an heir or one who has a acclaim against the
estate like a creditor, and whose interest is material and direct.
In this case, Maloles is not an heir or legatee under the will of the
decedent. Neither is he a compulsory heir of the decedent. As
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
the only and nearest collateral relative of the decedent, he can
inherit only in case of intestacy. He can only inherit if the will is
annulled. His interest is therefore not direct or immediate.
Q: Is the testator not obliged to give something to his nephew?
A: No, he is not obliged to give anything to his nephew, who is
not a compulsory heir. It is a fundamental rule of testamentary
succession that one who has no compulsory or forced heirs may
dispose of his entire estate by will.
So here, Octavio Maloles was not a compulsory heir. Therefore,
he can be left out in the will. The testator here left a will, so
Maloles is not a compulsory heir; he has no legitime to be
prejudiced. Therefore, he has no personality to participate in the
probate proceeding. He has no right to be protected in the first
place.
Q: How about his claim that he was a creditor of the estate?
A: The SC held that it was belatedly claimed as it was raised for
the first time only in his reply to the opposition to his motion to
intervene and is not supported by evidence.
Take note that the testator may name a person to administer his
properties and his estate in the will. That person is called the
executor. So kung naa siyay gi-appoint, mao na jud to siya ang
mag-administer sa properties. Pero kung wala or nag-refuse or
na-disqualify ang katong gi-appoint, then an administrator can be
appointed. So here, it would matter if you’re a creditor. But
because the testator here named a person to be an executor in
the will, then that person named by the testator should be
appointed unless disqualified. So the wishes of the testator as to
who would be the executor should be respected.
BUTIONG vs. SURIGAO CONSOLIDATED MINING
July 31,1968
Here, Christian Harris was the testator. He left a last will and
testament and in his will, he gave all his properties consisting of
shares of stock and interest in the Mindanao Mother Lode Mining
Company Inc. and Surigao Consolidated Mining Co., Inc. to his
adopted son, Pedro Butiong. Christian Harris later died and
Butiong filed a petition for the probate of the last will and
testament of Christian Harris. In that proceeding, Surigao Mining
opposed the probate on the ground of forgery.
ISSUE: Can the Surigao Mining oppose the probate? Does it
have personality to intervene in the proceeding?
RULING: The SC said NO. The Company had no personality to
intervene because it was not instituted as an heir. Surigao Mining
does not claim to have such interest in the succession to
Christian Harris. It was not an heir, legatee, devisee, or a
creditor. So no interest at all. The fact that the shares of stocks
were in the Company is irrelevant. Because we know in
Corporation Law that the shareholders or stockholders are
different from the Corporation. Unless again, Surigao Mining
could prove that it was instituted as an heir, legatee, devisee or a
creditor, it could not participate as an intervenor or an oppositor
in the probate proceeding.
Now what is the reason in all these cases why strangers are not
allowed to participate? That was discussed in the case of
Leviste vs CA. The reason for the rule is not that thereby the
court may be prevented from learning facts which would justify or
necessitate a denial of probate, but rather that the courts and the
litigants should not be molested by the intervention in the
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
proceedings of persons with no interest in the estate which would
entitle them to be heard with relation thereto.
This is also very important, what matter are discussed as during
probate proceeding?
General Rule: Only those matters pertaining to the extrinsic
validity of the will.
We differentiated before extrinsic validity from intrinsic validity.
When we say extrinsic, it refers to the form and solemnities
observed in the execution of the will, the appearance of the will.
Intrinsic is with respect to the substance, the legality of the
provisions of the will. In several cases, the SC said only those
matters pertaining to the extrinsic validity of the will. So what
are these matters?
There are three:
1. Question of Identity – whether the instrument offered
for probate is the last will and testament of the testator.
2. Question of Due Execution – whether the will was
executed according to the formalities required by law
(Art.804-814).
3. Question of Testamentary Capacity – whether the
testator had testamentary capacity at the time of the
execution of the will; whether or not he was of sound
mind; and whether or not he was already 18 years old
when he made the will.
We have the case of Dorotheo vs. CA,
DOROTHEO vs. CA
FACTS: Aniceta Reyes died in 1969 without her estate being
settled. Thereafter, her husband Alejandro also died. In 1977,
Lourdes Dorotheo filed a special proceeding for the probate of
Alejandro’s last will and testament. The children of the spouses
filed their opposition. The will was admitted to probate and the
children did not appeal the said order. Later, they filed a “Motion
to Declare the Will Intrinsically Void”. The RTC ruled that Lourdes
being not the wife of Alejandro the will is intrinsically void; the
oppositors are the only heir entitled to the estate. Lourdes filed a
Motion for Consideration arguing that she is entitled to some
compensation since she took care of Alejandro prior to his death
although they were not legally married to each other.
ISSUE: May a last will and testament admitted to probate but
declared intrinsically void in an order that has become final and
executory still be given effect?
RULING: NO. A final and executor decision or order can no
longer be disturbed or reopened no matter how erroneous it may
be.
The Supreme Court ruled that the will of Alejandro was
extrinsically valid but the intrinsic provisions thereof are void.
Alejandro gave all the property to the concubine. Such is invalid
because one cannot dispose what he does not own. In this case,
the whole property is the conjugal property of Alejandro and
Aniceta. Such has become final and executory. The only
instance where a party interested in probate proceeding may
have a final liquidation set aside is when he is left out by reason
of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence with circumstances do
not concur herein. executory as it was not appealed, it specifically provided in its
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Read these cases (mentioned by Atty.Yangyang):
• Nuguid vs. Nuguid
• Pastor Jr. vs. CA
• Lim vs. CA
• Coronado vs. CA
So what is now the consequence if we say that a probate court
only has jurisdiction to determine questions pertaining to the
extrinsic validity of the will? The probate court cannot rule on the
following:
1. Whether or not a certain legacy or devise is valid
(because it pertains to the intrinsic validity of the will).
2. Whether or not the disinheritance of an heir is valid.
3. The qualifications of certain persons to inherit from the
testator.
4. Questions pertaining to impairment of the legitime.
5. Filiation
6. Title to property
7. Preterition
Two phases of probate proceedings:
1. Probate proper – this is when the Court determines
questions pertaining to the extrinsic validity of the will. If
all those questions are answered or resolved in the
affirmative then the probate court would now allow the
will and it will proceed to the next phase.
2. Distribution Phase – distribution in accordance with
the provisions of the will. Because if the will has been
allowed probate, then we can say that the will is valid.
And therefore the properties of the testator will have to
be distributed in accordance to the will. This is when
questions pertaining to the intrinsic validity of the will
shall be entertained.
CAMAYA vs. PATULANDONG
FACTS: Rufina executed a notarized will where she devised a
parcel of land to her grandson Anselmo. Later, she executed a
codicil which stated that her 4 children and Anselmo would inherit
the above parcel of land. Anselmo filed an action for partition
against the Patulandongs. It was granted, subject to the result of
the probate of the codicil. Anselmo then sold the land to the
Camayas. The probate court then issued an order wherein the
title issued to the Camayas were declared void and it voided the
sale as well. The Camayas contended that the probate court has
no power to declare null and void the sale and their title.
ISSUE: W/N the probate court was correct in declaring the sale
and the titles to the land null and void?
RULING: NO, the probate court does not have the power to
annul the title to lands subject of a testate proceeding pending
before it. The probate court exceeded its jurisdiction when it
further declared the deed of sale and the titles of the Camayas
null and void, it having had the effect of depriving them
possession and ownership of the property.
A probate court cannot adjudicate or determine title to properties
claimed to be a part of the estate and which are equally claimed
to belong to outside parties. All that said court could do as
regards such properties is to determine whether they should or
should not be included in the inventory.
Though the judgment in the partition case had become final and
11
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
dispositive portion that the decision was without prejudice to the
probate of the codicil. The rights of the prevailing parties in said
case were subject to the outcome of the probate of the codicil.
Q: So that issue whether or not the probate court has jurisdiction
to annul certificate of titles, what kind of issues are involved in
that case?
A: It involves question as to titles or ownership.
As a general rule, the probate court cannot resolve that. So here
the probate court obviously cannot annul a certificate of title
because it is also basic in your Land Titles and Deeds that a title
is not subject to a collateral attack.
Q: When you say collateral attack, what do you mean by that?
A: When it is not a subject of a separate petition Ma’am.
Q: So how do you attack title?
A: File a separate case to cancel or annul the title, Ma’am.
Okay, so you have to file an action directly, precisely, for the
cancellation or annulment of the title. There should be a direct
proceeding instituted for the purpose. It cannot be made as a
side issue in another proceeding, like in a probate proceeding,
the main issue is the extrinsic validity of the will, the form. So you
cannot raise the title as another issue in the probate proceeding.
Let us go the Exceptions. Because again as we said, generally,
only those matters pertaining to the extrinsic validity of the will
are discussed during probate proceeding.
MORALES vs. OLONDRIZ ET. AL.
February 3, 2016
This case involves a petition for the probate of a will. During
probate proper, the question of preterition of one of the heirs, a
legitimate son named Francisco Olondriz, was raised. In that
proceeding, it was questioned that probate proceeding
determines only the extrinsic validity of the will. When you say
preterition, whether or not an heir has been preterited, that
pertains to the intrinsic validity of the will. But the RTC
entertained the matter and it ruled that indeed Francisco was
preterited. And the court ordered the proceeding to be converted
into an intestate proceeding.
What is ‘preterition’? We have not yet reached that portion in
Article 854. But when there is preterition, the institution of heirs in
the will shall be annulled and the estate shall be distributed by
legal succession. For example, the testator instituted A (son), B
(son), and C (friend) as his sole heirs in the will. But D
(illegitimate child), wala niya gi-mention at all in the will. And
assuming he was preterited. What is the effect of that? The
institution of A, B, and C shall be annulled. What will happen?
The estate shall be distributed by legal succession. But in
preterition also, if there are legacies and devises, which are not
inofficious, then these legacies and devises shall be given effect.
What do we mean by ‘not inofficious’? Meaning wala sila nag-
exceed sa free portion. Wala sila naka-prejudice sa legitime sa
compulsory heirs. In my first example, that was purely institution
of heirs. If there is a legacy or devise in the will, even if there is
preterition, a will can still be given effect. You still have to
proceed with determining the extrinsic validity of the will. Why?
Because you cannot give effect to a legacy or devise without a
will. A legacy or devise would only be effective if there is a valid
will.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
But here, the SC considered the fact that it was not disputed by
the proponents of the will that Francisco was preterited, they
were given a chance to prove that Francisco was given a
donation (kay kung naa toy donation during the lifetime of the
testator to the omitted heir, wala toy preterition) but they were not
able to prove it; the will also did not institute any devisee or
legatee. So here, the preterition of the compulsory heir in the
direct line resulted in total intestacy. Because of that, it would be
a waste of time, effort and resources of the court and of the
parties if the court would still proceed to determine the extrinsic
validity of the will when in the end, the will cannot still be given
effect because of preterition. So the SC said for practical
considerations, we must meet the issue on preterition head-on
(during probate pa lang). So here it was proper for the RTC to
resolve the issue of preterition. Because again if there’s
preterition, total intestacy will result.
The SC said in this case that the decedent’s will, no matter how
valid may appear extrinsically, is null and void because of
preterition. The conduct of separate proceedings to determine
the intrinsic validity of its testamentary provisions would be
superfluous. The RTC was thus correct in ordering the case to
proceed intestate.
ARANAS vs. MERCADO
So here the issue involved is ownership, whether or not certain
properties are owned by the estate.
Q: What is the rule with respect to the question of ownership?
A: The probate court has no jurisdiction over the issue on
ownership.
Q: But what can it do, by way of exception?
A: All that the said court could do as regards said properties is to
determine whether or not they should be included in the
inventory of properties to be administered by the administrator.
Q: Now once the court says this property is owned by the estate
to be included in the inventory or is to be excluded from the
inventory, what is the nature of the determination?
A: It is merely provisional, Ma’am.
Q: What do you mean by ‘merely provisional’? What is the
consequence of that?
A: It is only temporary for the time being but it may still be revised
in the future.
Q: For example, the court said “This land in Jacinto, Davao City
should be included in the inventory of the estate despite the
objection of X, who’s claiming to be the rightful owner of the
land.” Can X file a separate action for reconveyance or
annulment of title?
A: Yes Ma’am.
Okay. Because again, the ruling of the probate court is merely
provisional. It does not constitute res judicata with respect to the
ownership of the property. So that same ownership can be raised
in another proceeding, in a separate action instituted precisely
only for that purpose. So that’s the nature of the determination
made by the probate court with respect to matters pertaining to
the extrinsic validity of the will.
12
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
ROMERO vs. CA
April 18, 2012
There was a certain property which was questioned to be a
separate property of the deceased spouse or part of the conjugal
partnership. So that was the issue, whether or not it was a
separate property of the decedent or their conjugal property.
What’s the relevance of that? Because if that property is
separate property, then the entire property shall be distributed
among his heirs. But if it is part of the conjugal or absolute
community property, tunga-on pana siya. Ang katunga ihatag sa
asawa, ang katunga maoy tungaan sa heirs (apil gihapon ang
asawa because in her/his capacity as heir).
The lower court here said that “We will not entertain that issue
and you should thresh out that issue in a separate case, not in
this probate proceeding. Because again the determination of the
probate court over properties which may form part of the estate is
not final or ultimate in nature.” So here, the jurisdiction of the
RTC sitting as a probate court relates only to matters having to
do with the settlement of the estate of the deceased person or
the appointment of the executors but does not extend to the
determination of questions of ownership that arise during the
proceeding. That was the position taken by the RTC.
However, the SC said that the RTC is not correct. When the
matter in controversy is the question of ownership of certain
properties involved, whether they belong to the conjugal
partnership or to the husband exclusively, this is a matter
properly within the jurisdiction of the probate court, which
necessarily has to liquidate the conjugal partnership in order to
determine the estate of the decent which has to be distributed
among his heirs or all parties to the proceeding.
So the SC even said that it is only the probate court who can
competently rule on whether the properties are conjugal or form
part of the estate. Because again, it is only the probate court that
can liquidate the conjugal partnership and distribute the same to
the heirs after the debts of the estate had been paid.
In your Special Proceedings, you will learn that if one of the
spouses dies, the liquidation of the conjugal partnership or the
absolute community shall be done in the same proceeding,
whether testate or intestate, for the settlement of the estate for
the deceased spouse. You cannot file a separate action to
determine whether or not it is conjugal, absolute or separate. It
has to be only in the probate proceeding.
01 SEPTEMBER 2016
By: Katherina Gumboc
Review:
The probate court can include the issue of ownership of the
property to determine whether the property will be included or
excluded from the inventory. Any determination made by the
probate court as to the ownership of the property is merely
provisional. It does not constitute res judicata and the same issue
of ownership can be raised and threshed out in another
proceeding instituted precisely for that purpose.
With respect to probate also, again, as we said, during probate
proper, questions pertaining to the intrinsic validity of the will
shall not be discussed but only those pertaining to the extrinsic
validity of the will. This includes question as to the identity,
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
question as to the due execution and question as to the
testamentary capacity. But again, there are exceptions as we
have discussed.
Q: When will be the questions pertaining to the validity of
the will be discussed?
There are two phases of probate proceedings. The questions
pertaining to the validity of the will will be discussed during the
second phase of the proceeding.
1. The first phase is the probate proper where the probate
court will determine whether or not the will is valid. Once
the court determines that the will is valid then proceed to
the second phase.
2. The second phase is the distribution proceeding. Here,
the court will distribute the property in accordance with
the probated will. This will be the time when questions
pertaining to filiation, qualification of the heirs,
preterition, disinheritance, ownership will be discussed.
But not during probate proper.
Q: What will happen if the probate court will rule that the will
is not valid?
When the probate court will rule that the will is not valid then the
testate proceeding will not commence because there is no more
will since the will is not allowed probate. Therefore, the properties
will be distributed by legal or intestate succession. That’s the
rule.
Two kinds of probate
1. Ante mortem probate – happens during the lifetime of
the testator. It is the testator himself who files a petition
for the probate of his will. In here, usually, the
procedures are different because mas dali lang siya.
2. Post mortem probate – happens after the death of the
testator. The executor, or the heirs, or any interested
party will execute this. When you say interested party,
he is the one who will be directly affected or benefitted
by the results of the proceeding. So not just anybody or
a stranger but he must be an interested party.
For example, nag ante mortem probate si testator and the will
was approved or allowed, as we have discussed already, he can
still revoke his will even if it is already probated. Kasagaran pud,
mas daghan ang post mortem probate. Seldom lang ang mga
testator na naga probate sa ilang will although I have
encountered some because siguro diba, hasol pud baya na siya.
It will not be presumed against the will if the testator did not file a
petition for the probate of his will during his lifetime. You cannot
say na kung tinood gyud na nag execute si testator og will dapat
iya nang gi-probate during his lifetime. No you cannot presume
that against the will because again, there are two kinds of
probate proceedings.
If a person dies with a will and his will covers several properties,
like he has properties abroad and he has properties in the
Philippines, if the will is already probated abroad with respect to
the properties abroad, is it automatic that the said will is
recognized in the Philippines?
Reprobate proceeding
Halimbawa isa lang ka will covering his several properties all
over the world, then gi probate na niya ang will abroad, admitted
to probate in the US, pag abot diri sa Philippines kay naa man
13
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
pud properties covered by that will in the Philippines, our courts
do not automatically recognize that will even if already probate
abroad. What happens is that, that will which was probated
abroad will be presented for probate again here in the
Philippines. We call that reprobate proceeding.
If you still remember the case of Suntay, katong will which was
already probated in China, for that will to be recognized in the
Philippines, they have to introduce evidence, like for example
that the court in China was a probate court, that the will complied
with the formalities of wills in China, evidence as to the rules of
procedure with respect to the probate in China, so these are the
matters which will be proved during reprobate proceedings. In
relation to that, what happened in the case of Palaganas?
IN RE: IN THE MATTER OF THE WILL OF PALAGANAS
G.R. No. 169144
January 26, 2011
FACTS: Manuel and Benjamin argued that wills executed by
foreigners abroad must first be probated and allowed in the
country of its execution before it can be probated here to ensure
prior compliance with the legal formalities of the country of its
execution.
ISSUE: W/N wills executed by foreigners abroad must first be
probated and allowed in the country of its execution before it can
be probated in the Philippines.
RULING: NO
Our laws do not prohibit the probate of wills executed by
foreigners abroad although such will has not been probated and
allowed in the countries of their execution. A foreign will can be
given legal effects in our jurisdiction pursuant to Article 816 of the
New Civil Code.
Our rules require merely that the petition for the allowance of a
will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees,
and devisees of the testator or decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters are prayed;
and
(e) If the will has not been delivered to the court, the name
of the person having custody of it.
Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the
probate court is sitting, or if he is an inhabitant of a foreign
country, the estate he left in such province. The rules do not
require proof that the foreign will has already been allowed and
probated in the country of its execution.
Petitioners Manuel and Benjamin obviously have in mind the
procedure for the reprobate of will before admitting it here. But,
reprobate or re-authentication of a will already probated and
allowed in a foreign country is different from that probate where
the will is presented for the first time before a competent court.
Reprobate is specifically governed by Rule 77 of the Rules of
Court. Contrary to Manuel’s stance, since this rule applies only to
reprobate of a will, it cannot be made to apply to the present
case. In reprobate, the local court acknowledges as binding the
findings of the foreign probate court provided its jurisdiction over
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
the matter can be established.
Besides, petitioners Manuel’s and Benjamin’s stand is fraught
with impractically. If the instituted heirs do not have the means to
go abroad for the probate of the will, it is as good as depriving
them outright of their inheritance, since our law requires that no
will shall pass either real or personal property unless the will has
been proved and allowed by the proper court.
So in this case, there was no prior probate of the will in the US.
They simply filed a petition for probate in the Philippines based
on Article 816 of the New Civil Code. The SC ruled that there is
no requirement that the will should be probated first abroad. The
requirements are found under Rule 77 of the Rules of Court,
which is the rule governing reprobate proceedings.
The procedure observed in reprobate proceeding is only required
if the will is already probated abroad and is to be probated again
in the Philippines. But there is no prohibition for a direct probate
of that will in the Philippines because we have Article 816 which
we can rely on. So when you probate the will for the first time in
the Philippines, it will not be governed by Rule 77 of the Rules of
Court but it will be governed instead by Rule 76 which is the
usual proceeding for the probate of wills. You follow that and not
Rule 77. Again, the will can be probated directly in the
Philippines without the need of proving that it was probated
abroad first.
ARTICLE 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. (n)
So these are the grounds for disallowance of wills.
1. If the formalities required by law have not been
complied with
This refers to the formalities or the due execution of the will.
These are provided under Articles 804 to 814. Whether it is a
holographic will or a notarial will, we have to look at those
provisions on whether or not the will has complied with the
formalities.
2. If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its
execution
This goes to the testamentary capacity whether the testator was
of sound mind at the time of the execution of the will.
3. If it was executed through force or under duress, or
the influence of fear, or threats
14
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
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
These grounds go into the voluntariness of the testator. If the will
was made with the presence of the vices of consent like force,
duress, threats, undue and improper pressure and influence,
fraud, mistake, what will be the effect of these vices of consent
on the will?
Take note in obligations and contracts, if these vices of consent
are present during the execution of the contract, the status of the
contract is voidable. But in the case of wills, the effect of the
presence of vices of consent during the execution of the will is
that it renders the will void. There is no such thing as voidable
will. The will is either valid or void. Again, Article 839 provides for
the disallowance of wills.
For example if you have been disinherited in the will, you may
oppose the probate of the will on the ground that it is not valid
because the disinheritance can only be given effect if there is a
valid will. Or for example, the testator died without compulsory
heirs, kay diba if a person died without compulsory heirs, he can
give to anybody he wants. So if you are a legal heir, and there is
a will giving the property to the maid of the testator, it is valid as
long as the will is extrinsically valid. If you contest that, there is a
chance na you will be able to inherit if the will is invalidated. The
presence of these grounds will be sufficient to invalidate a will or
to deny the probate of the will.
These grounds are actually exclusive. This means that you
cannot add some more grounds to disallow the will. Perhaps,
there could be one exception. If the will has been revoked, so
you have a will and then it is presented for probate, you can
allege that the will should be disallowed for probate because it
was already revoked by operation of law, by overt act such as gi
scotch tape nalang ang will. But you have to prove that the
tearing was with intent to revoke because dili man tanang will
with a scotch tape kay revoked na ang will. Diba, the intent plus
the overt act must concur. Therefore, revocation can also be a
ground to deny the probate of a will.
The vices of consent in wills have the same definition with the
vices of consent under the Civil Code when you discussed
contracts. If these vices are present during the execution of the
will, then these vices will be grounds for the disallowance of the
will.
ORTEGA vs. BELMONTE
G.R. No. 157451
December 16, 2005
FACTS: Placido was an old man who was 80 years old at the
time. He lived before in the US but he came home to stay and
live with his sister in the Philippines. Two years after his arrival
from the US, at the age of 80, he married Josefina who was 28
years old at the time. He made a notarial will and in his will he
gave all his properties to his wife. Wala niya gitagaan iyang
sister. Placido died and the will was presented for probate. It was
opposed by the sister on the grounds that the will was not
executed and attested as required by law, the testator was
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
mentally incapable to make a will, he was in advanced age of 80
at the time, there was force or under duress, or the influence of
fear or there was undue and improper pressure and influence on
the part of the testator.
In so far as the allegation that there was undue and improper
pressure and influence on the part of the testator, according to
the oppositor (sister), it was highly dubious for a woman at a
young age to almost immediately plunged into marriage with a
man who was thrice her age and who happened to be a Fil-
American pensionado thus casting doubt as to the intention of
the respondent as signatory of the will. According to the
oppositor, it defies human reason, logic and common experience
for an old man with a severe psychological condition to really
have signed the last will and testament. Under this
circumstances, the sister alleged that there was fraud.
ISSUE: Was the fact that the wife was very young and the
husband executed a will giving all his properties to her an
evidence of undue and improper pressure and influence and
fraud on the part of the testator?
RULING: NO
Fraud is a trick, secret, device, false statement or pretense by
which the subject is instituted. It may be of such character that
the testator is misled or deceived as to the nature of the contents
of the document which he executes, or it may related to some
extrinsic fact in consequence of the deception regarding which
the testator is led to make a certain will, which but for the fraud,
he would not have made. The party who alleges fraud or undue
and improper pressure and influence has the burden of proof that
indeed the fraud existed at the time of the execution of the will.
So here, according to the SC, no evidence was presented. The
allegations of the sister here were not sufficient to prove fraud
because aside from her allegations, that because of the age of
the testator and the wife, there is already fraud. Gi insulto jud
niya iyang igsuon.
ISSUE: How about the fact that the sister was omitted in favor of
the young wife, is it an evidence of fraud, undue and improper
pressure and influence? NO
The SC said that it is a settled doctrine that the omission of some
relatives does not affect the due execution of the will. That the
testator was made into signing the will does not sufficiently
establish fraud by the fact that he instituted his wife who is more
than 50 years his junior as the sole beneficiary, and disregarded
his sister and his family who has taken care of the testator in his
twilight years.
So, the omission of some relatives is not an indication of fraud
because as long as they are not compulsory heirs, you are not
obliged to institute them as heirs. If you only have the brothers
and sisters, you can give all your properties to some other
person. You can entirely deprive them because again, they are
not compulsory heirs.
As to the allegation that there was a defect in the will because
the dates did not coincide with the will. The SC said that it is not
enough to invalidate the will because the dates are not important
in notarial wills because the law does not require that notarial will
be executed and acknowledged on the same occasion.
So here, the SC did not consider the mere allegations and the
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WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
circumstance presented as sufficient to indeed prove that there
was fraud or undue and improper pressure and influence on the
part of the testator. There might have been influence but it is not
the kind of influence that will invalidate a will.
REVOCATION DISALLOWANCE
In both cases, we presupposed that there is a will but by reason
of revocation or disallowance, the will is declared null and void
and cannot be given effect.
It is the voluntary act of the It is by means of a judicial
testator. It is his act of decree. It is the court that
terminating the capacity of his issues an order denying the
will to operate at the time of his probate.
death.
It can be done by the testator It is only based on the grounds
with or without a cause. mentioned under article 839.
May be partial or total; not As a general rule, it is total.
necessarily complete Except when fraud or undue
especially when the revocation influence affects only certain
affects only certain provisions parts of the will
of the will.
Done during the lifetime of the Usually invoked after the
testator testator‘s death.
SECTION 2
INSTITUTION OF HEIR
ARTICLE 840. Institution of heir is an act by virtue of which a
testator designates in his will the person or persons who are
to succeed him in his property and transmissible rights and
obligations. (n)
Article 840 and the succeeding articles talk of the institution of
heirs. The testator, as distinguished from legatees and devisees,
designates the persons who will receive his estate, the entirety of
it, a portion, an aliquot share, an ideal share or a spiritual share.
These are the provisions relating to the institution of heirs.
Principles with respect to the institution of heirs
1. An instituted heir is different from a legatee or a devisee.
When you say legatee it refers to person who will
receive a legacy or a gift of specific personal property
while a devisee refers to the person who will receive a
device or a gift of real or immovable property. An
institute heir is a person who will receive his estate, the
entirety of it, a portion, an aliquot share, an ideal share
or a spiritual share.
2. The instituted heir continues the juridical personality of
the testator. That is why the instituted heir succeeds to
the property, rights and obligations of the testator and he
can represent the testator is suits for example pertaining
to the estate of the testator.
Who can be instituted as heirs of the testator
1. Natural persons
2. Juridical persons like corporations, partnerships, as
long as there is no prohibition in the charter of their
creation from inheriting
Q: In the case of natural persons, does the law require a
certain age before he can inherit? Diba you have discussed
before in your Persons and Family Relations juridical
capacity as distinguished from the capacity to act.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Juridical capacity refers to the capacity to be the subject of
certain legal relations while capacity to act means the capacity to
act with legal effects. A person has the capacity to act when he
attains legal age, which is 18 years old while a person has
juridical capacity when he was born or he attains civil personality.
Hence, for a natural person to be able to inherit, to be instated as
an heir, he does not require to have the capacity to act. So even
if you are a one-year old, you can be instituted as an heir just like
in donation, you don’t have to be of legal age to be a donee.
Take note that when it involves generosity or liberality, you don’t
need to be of legal age to be a recipient, either as an heir or a
donee.
Q: How about kung naa pa sa tiyan? Buntis pa ang mama
and imong lolo excited na kaayo and tagaan na niya iyang
apo og mansion or kotse para gamitin niya pagka one year
old niya. Pwede na ba?
Remember the conditions laid by down by Articles 40 and 41 of
the New Civil Code.
ARTICLE 40. Birth determines personality; but the
conceived child shall be considered born for all purposes
that are favorable to it, provided it be born later with the
conditions specified in the following article. (29a)
ARTICLE 41. For civil purposes, the fetus is considered born
if it is alive at the time it is completely delivered from the
mother's womb. However, if the fetus had an intra-uterine
life of less than seven months, it is not deemed born if it
dies within twenty-four hours after its complete delivery
from the maternal womb. (30a)
If the baby is still in the womb or fetus palang siya, if the fetus
had an intra-uterine life of at least 7 months, the fetus already
attains civil personality as long as it is born alive. By born alive, it
means na pagguwas palang sa tiyan buhi siya. Even if he died 5
minutes after naa na siya civil personality. So halimbawa
gitagaan na siya property by will or by donation, naka inherit na
siya so iyaha na to. But of course, because he died 5 minutes
after he was born, the properties will pass on to his own heirs.
But if the fetus had an intra-uterine life of less than 7 months, he
must at least live within 24 hours from delivery before he can
attain civil personality. So if the fetus was born less than 7
months, like for example 6 months palang, and then after 10
hours namatay, he did not acquire civil personality and
consequently he did not inherit and walay nahitabo na
succession. Pero if he live for at least 24 hours, maka inherit na
siya because he already attained civil personality but because he
died after, his properties will go to his heirs who are his parents
or grandparents.
This is the rule when we talk of natural persons as instituted
heirs. We will discuss this again when we go to the other
concepts of instituted heirs and why would these matter because
it will affect the manner of succession and it has legal effects or
consequences.
When we say instituted heirs, we are referring to the free portion
of the estate because insofar as the legitime is concerned, there
is no need to institute the compulsory heirs. The law assures the
compulsory heirs of their legitimes. So basically, the institution of
heirs will refer to the free portion and the institution cannot affect
the legitime. If the institution exceeds the free portion then it shall
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WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
be reduced because the law does not allow that the legitimes of
the compulsory heirs be impaired.
The general rule in the institution of heirs is that it is presumed to
be equal unless the testator provides otherwise.
Requisites to a valid institution
1. The will must be extrinsically valid
This is because the institution of heirs refers to testamentary
succession. Before the institution of the heirs will be effective, the
institution must be embodied in a valid will. So the institution to
be valid, the will must be extrinsically valid.
2. The institution must also be intrinsically valid
Even if the will is valid as to form but for example there is
preterition in the will which is a matter of intrinsic validity of the
will, the institution of the heirs cannot be given effect because
Article 854 is very clear that if there is preterition the institution of
the heirs shall be annulled.
The heir must also be certain or ascertainable because even if
you instated an heir like “I institute some of my friends as my
heir, ½ of my estate will go to them.” Kinsa mana sila friends? So
here, it is not clear, it is not intrinsically valid because there is
ambiguity which cannot be cured. Hence, the institution cannot
be given effect.
3. The institution must be effective
This means that the instituted heirs should not predecease the
testator, should not repudiate the inheritance or should not be
disqualified to inherit from the testator.
Assuming the testator instituted A, B and C as heirs to his entire
estate. Assuming the will is valid as to form, there is no
preterition, walay compulsory heirs si testator so intrinsically valid
to siya, but A died ahead of the testator, B repudiated the
institution and C was convicted of attempt against the life of the
testator so he was disqualified. So here, still, the institution
cannot be given effect because it was rendered ineffective by
incapacity and repudiation thus the instituted heirs were
disqualified. It is not because the will is invalid but it is because
the instituted heirs were disqualified to inherit.
05 SEPTEMBER 2016
By: Karmela Tongo
ARTICLE 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. (764)
Just remember the principle under article 841. Even if the will has
no institution of heirs it is still a valid will.
What are the example of wills where there is no institution of
heirs? Why do you need to execute a will if you don’t institute
heirs. Example is a will only providing for a disinheritance.
Disinheritance remember is not an institution. It is separate and
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
distinct from institution because when we say institution, we
name the persons to whom you are giving certain portions of the
estate or the entire estate. It is still a valid will. Being a valid will
then the disinheritance there can be given effect.
And it says there that “even if the institution should not comprise
the entire estate.” So the testator disposed of only half of his
estate. What happens to the other half? It shall go by legal
succession. We now have a case of mixed succession—partly by
will, partly by operation of law or even if the person instituted
becomes incapacitated to succeed or he repudiates the
inheritance or even if he predeceased the testator.
Actually when there is incapacity, predeceased or repudiation of
heirs in a will, we have already discussed before the will
becomes ineffective, the will is ineffective but still the will is valid.
What happens now if the instituted heirs either predeceased or
repudiate or become incapacitated. What is the use of that will?
Why is there a need to probate that will in the first place? Again
because there are certain effects like for example ‘This will
revoke a previous will’ so even if the heirs in the second will can
no longer receive but still, this will operates to revoke the
previous will. The heirs mentioned in the first will can no longer
inherit because of the revocation of the first will by the second
will. And if the heirs in the second will also become
incapacitated, repudiate or predeceased then they cannot also
receive. So what will happen is that there would be intestacy.
The first will cannot be given effect because of the revocation
made by the second will although the institution of the second will
can no longer be given effect because it is ineffective. But still
again the second will is valid.
ARTICLE 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.
One who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions of
this Code with regard to the legitime of said heirs. (763a)
This is the Freedom of disposition. When a person has no
compulsory heirs then there are no legitimes to be respected. He
has the liberty to dispose of his entire estate.
There is a limitation however, the law says ‘in favor of any person
having capacity to succeed.’ So, if the recipient, the heir, devisee
or legatee is also not capacitated to succeed, for example the
testator and the legatee is guilty of adultery or concubinage, the
testator cannot give to that particular person and that person
instituted also cannot receive from the testator, so, the heir here
is disqualified. He is incapacitated to succeed. That is the
limitation. Although the testator may give, dispose of his will but
subject to the limitation that the heir is capacitated to succeed
from the testator.
The second paragraph, the legitime. So after the testator
provides for the legitime of his compulsory heirs, the balance is
what we call the free portion. For example the testator left a
children and a spouse. The children under the law on legitimes
are entitled to ½ of the net hereditary estate. The surviving
spouse, if there are more than one legitimate children the
suriving spouse is entitled to the same share as one legitimate
child. If there is only one legitimate child, the surviving spouse is
entitled to ¼.
So one half of the estate goes to the legitimate children, that is
the legitime. The other half is the free portion. How about the
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
spouse? As I have said the spouse has also a share. It can be ¼
or if there are more than one legitimate children then it would be
equivalent to the share of one legitimate child. So where do we
get the share of the surviving spouse? It shall be taken from the
free portion. If the estate is 10 million, 5 million will go to the
legitimate children. If there are four, then 5 million divided four,
the children will get 1.25 million each. The spouse is also entitled
to 1.25 million that shall be taken from the free portion.
So after deducting the share of the spouse technically what is left
is the real free portion which is also called the free disposal.
Subject to the rule on legitimes, as to the free portion the testator
has freedom of disposition also, subject to the qualification that
the heir instituted is also capacitated to inherit from the testator.
Halimbawa igsuon lang nabilin sa testator. Igsuon lang tanan,
wala siyay asawa, walay parents ug children. He has no
compulsory heirs. Can he dispose his estate in favour of his dog?
For the education, grooming and welfare of his dog? Can he
exclude his brothers and sisters? Technically yes because the
brothers and sisters are not compulsory heirs. They can be
excluded. Although again, there is a question as to the capacity
of the dog to succeed.
ARTICLE 843. The testator shall designate the heir by his
name and surname, and where 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. (772)
This article tells us how to designate the heirs. Ideally ofcourse
by the full name, the first name and the surname. If there are two
persons having the same name, for example Juan Dela Cruz,
tulo ka buok iyang friends na Juan Dela Cruz then he can
indicate ‘akong bestfriend’ or ‘akong schoolmate na si Juan Dela
Cruz’ he can indicate the circumstance.
Halimbawa walay name na gibutang so, ‘sa akong pag
umangkon na bayot’, ayaw mog kasuko ha, example lang ni siya.
So kinsa man na siya? Wala may pangalan diba? So kung isa
lang kabuok ang bayot okay lang. as long as ma designate na
siya lang gyud. so ilhan kaayo na siya ang gina mean sa testator
kay wala siyay lain pag umangkon na bayot.
“In such a manner that there can be no doubt as to who has
been instituted” pero kung tanan bayot then kana xxx didto na ta
sa rules on ambiguity xxx if you cannot determine at all using all
the rules in interpretation then in that case the institution
becomes ineffective. So if you cannot identify the heirs then that
portion shall go by way of intestate succession.
ARTICLE 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with
certainty the person instituted.
If among persons having the same names and surnames,
there is a similarity of circumstances in such a way that,
even with the use of the other proof, the person instituted
cannot be identified, none of them shall be an heir. (773a)
Error in the name, surname or circumstances. For example my
adopted child A and A is not legally adopted. Can A inherit? Yes,
because that is just a description, the word adopted. Even if turns
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
out to be erroneous as long you can identify that it is A who has
been instituted, then the instiution shall be given effect unless it
is very clear that such ’ adopted’ word is intended to be a
condition. For example ‘If A is really legally adopted then I would
give him bla bla of the free portion.’
Another example is ‘to my pretty niece’ niya dili diay siya pretty,
still the institution can be given effect. If again as I said, there is
no way of knowing who has been instituted, the person cannot
be identified because there is no name designated and the
description is also erroneous, then it that case the designation
cannot be given effect and the portion given shall go by way of
intestacy.
ARTICLE 845. Every disposition in favor of an unknown
person shall be void, unless by some event or circumstance
his identity becomes certain. However, a disposition in favor
of a definite class or group of persons shall be valid. (750a)
Disposition in favor of an unknown person. Meaning, this person
is not known at all, he cannot be identified, he is for all intents
and purposes, a stranger. Someone who is not known to the
executor, administrator, estate, relatives, you cannot really
identify here.
What happens? The general rule is that it shall be void unless by
some event or a circumstance the identity becomes certain.
There is a case wherein the description is that ‘I hereby give
(example) ¼ of my estate to my nearest relative who would enter
the pre-school.’ So wala ta kabalo kung kinsa na siya. Although
in that case another issue cropped up because the question is
when shall this person enter the preschool? Is it during the
lifetime of the testator when he made the will? Can it be after the
death of the testator? In that case there is no name, wala ta
kabalo kung kinsa na siya. But if he can identify, then that
institution shall be given effect. But ofcourse there is a
qualification. If a relative enters the pre-school, that relative
should have been atleast conceived upon the death of the
testator. Again, one who is not yet born or conceived at the time
of the death of the testator cannot receive because transmission
happens upon death. How can he receive something if he does
not yet exist, atleast man lang, conceived. Then you comply with
the provisions of article 40 and 41.
So kung wala gyuy ing ana na heir or naa untay mag enter sa
preschool pero 100 years pa after sa death sa testator the
institution becomes ineffective. It cannot be given effect.
ARTICLE 846. Heirs instituted without designation of shares
shall inherit in equal parts. (765)
Remember this. This is the principle of equality in the
institution.
For example the testator instituted A ,B, C and D as his heirs.
The estate is worth 20 million. And it is silent as to what are their
respective shares. The presumption is they are instituted equally.
So let us divide 20 million by four. Each shall get 5 million.
What if A and B here are the legitimate children of the testator.
So he left a will and then he said ‘I hereby institute A B C and D
as my sole heirs.’ A and B here are his legitimate children. How
will he divide the estate? Do you remember what we discussed
before? When we say institution we are actually referring to the
free portion because we don’t need to institute heirs to their
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
legitimes. So the institution of A B C and D refers to the free
portion.
How about the legitime? The legitime shall be given to the
compulsory heirs. There are two children. Assuming there are no
other compulsory heirs, so we will divide 20 million by two, so 10
million is the legitime and the other 10 million is the free portion.
There are two legitimate children so 10 million divided by two. A
and B will get 5 million each.
Now we got to the free portion which is 10 million. So this is
where the institution would refer to. So 10 million divided by 4
would be 2.5 million. So A gets additional 2.5 and also B. C gets
2.5 million and also D.
This is how we apply the principle of equality.
ARTICLE 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. (769a)
This is the principle of Individuality. For example we have A, B
and the children of C. The children of C are X and Y. So ‘I hereby
institute A, B and the children of C as my heirs.’ The estate is 20
million. So how will we divide the estate? The law says ‘those
collectively designated shall be considered as individually
instituted.’ So X and Y shall receive the same shares as A and B.
They shall be treated individually like A and B. We divide here
the estate by four.
NABLE VS UNSON
G.R. No. L-892
March 10, 1914
The testator here had 6 sisters and 5 nieces. However 2 of her
sisters already dead.
Q. You said here that the lower court divided here by six
according to the number of the sisters. Is that correct?
A. No. Applying 847 those who are collectively designated shall
be considered as individually instituted.In the absence of the
intention to the contrary the estate must be divided to the sisters
and the nieces equally. So it will be divided to 9 because there
are 4 sisters and 5 nieces pursuant to article 847.
Again, if there are compulsory heirs how will you apply this
article? This article should refer only to the free portion. The
legitime of the compulsory heirs shall be respected first.
ARTICLE 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. (770a)
The testator instituted his brothers and sisters in his will. But
some are half blood, half sister or brother and some are full. So
how do we divide? Like A, B and C and D are brothers. A and B
are half blood while C and D are full blood. So how will he divide
the estate? Article 846 states equal shares, equally. Why?
Because this is testamentary succession. There is a will, We are
reading the express wishes of the testator. Had the testator
wanted to give more, to the full blooded brothers and sisters than
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
the half-blood brothers and sisters, he could have specified in his
will because he already made a will. In the absence of any
specification then it is presumed that it will be divided equally.
Remember this article because in legal succession, for example
the testator left only brothers and sisters, some are full blood and
half blood, the law distributes the estate two is to one. The full
blood brothers and sisters will get more, twice as the half blood
and sisters. Tunga lang ang sa halfblood because the law
presumes na mas stronger ang affection ni decedent sa iyahang
full blood brothers and sisters kay sa sa half blood brothers and
sisters.
But again this is testamentary succession, the testator had every
opportunity to specify if he wanted to give more to the full blood
siblings but he did not, so meaning equal iyang affection, so
equal shares.
ARTICLE 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. (771)
2015 TSN: This is the principle of simultaneity
A and the children of A. So how do we give effect to this
institution? Will you wait for A to die before his children can
receive their shares? The law says simultaneously because
when you say successively one after the other, so si A sa
paghuman mga anak. But the law says simultaneously so they
will receive at the same time.
If the institution is worded this way: “A and children of A” so the
children of A are X and Y, they will inherit at the same time. In
what share? As to the sharing we can also apply article 847.
Those who are collectively designated shall be considered as
individually instituted. A and the children of A. The children of A,
X and Y shall be considered as individually instituted. So they will
receive at the same time, simultaneously and equally, in equal
shares. That is the distribution.
Unless ofcourse if there is a contrary intention. If the testator
provides otherwise in his will na una sa si A before si X and Y na
children of A then we will follow the will. But in the absence of
that intention appearing on the will itself, then it is simultaneous
and equal.
ARTICLE 850. The statement of a false cause for the
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause. (767a)
“False cause for the institution of heirs”. What is the rule? In
Article 850 it says ‘not written’. So it is considered as not written
unless it appears from the will that the testator would not have
made such institution had he known the falsity of the cause.
For example “Because A saved my life when I almost drowned
sometime in 2000, I will give A 1 million.’ But unknown to the
testator dili diay si A ang nagsave sa iya, does it follow that A can
no longer receive 1 million because the institution of A is based
on a false cause? The law says it is considered as not written. A
can still receive. Because in succession, the underlying
consideration is the liberality or the generosity of the testator. It is
not the cause. A can still receive. Unless it appears from the will
that the testator would not have made such institution if he had
known the falsity of such cause.
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016

Example: I would have wanted to give my house and lot in
Jacinto St. Davao to A, but because it was B saved me from
drowning and I feel indebted to B I will be giving the house and
lot to B. Again it turns out na dili diay si B ang nagsave kay
testator. So can B receive? Does it appear from the will that the
testator would not have given the house to B having known na
dili diay si B ang nagsave sa iyaha. Kay he said na gusto unta
nako si A hatagan pero gitabangan man ko ni B etc.. It is clear na
the testator would not have given the house to B had he known
the falsity of the cause. Here, this falls under the exception. B
cannot receive the house and lot.
How about A, kay siya man kaya atong gusto hatagan gyud? Will
he receive? Still no. Because A was not instituted.So this would
go to the legal succession unless the testator provided for
substitution, accretion, etc,, unless this concepts will apply. So
this is in statement of a false cause in the institution.
Estate: P1.2 million
A (1/4 share) P1.2M/4 = 300k + 100k = 400k
B (1/4 share) P1.2M/4 = 300k + 100k = 400k
C (1/4 share) P1.2M/4 = 300k + 100k = 400k
= P900k = P1.2M
A total of 900,000. So naa pay kulang na 300,000. The law says
that the shares of each heir shall be increased proportionately.
Ang increase diri walay problema because the heirs are instituted
in equal shares. Meaning, sa remainder equal shares lang
gihapon sila.
Estate: P1.2 million
(Amount over total, multiply by remaining)

ARTICLE 851. If the testator has instituted only one heir, and A (1/6 share) P1.2M/6 = 200k / P1.150M x 50k = 8,695.65
the institution is limited to an aliquot part of the inheritance, B (1/8 share) P1.2M/8 = 150k / P1.150M x 50k = 6,521.73
legal succession takes place with respect to the remainder C (2/3 share) P1.2M(2/3) = 800k / P1.150M x 50k = 34,782.60
of the estate. = P1.150M = P50k
The same rule applies if the testator has instituted
several heirs, each being limited to an aliquot part, and all A (1/6 share) 200k + 8695.65 = P208, 695.00
the parts do not cover the whole inheritance. (n) B (1/8 share) 150k + 6521.73 = P156, 521.73
C (2/3 share) 800k + 34,782.60 = P834, 782.60
So the first paragraph refers to only one instituted heir and the
= P1.2 million
institution does not cover the entire estate. For example “I hereby
institute A to ¼ of my estate.” So that is the only share that goes
ARTICLE 853. If each of the instituted heirs has been given
to A. The rest, the free portion will go by legal succession.
an aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as
The same thing applies when there are several heirs but the
the case may be, each part shall be reduced proportionally.
institution does not cover the entire estate. For example “To A
goes 1/3 and B will also have 1/3” so naa pay nabilin na 1/3
Baliktad sa 852. In both cases there is an intention to give the
which is not disposed of. That balance shall go by intestate
entire estate to the instituted heirs. In 852 the institution,
succession and A and B will each receive the share given to
nakulang, it does not cover the entire estate although there is an
them and that is 1/3 each.
intention to cover everything.
ARTICLE 852. If it was the intention of the testator that the
In 853 the institution exceeds the total value of the estate. The
instituted heirs should become sole heirs to the whole
shares shall also be reduced proportionally.
estate, or the whole free portion, as the case may be, and
each of them has been instituted to an aliquot part of the
Estate: 1.2 million
inheritance and their aliquot parts together do not cover the
whole inheritance, or the whole free portion, each part shall
(Amount over total, multiply by excess)
be increased proportionally. (n)
A (1/4 share) P1.2M/4 = 300k / P1.250M x 50k = 12k
So it is different in Article 852. There is an institution and still the
B (1/8 share) P1.2M/8 = 150k / P1. 250M x 50k = 6k
institution does not cover the entire estate. But the intention is
C (2/3 share) P1.2M(2/3) = 800k / P1. 250M x 50k = 32k
that the instituted heir should become the sole heir to the entire
estate. = P1.250 million

Sa 851 kato lang gyud ang gihatag ang ¼. So ang remainder sa A (1/4 share) 300k - 12k = P288,000
estate would be instituted by legal succession. Sa 852 even B (1/8 share) 150k - 6k = P144,000
though kung I-total nimo ang share given to the instituted heirs C (2/3 share) 800k - 32k = P768,000
wala niya gihurot ang entire estate, but the intention is the entire = P1.2 million
estate would be given to them. So you distribute the remainder to
the heirs, the shares of each heirs shall be increased That is how you reduce under Article 853.
proportionally.
ARTICLE 854. The preterition or omission of one, some, or
Example: all of the compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after the death
A¼,B¼,C¼ of the testator, shall annul the institution of heir; but the
devises and legacies shall be valid insofar as they are not
The testator diposed a total of ¾ but there is an intention to give inofficious.
everything to A, B and C. If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO 20
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
to the right of representation. (814a)
Article 854 is a very important article. It talks of preterition. Under
Article 854 when you say preterition there is omission. A
compulsory heir is omitted in the direct line.
Requisites of preterition:
1. Omission
What kind of omission is being referred to under Article 854?
Because some would contend that, if the omission is deliberate
then it is equivalent to disinheritance and therefore the rule on
disinheritance will apply. But if it is inadvertent, then it is
preterition, so the rules on preterition will apply.
But it has already been settled that whether the omission is
deliberate or inadvertent it is preterition, as long as the heir is not
expressly excluded in the will. There is no mention that “I hereby
disinherit A.” Wala’y mention na gi exclude, he is just omitted.
So it doesn’t matter if it is voluntary or involuntary, whether
deliberate or inadvertent.
2. Omission is total and complete
When you say total or complete, first, the heir is not given
anything in the will, even if his name is mentioned. For example
“I have 5 children A, B, C D, and E. E is the handsome of them
all and this is how I will distribute … to A, B , C and D” wala na
apil si E pero naa iyang pangalan. It is still preterition because he
is not given anything, Not even a single centavo.
If the testator say “I hereby give 1 peso to E” and the estate is 1
million, is E preterited? No. He is not forgotten. Wala siya
gikalimtan diba? He is given 1 peso. So he is not preterited. But
definitely 1 peso is way below his legitime. So what will he do?
He is entitled to a completion of his legitime. But he is not
preterited. Just remember that there is not preterition because he
is not forgotten, he is given.
If an heir is given a legatee, an inheritance or a devise there is no
preterition however small that legacy, devise or share might be
but he is given.
And, even if he is not mentioned in the will either as an heir,
legatee or devisee but he receives something from the testator
during the lifetime of the testator which can be considered as
advance legitime then there is no preterition. For example a
testator donated a property to the son and the son was not
mentioned in the will, he is not preterited because that donation
is considered as an advance to the legitime.
Take note! It Is not only donation that can be considered as
advance to his legitime. If you remember when we discussed
before the concept of mixed succession, there is a presumptive
legitime, that is also considered as an advance to the legitime.
When we go to collation there are certain amounts given which
can be considered as an advance to the legitiime. For example
the child had debts and the parents paid for those debts. The
payment of those debts by the parents can be considered as
advance to the legitime of the child.
Or the child was imprisoned and to secure the child’s provisional
liberty the parents paid for his bail, so that payment can also be
considered as advance to the legitime.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Nidagan siyag elections and the parents contributed election
expenditures, that is considered as advance to the legitime.
So those are the examples of payments or amounts which can
be considered as advance as to legitimes. If these amounts were
given by the testator to the omitted heir, the omitted heir is not
actually preterited because there is something which can be
considered as an advance to his legitime.
3. The will must dispose of the entire estate.
There is nothing which can be disposed of by way of intestacy.
Even if the heir has not been given a legacy, devise or
inheritance to the will, even if there is no donation intervivos to
him, there is nothing which can be considered as advance to his
legitime but the testator disposed only ¾ of his estate in his will,
there is no preterition. Because the ¼ can still be distributed by
intestacy. So wala siya totally gikalimtan kay naa pay nabilin
which he can totally participate by intestate succession. You
might say na gamay ra man ng ¼ , yes, he is entitled to the
completion of his legitime but he is not preterited. There Is a
difference between saying completion of the legitime and
preterition.
So these are the situations when we can consider that the heir
was really omitted and therefore pretertited.
4. The omission must be of compulsory heirs in the
direct line
Take note that the compulsory heirs we have children,
descendants, parents or ascendants, surviving spouse and
illegitimate children. The law says in the direct line, so definitely a
spouse cannot be preterited because he is not a descendant or
ascendant of the testator. So it is only the children, descendants,
parents, ascendants. So it is who descend from the testator and
whom the testator descended. So the Supreme Court said that
the spouse cannot be preterited.
5. The preterited heir should not predeceased the
testator or even If he predeceased he should not
leave a representative.
Again A, B, C and D are the children of the testator. E is
preterited in the will. Wala siya namention, walay nahatag sa
iyaha and the entire estate is disposed of, he is definitely
preterited. But he died ahead of the testator, so by this
predeceased he never became an heir. Because an heir is
supposed to survive the testator, so the effects of preterition are
now erased and the will is valid, it is revived. That is an example
of revival.
But even if E predeceased the testator if E himself left his own
heir, a representative, for example naa pud diay anak si E like X
who is the apo of the testator then there is still a preterition.
Again omitted heir should not predeceased the testator. Or even
if he predeceased but he should not leave a representative
otherwise there is still a preterition.
Effects of preterition
Situation 1:
Again A, B, C D and E are the children of the testator. But E is
preterited. Let us say the estate is 5 million. So in the will of the
testator he said “I hereby give all my properties, 5 million, to A, B,
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
C and D only” wala niya gi mention na ‘I hereby exclude E’ basta
wala niya gi apil si E.
Let us say E is preterited. So what is the effect of this
preterition? The law says the institution of heirs is annulled. The
institution of A B C D is annulled and the estate shall be
distributed by intestacy or legal succession.
In legal succession we will just divide the estate to 5 equal
shares so A B C D and E will get 1 million.
Situation 2:
A, B, C and E are the children. D is the bestfriend of the testator.
So kining uban mga anak, legitimate children. So the testator
said in his will “I hereby A B C and D as my sole and only heirs in
my entire estate of 5 million.” So wala’y mention again about E.
Again there is preterition. So how do we distribute the estate?
Because there is preterition the institution of heirs shall be
annulled. Nawala ang institution ni A B C and D. So again we
distribute by legal succession. How much and to whom? Who are
the legal heirs? A, B, C and E. The friend is not a legal heir. So,
legal heirs, upat. So you just divide the 5 million by 4. So that
would be 1.25 each. Walay apil si D, the institution of D is
annulled and he cannot be xx because he is not a legal heir.
Situation 3:
For example the testator said “I hereby institute A, B, and C as
my sole heir and I am giving 100,000 to my bestfriend D.” So
wala niya gimention si E. So E is preterited. There is preterition.
the institution of heirs shall be annulled.
How do we distribute the estate? The law says ‘the institution of
the heirs shall be annulled but the legacies and devises which
are not inofficious shall be respected.’
What is an inofficious legacy or devise? How do we know if it is
inofficious or not?
JLT AGRO vs. BALANSAG
G.R. No. 141882
March 11 2005
Q. Is there a preterition in this case
A. No. In the first place there can be no preterition without a will.
He did not execute any will at all. What he made was merely a
partition inter vivos. So it is deemed premature if not irrelevant to
speak of preterition in the absence of a will.
Second reason is that, assuming that for the sake of argument
there was a will, he did not dispose of all his properties. Without
disposing of all his properties there are still other properties from
where the omitted or the forgotten heirs can still participate.
There Is no preterition.
You say inofficious when it exceeds the free portion. So you
determine the free portion to know whether or not the legacy is
inofficious. 5 million divided 2 kay mga anak man tanan. So 2.5
ang legitime and 2.5 ang free portion. So inofficious ba ang
100,000? No. Ma cover siya sa free portion. Respect the legacy.
Then kinsa man ang hatagan nato aside from B? Ofcourse the
legal heirs kay na annul naman ang institution sa heirs sa will. It
is either you compute first their legitimes, 2.5 million divided by 4
is 625,000 plus balance sa free portion and that Is 2.4 million
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
divided by 4. Or you can just 4.9 million divided by 4 mao to siya
ang I-distribute equally among A B C and E plus the 100,000.
Now assuming ang legacy given to B is 3 million. Again the free
portion is 2.5 and the legitime is 2.5. What about the legacy of 3
million to D? It is inofficious. So when you say inofficious do you
mean we won’t give that to D? We still give to D but we reduce.
We can only give to D as much as can be covered in the free
portion. So we can give to D 2.5 million as his legacy. The
balance of 2.5 also will be distributed equally among A, B, C and
E. That is how we distribute.
Assuming, A, B, C, E are children, D is the bestfriend of the
testator. The estate is 5 million. In his will it is stated “I hereby
institute as my sole heirs A B and C as well as D my bestfriend
to my entire estate of 5 million. But I am giving 10 pesos out of
my 5 million estate to my son E.” Is E preterited? No. He is not
preterited. Is there preterition? Wala kay he is not preterited gani.
So how do we distribute?
Determine the legitime first. There is no preterition. There is no
annulment of the institution of heirs. So the legitime is 2.5, the
free portion is 2.5. Give the legitime of the compulsory heirs. 2.5
divided by 4 is 625,000. Mao na dapat ilahang legitimes.
Kung muingon siyag legacy it should not be charged to the
legitime. So naa gihapon siyay 625000. So kung muingon siyag
charge to legitime bawason natog dyis pisos ang …. So naa na
siya 10, sabagay wala pa man nahatag so tagaan nato siyag 625
000 lang, wala na ning additional 10. Basta 625,000.
Kung gihatagan na niya in advance si E ug 10, bawasan nato
siya ug 10. So mao ni ilang distribution. If he says legacy then
additional 10 pesos for legacy.
And the remaining na 2.5 free portion? Asa nato ihatag? Again
ilahang legitime they have 625,000 each. Free portion, because
he said na tagaan natog 10 pesos si E, tagaan natog 10 pesos si
E. The balance as he said I-institute daw niya si A B C ug E as
sole heirs so silang upat magbahin sa 2.5 less ten pesos.
Take note makadawat gihapon si D as an instituted heir because
there is no preterition. Even if he was only given 10 pesos as his
legacy that is not preterition because he is not forgotten. He will
just be entitled to receive his legitime. Kung dili legacy, I charge
sa legitime puwede dugangan lang pud. That is completion of the
legitime. So that is the difference.
Here you see the importance of knowing the distinction between
an heir and a legatee or devisee. Because if you are an instituted
heir and there is preterition you will not receive anything if you
are not a legal heir.
But even if you are a legatee or devisee even if there is
preterition, you can still receive your legacy or devise. If your
legacy or devise is inofficous it will just be reduced so as to
complete the legitimes of the other compulsory heirs.
MORALES vs. OLONDRIZ
G.R. No. 198994
February 3, 2016
Again as we have discussed in probate, we only discuss the
extrinsic validity of the will. We do not discuss the intrinsic validity
of the will. When we say preterition that is a matter which refers
to the intrinsic validity of the will. But here by way of exception,
22
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WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
the probate court already ruled on the issue of preterition even
during the probate proper.
Again, the court said which was upheld by the Supreme Court, it
would be a waste of time, effort, resources if the court would still
go through the process of determining the extrinsic validity of the
will only to find out that the will not be given effect because there
is a preterition. Because in preterition the annulment (?) of heirs
shall be annulled. In this case, the will had only institution of
heirs. So if there is preterition the will would be entirely annulled.
It would be entirely different if there would have been devisee
and legatees, then the court has to determine its extrinsic
validity. Because even there is institution of heirs which shall be
annulled because of preterition but still devisees and legatees
will be given effect.
For a legacy or devisee to be given effect, you have to determine
if the will is extrinsically valid because there can be no legacy or
devisee without a valid will. But here, there are no legacy or
devisees so the court ruled that there is preterition. Therefore we
can convert the proceedings to intestate proceedings.
08 SEPTEMBER 2016
By: Kelvin Du, Kim Calatrava, Ria Lumapas
SURPRISE QUIZ:
Q: What are the two concepts of substitution under the New Civil
Code?
A: Direct substitution and indirect substitution.
Q: This is a kind of substitution when two or more persons may
be substituted for one heir.
A: Brief substitution.
Q: This is a kind of substitution when two or more heirs are
instituted and one is appointed as substitute for all heirs
originally instituted.
A: Compendious substitution.
Q: This is a kind of substitution by virtue of which the fiduciary or
the first heir instituted is entrusted with the obligation to preserve
and to transmit to the second heir the whole or part of the
inheritance; provided such substitution does not go beyond one
degree from the heir originally instituted; and provided further
that the first heir and the second heir are living at the time of the
death of the testator.
A: Fideicommissary substitution.
Q: What happened in the case of Acain vs. IAC? State the facts,
issue and ruling in relation to Article 854.
ACAIN vs. IAC
October 27, 1987
FACTS: Remecio here died leaving a will. In his will, he left all
the shares to his brother Segundo. He also provided that in case
Segundo would die, then his nephews and nieces would get
such property. Because Segundo died ahead, he was survived
by his children. Constantino, one of Segundo’s children filed a
petition for the probate of the will of Remecio. This was
contested by the adopted child Virginia and the widow Rosa.
ISSUES:
(1) W/N there is preterition.
(2) What is the effect of the institution of the brother to the
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
entire estate to the exclusion of the widow and the
adopted child?
RULING: As to the adopted child, there is preterition. Because
an adopted child has the same rights as an illegitimate child. So
the omission of an adopted child in the will without expressly
excluding him constitutes preterition.
As to the widow, there is no preterition because the widow is not
a compulsory heir in the direct line. Although the widow again is
entitled to receive her legitime. But in this case, there would be
total intestacy, because the institution of Segundo and his
children is totally annulled. Why? Because after the annulment of
the institution of the heirs, nothing is left in the will at all. There is
no legacy, there is no devise. The grant to Segundo is not a
legacy or a devise. Because he is instituted to the universality of
the estate. So it is not a legacy or devise.
Therefore, because there is intestacy and the heirs that will
inherit are the surviving spouse and the adopted child, so the
nephews and nieces are excluded.
ISSUE: With respect to Constantino, W/N he had personality to
contest or to file the petition for probate of will
The grant to Segundo is not a legacy or devise because he is
instituted to the universality of the estate. Therefore, because
there is intestacy, and the heirs who will inherit are the surviving
spouse and the adopted child.
So being excluded because of preterition, the nephews and
nieces did not have the personality to institute the probate
proceedings
Again, it is important to know whether or not the grant is a devise
or legacy or an institution of an heir. Because it will determine
whether or not there is total annulment of the institution. And of
course we have to know who are the heirs who can be preterited.
And what is the effect if there is preterition.
Had Segundo been given a legacy or devise, even if the adopted
child is omitted and there is preterition, he would still have
personality because of the legacy or devise. That would not be
included in the annulment. Only the institution of heirs will be
annulled.
ARTICLE 855. The share of a child or descendant omitted in
a will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so
much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs. (1080a)
Article 855 talks about the share of the child or descendant
omitted in the will. Take note here, this does not necessarily
apply to a case of preterition. Because it says, it must first be
taken from the part of the estate not disposed of by the will.
Remember, even if a compulsory heir in the direct line is omitted
in the will but there is a part of the estate which is not disposed of
will in the will, it is not preterition. Because he can still participate
there. He is just entitled to a completion of his legitime,
So therefore in that case, if a child is omitted and the will did not
dispose the entire estate, so we will complete his legitime. How
do we do that? We distribute first the estate which is not even in
the will. If it is not sufficient, we will get in the portion disposed of
23
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
in the will. We will get from the free portion because we cannot
deduct from the legitimes. We get from the free portion,
If the estate disposed of in the will is not sufficient, we get again
from the free portion. Once completed, then the rest of the
institution can be given effect. So there is no annulment of the
institution because again there is no preterition.
ARTICLE 856. A voluntary heir who dies before the testator
transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except
in cases expressly provided for in this Code. (766a)
Take note, we have to divide the estate here into the legitime and
the free portion. Again, those who are entitled to their legitimes
are called compulsory heirs. Those who are instituted to the free
portion are called voluntary heirs.
With respect to voluntary heirs, those who are instituted to the
free portion, if they predecease the testator, meaning they die
ahead of the testator, they lose their right to the inheritance. How
about if they have children, like the testator instituted his friend X
as heir to ¼ of his estate. So it is a condition that the heir should
survive the testator.
What if the heir, A dies ahead of the testator, but A has his own
children. No more. Because a voluntary heir transmits nothing to
his own heirs. That is with respect to the free portion or the
voluntary heir.
How about the compulsory heirs, those who are entitled to their
legitimes?
The law says a compulsory heir who dies ahead, so
predeceases, becomes incapacitated to inherit, or renounces the
inheritance, shall transmit no right to his own heirs, generally. As
a general rule. We also include here disinheritance, one who has
been disinherited.
So assuming, the testator had children, let’s say A and B. So A
and B are entitled to their legitimes. A has his own children, X
and Y. And A died ahead of the testator. What will happen? Of
course A can no longer inherit because he is dead. How about
his own children. So remember, generally, he transmits nothing
to his own heirs except when the right of representation applies.
When will the right of representation apply? In the cases that I
mentioned, predecease, incapacity, repudiation, disinheritance,
the right of representation will apply only to the three:
predecease, incapacity, and disinheritance. In case of
repudiation, there is no right of representation.
Example:
Testator - 2 children A and B
A - 2 children: X and Y
A and B are compulsory heirs. If a dies, what will happen? A can
no longer inherit. But because the right of representation applies
in predecease, so the share of A will go to his children X and Y
by right of representation.
Estate - 10 million.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
So the legitime of the children would be 5 million. The free
portion is also 5 million.
Legitime:
A- 2.5 Million
B- 2.5 Million
A predeceased:
X- 1.25 Million
Y- 1.25 Million
This is by right of representation. Take note that in succession,
whether legal or testamentary, we apply primarily the rule on
proximity. The nearer relatives exclude those who are far. So
even if under the law on legitimes, the enumerated compulsory
heirs are the children and descendants, it doesn’t follow if the
testator had children and descendants, all of them will inherit.
The nearer relatives, exclude those who are far under the rule or
proximity.
But by the application of the right of representation, those who
are far are elevated to the degree and status of the person
represented. So theoretically, those who are far, because of the
right of representation become just as near. So this is when the
right of representation applies.
So again, this would also be the case if A becomes incapacitated
so he becomes disqualified to inherit. Or if A is disinherited, he
can still be represented. But if A repudiates or renounces his
inheritance, he cannot be represented. So what will happen if A
renounces? What will happen to his share? His share of course
will not go to X and Y. It will go to B.
SECTION 3
SUBSTITUTION OF HEIRS
ARTICLE 857. Substitution is the appointment of another
heir so that he may enter into the inheritance in default of
the heir originally instituted. (n)
We mentioned before in Article 856 that there can be instances
when the heir cannot inherit because of predecease, incapacity,
repudiation or even disinheritance. So, what will happen, it’s
either he will be represented. But there is another possible
consequence, like there is a substitute. So if the heir originally
instituted cannot inherit, so there can be a substitute. Take note,
substitution is a concept which is applicable only to the free
portion. So insofar as the legitime is concerned, we do not use
the term substitution. The testator cannot appoint a substitute to
the legitime. Only to the free portion.
Article 857 defines substitution. It says the appointment of
another heir so that he may enter into the inheritance in default of
the heir originally instituted. Based on this definition, we now
have an idea that in substitution, it’s either the original heir or in
his default, the substitute. So alternative. But that is not really the
case under the New Civil Code. Because this article, the
definition here refers to a direct substitution. So, direct
substitution when the substitute inherits in default of the heir
originally instituted.
But again in our New Civil Code, we also have indirect
substitution. Here, the original heir inherits and after the original
heir, then the second heir. So it’s not alternative. It’s not ‘or’ but
‘and’. But one after the other.
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016

So this is not really an accurate description or definition of shall have the same share in the substitution as in the
substitution. institution. (779a)

The more correct definition is substitution is the appointment So reciprocal substitution. Each heir instituted is also the
of another heir so that he may enter into the inheritance in substitute for the other. So the testator may institute A and B as
default of the heir originally instituted or after such heir. So it his heirs. In case of predecease, incapacity, repudiation of A, B
will cover the situation of direct substitution and indirect will be the substitute.
substitution,
Example:
So in direct: A or B.
Indirect: A and after B Estate- 120,000. If there is no stipulation as to each share, the
presumption is equal.
ARTICLE 858. Substitution of heirs may be:
(1) Simple or common; A- 60,000
(2) Brief or compendious; B- 60,000
(3) Reciprocal; or
(4) Fideicommissary. (n) In default of A, B will get the share of A.

So this merely enumerates what are the different kinds of A- 40,000

substitution. B- 40,000
C-40,000
ARTICLE 859. The testator may designate one or more
persons to substitute the heir or heirs instituted in case If A dies, his substitutes are B and C. They will share equally, so
such heir or heirs should die before him, or should not wish, 20,000 each.
or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases A- ½
to which it refers, shall comprise the three mentioned in the B- ¼
preceding paragraph, unless the testator has otherwise C- ¼
provided. (774) Estate- 120,000

So again, in cases of predecease, incapacity or repudiation, a
substitute may be designated by the testator. So usually, these
are the grounds for substitution,
Under the 2nd paragraph: if the institution with the substitution is
silent as to the causes for substitution, then it will cover the three:
incapacity, predecease and repudiation, unless the testator has
provided otherwise.
Now the substitute steps into the shoes of the person originally
instituted. But the substitute inherits not from the person
originally instituted but from the testator.
So based on that, the qualifications of the substitute must also be
measured in terms of his relationship with the testator and not
with the person substituted. So we cannot also presume
substitution, it has to be expressly provided for and stated by the
testator.
ARTICLE 860. Two or more persons may be substituted for
one; and one person for two or more heirs. (778)
So Article 860 talks of 2 kinds of substitution. Brief substitution
when two or more persons may be substituted for one heir. So
here there is plurality of substitutes.
Compendious substitution when two or more heirs are instituted
and one is appointed as substitute. So there is plurality of
persons substituted.
C predeceased the testator. How do we distribute? They shall
have the same share in the substitution as in the institution.
A- ½ * 120,000= 60,000
B- ¼ * 120,000= 30,000
C- ¼ * 120,000= 30,000 (predeceased)
Substitute:
A- 2/3 * 30,000= 20,000
B- 1/3 * 30,000= 10,000
Therefore:
A- 60,000+20,000= 80,000
B- 30,000+10,000= 40,000
ARTICLE 862. The substitute shall be subject to the same
charges and conditions imposed upon the instituted heir,
unless and testator has expressly provided the contrary, or
the charges or conditions are personally applicable only to
the heir instituted. (780)
GR: So when the substitute steps into the shoes of the heir
originally instituted, whatever charges and conditions imposed
upon the original heir should also apply to the substitute. So if the
original heir instituted is subject to the condition that he should
give 10 percent of the proceeds to the church for example, and
then he cannot inherit because of predecease, incapacity or
repudiation, then the substitute gets the share subject to the
same condition.

ARTICLE 861. If heirs instituted in unequal shares should be EXC:

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
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
1. Unless the testator has expressly provided the contrary,
when he says that this is only applicable to the original
heir but not to the substitute.
2. Or the charges and conditions are personally applicable
only to the heir instituted. Like, in the institution, the
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
original heir shall only get the inheritance if he will pass
the bar exam. But the substitute is already a lawyer. So
obviously passing the bar exam is inapplicable to him
because he already passed it. So there is no need for
him to take the bar exam and pass it.
ARTICLE 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. (781a)
This is a case of indirect substitution. We have a first heir and a
second heir. They will both inherit the property one after the other
or successively.
Conditions or requisites
1. The law says there must be a first heir or a
fiduciary
The first heir has the obligation to preserve and to transmit to a
2nd heir the whole or part of the inheritance. What is the nature of
his right over the inherited property? Is it as owner? The law says
he has to preserve and transmit. Therefore he cannot alienate
the property, he cannot dispose, he cannot destroy. He has to
preserve it and then later on he has to transmit it or deliver it to a
second heir. The first heir is just given a usufruct, not exactly
ownership.
So here, the second heir receives the property from first heir but
the second heir inherits from the testator, not from the first heir.
So here the second heir, there is no restriction as to what he can
do with the property. No more obligation to preserve or transmit.
He becomes the absolute owner.
2. The first heir and the second heir must not go
beyond one degree
So their relationship should not go beyond one degree. What do
we mean by one degree? Some authorities say it is one transfer.
But it has been clarified that one degree or degree means
generation. So one generation. So it only refers to a parent and a
child. It cannot be grandparent and child because that would be
two degrees. So because of this article also, a fideicommissary
substitution cannot apply to juridical persons because the latter
cannot comply with this requirement of one degree. So only
natural persons can be the subject.
3. Both the first and second heir must be living, or are
living at the time of death of the testator
This is because it is a requirement that the heir should survive
the testator. Now of course, we say must be living, it should
cover those instances when the heirs are still conceived. But we
only apply this to the second heir. It cannot apply to both heirs.
When you say both are conceived, pwede ba na sya nga ang
mama gibuntis pa pagkamatay sa testator ug ang iyang anak
gibuntis pa pud? It’s not possible, diba? So ang mama naanak
na gyud na sya pero ang second heir, gibuntis pa nya.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
When you say conceived, it must comply with Articles 40 and 41.
So even if the scond heir had an intra uterine life of less than 7
months, it should live for at least 24 hours before he can inherit
because that is when he acquires juridical personality. Or if he
had an intra uterine life of 7 months, it’s okay as long as he was
born alive. So living or at least conceived.
ARTICLE 864. A fideicommissary substitution can never
burden the legitime. (782a)
Take note, as to the legitime, it has to go to the heirs
unhampered by any conditions, charges, burdens substitutio. A
fideicommissary substitution can only be applied to the free
portion. You cannot apply this to the legitime. If we are allowed to
impose conditions, charges, burdens on the legitime, it might be
very easy for the testator to circumvent the law on legitimes by
imposing very difficult conditions which he knows could never be
complied with by the heir. So free ang legitime from any
substitution or burden.
ARTICLE 865. Every fideicommissary substitution must be
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance
to the second heir, without other deductions than those
which arise from legitimate expenses, credits and
improvements, save in the case where the testator has
provided otherwise. (783)
This is another requirement for the validity of a fideicommissary
substitution. The law says it must be expressly made.
So what do we mean by expressly made? It can either be termed
“I hereby institute my heirs A and B into a fideicommissary
substitution.” You can use the terms fideicommissary
substitution. Or without calling it as such, it can still be valid if it is
made clear that the first heir has the obligation to preserve and
transmit the property to the second heir. The words “preserve”
and “transmit” need not be actually used. Other words having the
same meaning can be used, like “pass on unimpaired” means
the same.
What are the obligations of the first heir? He shall be obliged to
deliver the inheritance without any deductions except those
which arise from legitimate expenses, credits and improvements,
unless again the testator provides otherwise. These are only the
deductions allowed by the first heir.
ARTICLE 866. The second heir shall acquire a right to the
succession from the time of the testator's death, even
though he should die before the fiduciary. The right of the
second heir shall pass to his heirs. (784)
Again, as we have already discussed, the first and second heirs
are both heirs. So even if the second heir gets the property from
the first heir, he does not inherit it from the first heir. That is also
the reason why the second heir should be living or must be living
at the time of the testator’s death because he is also an heir.
The testator died in 2000. We have a fideicommissary
substitution, A is the first heir. After 10 years he must deliver the
property unimpaired to B, the second heir. The requirement is
that upon the testator’s death in 2000, both A and B must be
living.
26
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
What if on the fifth year the second heir dies, namatay si B, what
happens to the fideicommissary substitution? Is it extinguished?
Does A become the absolute owner?
No, the second heir already acquires rights to the property from
the moment of death of the testator. If B dies even before arrival
of the period, his rights shall be acquired by his own heirs. Naa
gihapon obligation si A after 10 years but he should deliver it to
the heirs of B.
ARTICLE 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 part of the
hereditary property in order that he may apply or
invest the same according to secret instructions
communicated to him by the testator. (785a)
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
Again, one requirement for a fideicommissary substitution to be
valid is that it should be made in an express manner. We already
discussed this, either it is called a fideicommissary substitution
by giving it this name or imposing upon the fiduciary the
obligations. It has to be very clear that there is an obligation to
preserve and transmit because if it is not clear, it can be
considered as an advice or suggestion then there is no obligation
on the part of the 1st heir. It is not effective as a fideicommissary
substitution.
2. Provisions which contain a perpetual prohibition to
alienate, and even a temporary one, beyond the
limit fixed in article 863
The second paragraph is not applicable to a fideicommissary
substitution because in the latter, the testator can provide for the
obligation of the first heir to reserve for as long as he wants. The
first heir is just a usufruct. So it can be provided that the first heir
can use the property but after 50 years he shall deliver it to a
second heir. It is allowed in a fideicommissary substitution.
We are referring to a different kind of institution here in the
second paragraph. Where there is a perpetual prohibition to
alienate, I hereby give to A this parcel of land but A cannot sell it
forever as long as he lives or perpetually, this shall remain in the
estate of A.
Under our law, a perpetual prohibition to alienate is not valid. It is
allowed only for a period not exceeding 20 years. So beyond
that, muingon ka, you cannot sell this for 50 years, pwede sya
maconsider lang for the 1st 20 years but beyond, dili na pud. Or
perpetual prohibition to alienate or even a temporary one, if the
prohibition exceeds or is beyond the limits fixed in article 863.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
So we said that actually, the law allows a certain period in which
ownership over a property can be curtailed, but for a period not
exceeding 20 years. If you say forever you cannot alienate, that’s
only up to 20 years. If you say 30 years, that’s still only up to 20
years.
So for example, the testator left a will. He instituted A as heir to a
parcel of land. If he says A cannot sell this land for 30 years,
again the prohibition will only be valid up to 20 years. If he says,
A cannot sell this for 15 years. Is it valid? It does not go beyond
20 years, so valid.
So now, the testator died in 2000. A already inherited the
property. On the fifth year, 2005, A died and he was survived by
his son B. Is B obliged by the condition imposed by the testator
upon A? Take note, he cannot sell for 15 years and then the heir
died after 5 years so naa pay remaining 10 years which he
cannot sell. Is B bound by the same prohibition?
Yes. B has to observe the prohibition for 10 years. And then in
2010, B died also, survived by his son C. Naa pay nabilin na 5
years diba? Is C obliged? No more. Because that is already
beyond the limit in Article 863, that is already beyond one
degree. So only between A and B. After that, no more na, even if
it is temporary, even if it is 15 years lang.
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
Almost the same as my example. The testator says I hereby give
to A 1 million and after his death he will give this to B and after B
to C, again, it cannot go beyond one degree, observe the limit in
article 863.
4. Those which leave to a person the whole 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
I hereby give to X 10 million only for the purpose of
administration so he may comply in accordance to my instruction.
What is his instruction? Secret. So unsaon nato pagkabalo kung
mao ba gyud to ang instruction sa testator? We have no way of
knowing, so that is not allowed. So that’s the meaning of no.4.
But if he left it to X as heir then X can do whatever he wants,
that’s allowed because its already given to X. Pero in no. 4, he
only left that for the purpose of applying or investing to some
other purpose. Secret instructions are not allowed. The
instruction must be clear.
ARTICLE 868. The nullity of the fideicommissary
substitution does not prejudice the validity of the institution
of the heirs first designated; the fideicommissary clause
shall simply be considered as not written. (786)
For example, it’s not very clear as to the obligation of the first heir
to transmit, so if there is such kind of institution and it is not clear,
then we do not have a fideicommissary substitution. Then it will
be considered as a simple institution of the first heir because the
rights of the first heir shall not be prejudiced. The
fideicommissary substitution clause shall simply be treated as not
written.
27
 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016

Or maybe there is a fideicommissary substitution intended but condition that the knowledge that B died in a place crash comes
the second heir predeceased the testator. What happens to the to surface. Kung wala gyud namatay, dili mahatag. Kung
clause? It is considered as not written because it is not valid. But namatay gyud, ihatag kay A.
what happens to the property? It shall go to the first heir because
the rights of the first heir shall not be prejudiced. It’s as if there’s As to cause
no fideicommissary substitution. 1. Potestative condition – the fulfillment depends solely on
the will of the heir, devisee or legatee
ARTICLE 869. A provision whereby the testator leaves to a 2. Casual – it depends on chance or upon the will of a 3rd
person the whole or part of the inheritance, and to another person
the usufruct, shall be valid. If he gives the usufruct to 3. Mixed – depends partly on chance or the will of the
various persons, not simultaneously, but successively, the heir, devisee or legatee.
provisions of Article 863 shall apply. (787a)
As to effect
Here the ownership is given to A for example but the usufruct is 1. Suspensive – you need to fulfill the condition before the
given to B, C and D. If the usufruct of B, C and D would be institution can be given effect.
simultaneous, it is valid. But if the testator says, I hereby give the 2. Resolutory – once that condition happens the institution
naked title to A and the usufruct to B. Upon the death of B, to C. is extinguished.
Upon the death of C, to D. Again, it will only be valid for one
degree. Upon the death of B, to C. Then wala na because that As to possibility of fulfillment
would be going beyond the limit of article 863. If simultaneous 1. Possible
ang usufruct, maski apo pa na sa tuhod, valid. Kung successive, 2. Impossible
observe the rule under article 863.
As to mode
ARTICLE 870. The dispositions of the testator declaring all 1. Negative
or part of the estate inalienable for more than twenty years 2. Positive
are void. (n)
As to form
We discussed this already. The prohibition to alienate is only 1. Express
valid up to 20 years. But even if it is 15 years already, temporary 2. Implied
lang but it will go beyond the limit in article 863 of one degree, it
will not also be considered valid as to the excess. MORENTE vs. DE LA SANTA
G.R. L-3891
December 19, 1907
SECTION 4
CONDITIONAL TESTAMENTARY DISPOSITIONS Here, there are clauses in the will.
AND TESTAMENTARY DISPOSITIONS WITH A TERM
1. I hereby order that all real estate which may belong to
ARTICLE 871. The institution of an heir may be made me shall pass to my husband, Gumersindo de la Santa.
conditionally, or for a certain purpose or cause. (790a) 2. That my said husband shall not leave my brothers after
my death, and that he shall not marry anyone; should
So here, we will start with the discussion on the different kinds of my said husband have children by anyone, he shall not
institution. We already discussed what is institution. Article 871 convey any portion of the property left by me, except
mentions about conditions. Actually these are the different kinds the one-third part thereof and the two remaining thirds
of institutions. shall be and remain for my brother Vicente or his
children should he have any.
Kinds of institution 3. After my death I direct my husband to dwell in
1. Pure and Simple – those which are not subject to any the camarin in which the bakery is located, which is one
term, condition or mode. Immediately upon death of the of the properties belonging to me.
testator the rights are transmitted to the heir, of course
subject to the probate of the will. These are the clauses. And then the husband married again. It is
2. Conditional institution – the institution made subject to provided here that he should not marry anyone and if he should
a condition. have children he should not convey any portion of the property
3. Institution subject to a term – so the institution has to left by the testatrix.
observe a certain term or period.
4. Institution subject to a mode or a modal institution – The question here was the legacy, take note ha, these conditions
further explained in Article 882 cannot be applied to the legitime, only to the free portion. So
here, what if the effect if the husband marries again or if the
Now, with respect to condition, Article 871 mentions a condition. husband should have children by anyone or if the husband would
A condition is a future and uncertain event upon which the not live in the camarin? Would these provisions be considered as
effectivity of the extinguishment of the effects of an institution is conditions? Are these conditions?
subordinated. So future and uncertain. Although a condition may
also apply to a past event which is unknown to the parties. Now here, for the imposition in the will to be considered as a
condition, it must be very clear na there is a consequence for the
When you say a past event, we are actually referring to a future non fulfillment of that condition.
knowledge of a past event. I will give to A this parcel of land if B,
my best friend, really died in that plane crash. So subject to a Here the SC said that it is not very clear from the provisions of
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
the will that any condition can be implied. We cannot that it was
the intention of the testatrix that if her husband marries again he
should forfeit the legacy. So in order to make a testamentary
provision conditional, such condition must clearly appear rom the
language in the will. It must be very clear that once these
conditions appear, this is the consequence.
If for example the testator just said he should pass the bar exam,
is that a condition? Otherwise he will not inherit. Now that is a
clear condition. But if he just said, my son should pass the bar.
But there’s no consequence given. Later on we will find out that
In case of doubt whether it is a condition or a mode, interpret it
as a mode. If there is doubt whether it is a mode or a suggestion
or advice, interpret is as a suggestion or advice.
ARTICLE 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be
considered as not imposed. (813a)
The testator cannot impose any charge, condition or substitution
whatsoever on the legitime. Again, the reason here is to prevent
the circumvention of the law on legitimes. If the testator would
provide such difficult conditions, like my son, to get his legitime,
should pass the bar exam, pero bugo kayo iyang anak (ouch),
kabalo jud sya na di sya kapasar, di man gani kapasar ug civil
service exam. So clearly wala sya intention na ihatag iyang
legitime. You cannot impose such condition.
There are only 2 recognized charges or burdens allowed by
law to be imposed on the legitime:
1. Reserva troncal which we will discuss in article 891.
That is a burden on the legitime.
2. The law on partition, the testator can prohibit the
partition of his estate for 20 years even if that pertains
to the legitime. So those are the only recognized
burdens that can be imposed on the legitime.
15 SEPTEMBER 2016
By: Jennifer Mortejo
If you remember in Obligations and Contracts, what is the effect
if an impossible condition is imposed in an obligation?
ARTICLE 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.
The condition not to do an impossible thing shall be
considered as not having been agreed upon. (1116a)
So it shall annul the obligation, meaning, it will really affect the
existence of the obligation. But in Succession, if it is imposed
upon an institution, it shall not be considered as not imposed or
not written. There is a difference. Why? Because in Succession,
the underlying consideration is the liberality or generosity of the
testator. So even if there is an impossible condition attached to
the institution, consider it as not written. The institution should
still be given effect.
In obligations, on the other hand, we cannot say that the
underlying consideration is the liberality or generosity of the
creditor. The condition in obligations is really attached to the
existence of the obligation. If the condition is tainted with
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
impossibility or illegality, then it will really affect the existence of
the obligation. Here, the obligation is annulled.
But again, we have a different treatment in so far as institution in
succession is concerned.
MICIANO vs. BRIMO
This is not the first time that Juan, the testator, who imposed a
condition in his will that if the heirs opposed the condition, the
heirs lose their inheritance. Here, the testator wanted his
properties to be distributed in accordance with Philippines laws,
not in accordance with his nationality. And this is contrary to
Article 16 CC, because Article 16 says “it shall be distributed in
accordance with his national law”. He was Turkish.
Some of the heirs opposed. Would the heirs who opposed lose
their legacy, inheritance or devise because of the provision in the
will?
The SC said no. First of all, the provision which states that “the
estate shall be distributed in accordance with Philippine law” is
illegal because it violates Article 16 CC. So if the heir would
oppose that condition, the opposition will not cause them to lose
their inheritance, legacy or devise. The condition is considered
not written and the institution of the legatees is valid and
effective.
ARTICLE. 874. An absolute condition not to contract a first
or subsequent marriage shall be considered as not written
unless such condition has been imposed on the widow or
widower by the deceased spouse, or by the latter's
ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or bequeathed to
any person for the time during which he or she should
remain unmarried or in widowhood. (793a)
“Absolute condition not to contract a first or subsequent
marriage”
General rule: It is not valid. It shall be considered as not written.
Ex. I hereby give to A P1 million if A will not marry or if A will not
marry again.
So this is not allowed. Why? This kind of condition will encourage
immoral arrangements because if an heir is not allowed to marry,
then he can just do indirectly what has been prohibited. Mag-live
in nalang sila at least he can still get the same result although
wala lang marriage. And that is immoral.
Exception: The condition has been imposed by the deceased
spouse or by the relative, by the descendants or ascendants of
the deceased spouse.
Ex. A and B are a couple. A executed a last will and testament
giving to the wife certain properties over and above the legitime
(Of course we are talking here of the free portion because in so
far as the legitime is concerned, you cannot impose any
condition among others).
“I hereby give this jewelry to my beautiful wife provided that she
will not remarry when I die.”
Is that valid? What happens if the wife remarries? Then she will
forfeit the inheritance. So that is a valid prohibition for
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
sentimental reasons. Because if for example the husband gave
several properties to the wife and then the husband died, so the
wife inherited those properties. And then the wife will marry
another person, those properties coming from the first spouse
will not be merged into the property regime with the second
spouse.
“If the imposition is made by the ascendants or descendants of
the deceased spouse.”
Ex. Ang imuhang in-law, gitagaan ka ug house and lot subject to
the condition na dili ka mag-remarry kung mamatay ang ilahang
anak otherwise they will forfeit the inheritance. So that is a valid
prohibition.
As to second paragraph of Article 874:
Ex. I hereby give to A an allowance of Php 10,000/month
provided that she will not remarry or she will remain in
widowhood.
If she remarries, then she will lose the inheritance. This is
allowed because here, the allowance or personal prestation is
already effective. Na-enjoy na niya. So it’s her choice whether or
not she would continue receiving that allowance. Kung
halimbawa gusto jud siya magminyo, then she will forfeit the
allowance. So this is different with the first paragraph because
here, na-enjoy na nimu.
ARTICLE 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of the
testator or of any other person shall be void. (794a)
Here, we have what we call “disposition captatoria”.
Ex. I hereby give to A my house and lot in Matina, Davao City,
provided that they will also give to me or to my child his house
and lot in Jacinto St., Davao City.
This is prohibited because this makes a will bilateral. We discuss
before, a will should be unilateral. Any disposition in the will
should be given by the testator without any expectation of
receiving something in return. The will is supposed to be
unilateral as distinguished from bilateral where parties give to
each other equivalent prestations. So here, this violates the
principle. This is void because it makes successional rights
somewhat contractual.
Although again, a reciprocal will is not void. When you say
reciprocal wills, there are two wills. A executed a will giving to B
his properties. B also executed a will giving to A his properties. It
is valid because there is no condition that I will give to you if you
will also give to me something. But their wills have reciprocal
provisions so that’s different from disposition captatoria.
ARTICLE 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. (795a)
What is a potestative condition?
It is a condition which is dependent solely on the will of the heir
concerned.
Let’s compare this to an obligation. Can a potestative condition
be imposed upon an obligation? What happens if the obligation is
subject to a potestative condition? Is that obligation valid?
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
You have to make a distinction. If the condition is potestative
suspensive on the part of the debtor, it is not valid, including the
obligation. Why? Because when you make the condition purely
dependent on the will of the debtor, chances are he will never
fulfill it. Because when he fulfills it, that means there will be an
obligation. And nobody likes an obligation. It becomes illusory
when you impose a potestative condition before an obligation
can arise. But if the obligation is subject to a potestative condition
and suspensive on the part of the creditor, it is valid. Because the
creditor will do anything for the obligation to arise. Or if it is
potestative resolutory either on the part of the debtor or creditor,
still valid. So, it is only when the condition is potestative
suspensive on the part of the debtor that the conditional
obligation becomes void. In other cases it is valid.
In Succession, it doesn’t matter whether suspensive or
potestative on the part of the heir, it is valid. Under Artcile 876, if
it is purely potestative on the part of the heir (meaning dependent
upon the sole will of the heir), when shall the condition be
fulfilled? The law says, as soon as he learns of the testator’s
death. That shall be the time of fulfillment.
Ex. I will give to A Php 1 million if A will cut his hair short.
As soon as A learns of the death of the testator, he can already
comply with the condition.
This rule shall not apply when the condition already complied
with cannot be fulfilled again.
Ex. I hereby give to A Php1 million if he will shave his head bald.
As a general rule, he has to comply with the condition as soon as
he learns the death of the testator. But if before the testator dies
he is already bald, he cannot comply with it again. It shall be
considered as already complied with.
As to the manner of compliance, how do you comply with this
kind of condition? Authorities say that substantial compliance is
sufficient if it is a potestative condition. Why substantial?
Because if it is dependent upon the will of the heir, it means that
the testator had sufficient trust on the heir, legatee or devisee. By
imposing the potestative condition, the testator is delegating now
to the heir, legatee or devisee the manner in which they will fulfill
the condition. So, substantial compliance would be sufficient.
ARTICLE 877. If the condition is casual or mixed, it shall be
sufficient if it happens 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. (796)
Here, the condition is casual or mixed. What is a casual
condition? It is one which is dependent purely upon chance or
upon the will of a third party. Mixed? Partly upon chance and
partly upon the will of the parties.
When shall this condition be fulfilled? The law says, it is sufficient
if it happens or if it is fulfilled at any time before or after the death
of the testator, unless the testator has provided otherwise. Here,
it is more difficult to comply because it is not just solely
dependent upon the will of the heir. He has to consider other
factors. It is not really within his control.
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RD
3 YEAR – MANRESA 2016
Should the condition have existed or should have been fulfilled at
the time the will was executed, and the testator was unaware of
that fulfillment, it shall be deemed as complied with.
Ex. Passing the bar exam – it is a mixed condition; partly upon
chance and partly upon your own will or your effort.
The third paragraph, if the testator had knowledge of the
fulfillment of the condition, it shall be considered as fulfilled only it
is of such a nature that it can no longer exist or be complied with
again. Again, like passing the bar exam, if it already happened at
the time when the testator made the will and he knew of it, it is of
such nature that it cannot be complied with again. So, it is
deemed fulfilled.
Ex. Winning in the beauty pageant
When he made the will, the testator knew that the heir already
won in the beauty pageant but he made it as a condition. So
meaning, it shall be fulfilled again. The heir has to join another
beauty pageant again so that she could get the inheritance,
devise or legacy.
As to the manner of compliance, authorities say that it is actual or
strict. Because it could be inferred that the testator did not have
confidence in the heir. And the bequest is considered to have
been deliberately made subject to chance. Hence, strict
compliance is required.
ARTICLE 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. (799a)
Before we discuss suspensive term, you know that a suspensive
condition is an uncertain and future event which must be
complied with or fulfilled before the institution will be effective (if
applied in succession). Unless the condition is fulfilled, the heir
does not have any right over the inheritance, legacy or devise. It
is the fulfillment of the condition that makes the institution
effective.
Now if it is a suspensive term, it is a future and certain event
which will definitely happen or arrive. There is an element of
certainty when it is a term. It will surely happen or arrive.
Although in some cases, again, we may not know when.
So if the institution is subject to a suspensive term, meaning the
heir has to wait for that term before the heir can enter into the
inheritance, does it mean that prior to the arrival of the term the
heir does not have any right yet? No. In an institution subject to a
suspensive term, the heir already acquires rights but it is just
deferred by the term. So the law says even if the heir dies before
the arrival of the term:
Ex. I hereby give this inheritance to A, but he shall get the
inheritance 2 years after the death of the testator. 2 years is the
term.
Before 2 years, the heir could not demand to deliver the
inheritance to him. What happens if the heir dies after the 1st
year? Does the heir lose the right to the inheritance?
No. It does not prevent the instituted heir from acquiring his rights
and transmitting them to his heirs even before the arrival of the
term. If the heir dies 1 year after the date of the death of the
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
testator, his rights will be transmitted to his heirs. So pag-abot sa
2 years, ihatag gihapon but no longer to the heir but to his heirs.
But if it is suspensive condition:
Ex. I will give to A Php1 million if A pass the bar exam.
However, A dies, so he will never pass the bar exam. Thus, he
will not transmit anything to his heirs. That’s the difference
between a suspensive term and condition.
ARTILCE 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. (800a)
Here, the condition is negative potestative, not to do or not to
give. When is it effective?
Ex. I hereby give to P1 million provided that A will never ever cut
his hair.
Is that potestative? Yes because it is dependent solely upon the
will of the heir.
When is it effective? The institution is effective immediately.
How about the condition that he will not cut his hair? We have
here the security. There’s a security or a bond to ensure that A
will not do what has been prohibited. This bond is what we call
“caucion muciana”.
If for example A does what has been prohibited, he will forfeit the
inheritance and the bond will also answer for the damages. Like
if what was inherited is a personal property, a car. He will get the
car if he will not cut his hair. What if in the meantime, he already
disposed of the car and then he cut his hair? The bond will
answer for the value of the car. He has to return the car or if he
won’t, the value as embodied in the bond or security.
ARTICLE 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. (801a)
Here, it is either the institution is subject to a suspensive
condition or term. Meaning, unless the condition is fulfilled or the
term arrives, the heir will not yet receive or get the inheritance.
So what will happen to the property given prior to the fulfillment
of the condition? The law says it shall be placed under
administration.
What if the condition will never be fulfilled?
Ex. The condition is “if A will pass the bar exam” and A dies even
before taking the bar exam. Thus, it is already certain that he will
never pass the bar exam. The property will now be distributed
among the legal heirs of the testator unless the testator provided
for substitution or unless representation or accretion will apply.
ARTICLE 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.
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RD
3 YEAR – MANRESA 2016

Administration of the estate, that would be under the Rules 78-79
of the Rules of Court.
Executor – a person who is appointed in the will to administer
the properties or the estate of the decedent; Executrix, if female.
The law says, it may be claimed at once, meaning the institution
is effective immediately provided that the heir gives a security.
The security is a guarantee or assurance that the heir will comply
with the modes provided in the will. That is the reason for the
security.

So if you are appointed as executor in the will, it is not automatic What happens if the heir disobeys or does not comply with the
also that you will become the executor. The following should still provisions made in the will?
be done: The law makes this obligatory, meaning the heir forfeits the
1. There has to be an appointment by the court. So when inheritance.
you are appointed, you still have to file a petition for
issuance of letters testamentary (document to cover the We have to know the distinctions between a mode and a
appointment). condition.
2. You will be required to post a bond unless you are
excused. MODE CONDITION
The institution is effective The institution may or may not
Administrator - if for example there is a will but there is no immediately. The heir can become effective
person appointed as administrator and eventually one is immediately enter the
appointed; Administratrix, if female. inheritance.
Obligatory: Heir has to do Not obligatory: Heir is not
If there is no will at all but the estate cannot be settled what is imposed by the obliged to fulfill the condition
immediately because maybe the heirs cannot agree among testator under the pain of as it may depend upon chance
themselves, an administrator can also be appointed. forfeiting the inheritance in or of 3rd persons and the
case of non-compliance condition may or may not
The administrator is also required to file a petition for the happen and even beyond the
issuance of letters of administration (document to cover the control of the heir.
appointment as administrator) for the appointment to be effective.
RABADILLA vs. CA
ARTICLE 882. The statement of the object of the institution,
or the application of the property left by the testator, or the FACTS: Aleja Belleza died but he instituted in his will Dr. Jorge
charge imposed by him, shall not be considered as a Rabadilla as a devisee to a 511, 855 hectare land. The codicil
condition unless it appears that such was his intention. contained the ff provisions:
That which has been left in this manner may be claimed 1. Rabadilla shall have the obligation until he dies, every
at once provided that the instituted heir or his heirs give year to give to Belleza 100 piculs of sugar until Belleza
security for compliance with the wishes of the testator and dies;
for the return of anything he or they may receive, together 2. Should Rabadilla die, his heir to whom he shall give Lot
with its fruits and interests, if he or they should disregard No. 1392 shall have the obligation to still give yearly,
this obligation. (797a) the sugar as specified to Belleza.
3. In the event that the lot is sold, leased, or mortgaged,
Article 882 talks of what we call “modal institution”. the buyer, lessee, mortgagee shall have also the
obligation to respect and deliver yearly sugar to
Modal institution – kind of institution where there is an object of Belleza. Should the command be not respected Belleza
the institution, application of the property and imposition of a shall immediately seize the lot and turn it over to the
charge. testarix near descendants.

“Object of the institution” In 1983, Dr. Rabadilla died. He was survived by Johnny
Ex. I hereby give B Php 1 million to finance his bar exam. Rabadilla.

“Application of the property” In 1989, Maria Belleza sued Johnny Rabadilla in order to compel
Ex. I give to A this land consisting of 10 hectares and the Johnny to reconvey the said land to the estate of Aleja Belleza
proceeds every year, ¼ he will give to the victims of the Typhoon because it is alleged that Johnny failed to comply with the terms
Yolanda. of the will; that since 1985, Johnny failed to deliver the fruits; and
that the the land was mortgaged to the Philippine National Bank,
“Imposition of a charge” which is a violation of the will.
Ex. I hereby give to B P10 million but he will give 5000/month to
X for his allowance. ISSUE 1: Whether this is a case of substitution

So when the institution is made in this manner, then this is what
we call a modal institution. What is the consequence of such
institution? The heir is obliged to comply with the modes
mentioned by the testator.
How about the inheritance, legacy or devise? Is it already
effective if for example there is an object mentioned or
application or charge? Or does the heir have to comply first with
the object, application or charge of the property?
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
RULING: Not a simple substitution.
In simple substitutions, the second heir takes the inheritance in
default of the first heir by reason of incapacity, predecease or
renunciation. The Codicil does not provide that should Dr.
Rabadilla default due to predecease, incapacity or renunciation,
the testatrix's near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his heirs
not fulfill the conditions imposed in the Codicil, the property
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
referred to shall be seized and turned over to the testatrix’s near
descendants.
ISSUE 2: Whether or not this is a case of fideicommissary
substitution
RULING: No fideicommissary substitution.
In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same later
to the second heir. Here, the instituted heir is in fact allowed
under the Codicil to alienate the property provided the
negotiation is with the near descendants or the sister of the
testatrix. Thus, a very important element of a fideicommissary
substitution is lacking, the obligation clearly imposing upon the
first heir, the preservation of the property and its transmission to
the second heir. Also, the near descendants' right to inherit from
the testatrix is not definite. The property will only pass to them
should Dr. Rabadilla of his heirs not fulfill the obligation to deliver
part of the usufruct to private respondent. Moreover,
fideicommissary substitution is void if the first heir is not related
by first degree to the second heir. In the case under scrutiny, the
near descendants are not all related to the instituted heir, Dr.
Rabadilla.
ISSUE 3: Is this a conditional institution?
RULING: Not a conditional institution.
It is clear that the testatrix intended that the lot be inherited by Dr.
Rabadilla. It is likewise clearly worded that the testatrix imposed
an obligation on the said instituted heir and his successors-in-
interest to deliver sugar to Belleza, during the lifetime of the
latter. However, the testatrix did not make Dr. Rabadilla‟s
inheritance and the effectivity of his institution as a devisee,
dependent on the performance of the said obligation. It is clear
though that should the obligation be not compiled with the
property shall be turned over to the testatrix near descendants.
Since testamentary dispositions are generally acts of liberality an
obligation imposed upon the heir should not be considered a
condition unless it clearly appears from the Will itself that such
was the intention of the testator. In case of doubt, the institution
should be considered as modal not conditional.
The manner of institution of Dr. Rabadilla is modal in nature
because it imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution. A “mode”
imposes an obligation upon the heir or legatee but it does
not affect the efficacy of his rights to the succession. On the
other hand, in a conditional testamentary disposition, the
condition must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition suspends
but does not obligate; and the mode obligates but does not
suspend. To some extent, it is similar to a resolutory
condition.
Q: If there is doubt whether the provisions constitute a
mode or a condition, how do we resolve the doubt?
In case of doubt, interpret the provision in favor of a mode.
Why? Because between a mode and a condition, the mode is
more in keeping with the concept of liberality or generosity.
Although it is obligatory, but it is sure that the property will really
be given only that the heir has to comply and has to give a
security and a bond. In a condition, on the other hand,
sometimes it cannot be fulfilled and the heir will not get anything.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Q: In case of doubt whether the provision is a mode or a
suggestion/advice, how do we interpret the doubt?
Interpret the provision merely as an advice or suggestion. It is
because between the two, a suggestion/advice is one which is
more in keeping with the concept of liberality or generosity.
Although a mode is immediately effective but so is an advice or
suggestion. However in a mode, if it is not complied with, the heir
loses the inheritance. But if it is just a suggestion or advice, the
heir will not forfeit the inheritance. The suggestion or advice is
more liberal.
ARTICLE 883. When without the fault of the heir, an
institution referred to in the preceding article cannot take
effect in the exact manner stated by the testator, it shall be
complied with in a manner most analogous to and in
conformity with his wishes.
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. (798a)
If the mode cannot be complied with but without the fault of the
heir, the law says even if it is not in the exact manner, substantial
compliance is already acceptable.
If the person is prevented from fulfilling the mode or the
condition, without the fault of the heir, the condition shall be
deemed to have been complied with. So, there’s constructive
fulfillment.
Ex. The condition is “to pass the bar exams”, but the legal heirs
prevented the heir from passing the bar exam by cutting his
hands and so the heir cannot write anymore. In this situation, the
condition is deemed complied with.
ARTICLE 884. Conditions imposed by the testator upon the
heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by this
Section. (791a)
We have the law on obligations and contracts. We learned about
conditions there. And also, we have the law on succession and
still we discuss conditions. So the law says, the rules governing
conditional obligations can also be applied in so far as not
inconsistent with the provisions in succession.
There are other provisions which are inconsistent, like impossible
condition in Obligations and Contracts which annuls the
conditional obligation while in Succession, the impossible
condition shall not be considered as written. We follow, of
course, the provision in Succession. But in all other matters
which are not inconsistent, then we can also apply the provisions
or articles relating to conditions imposed in obligations.
ARTICLE 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. (805)
Article 885 talks of a period, whether suspensive or resolutory. If
it is a suspensive period, the heir has to wait for the arrival of the
period although it does not prevent the said heir from acquiring
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
rights to the succession. So even if he dies prior to the arrival of
the period, his heirs already inherit his rights.
Resolutory period, the happening or the arrival of the period
extinguishes the rights of the heirs to the inheritance. So when
the institution is subject to a resolutory period/condition, the
institution is effective immediately but there’s a requirement of
giving a security. If it is a resolutory period, it will really arrive or
happen. Time will come that the rights of the heirs to the
inheritance will cease. What happens to the property? Are we
sure that the property will still exist at the time when the period
arrives? We are not sure. That is why there is a requirement of a
bond or security to be provided by the heir.
SECTION 5
LEGITIME
ARTICLE 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.
ARTICLE 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.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must be
duly proved.
The father or mother of illegitimate children of the three
classes mentioned, shall inherit from them in the manner
and to the extent established by this Code. (807a)
There are only four kinds of compulsory heirs under our present
law. This has already been modified by the Family Code. With
respect to children we have two kinds: Legitimate and Illegitimate
The following are the compulsory heirs:
1. Legitimate children and descendants;
2. In their absence, legitimate parents and ascendants;
3. Surviving spouse; and
4. Illegitimate children
For example you have the testator and his children and
grandchildren, who do you think will inherit? Will all of them
inherit because the law says “legitimate children and
descendants”?
We apply the rule on proximity. The nearer relatives exclude
those who are far except when the right of representation
applies.
In default of the legitimate children and descendants, we have
legitimate parents and ascendants. They will only inherit in the
absence of legitimate children and descendants. They are called
the secondary compulsory heirs.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
And then we have the surviving spouse, the widow/widower. The
surviving spouse is not excluded by anyone. They are primary
compulsory heirs in the same level as legitimate children and
descendants. They also concur with the children and
descendants.
And then the illegitimate children, they are not also excluded by
the parents, spouse or legitimate children. They concur with the
other compulsory heirs. They are also primary in that sense. In
their case, however, their filiation must be duly proved.
ILANO vs. CA
G.R. No.104376
February 23, 1994
The SC said in this case that before Article 287 can be availed
of, there must first be a recognition of paternity either voluntarily
or by court action. This arises from the legal principle that an
unrecognized spurious child like a natural child has no rights
from his parents or to their estate because his rights spring not
from the filiation or blood relationship but from his
acknowledgment by the parent (this rule still applies even today).
In other words, the rights of an illegitimate child arose not
because he was the true or real child of his parents but because
under the law, he had been recognized or acknowledged as such
a child.
So the legitimate child must prove first his acknowledgement,
whether voluntary or involuntary, before he can claim any
inheritance from the estate of his putative parent.
Read: Uyguangco vs. CA, GR No.76873 (October 26, 1989)
19 SEPTEMBER 2016
By: Isay Abad
We took up Article 887 last meeting and in relation to that the
successional rights of an illegitimate child.
Again, in the case of Ilano vs. CA, it is not enough that the
illegitimate child has blood relations with the decedent; he has to
prove that there has been acknowledgment (either voluntary or
involuntary) before he can inherit. It is not the ties of blood that
allows him to inherit but the fact that he has been recognized.
I assigned to you the case of Uyguangco vs. CA.
UYGUANGCO vs. CA
G.R. No. 76873
October 26, 1989
We have Primary evidence and Secondary evidence to prove
filiation. Take note under the Family Code, when your proof
consists of secondary evidence, you can only use that during the
lifetime of the putative parent. Primary evidence survives the
death of the latter.
Here, there was no primary evidence (like the public record of
birth appearing in the civil registrar, admission of illegitimate
filiation in a public document or handwritten instrument). All he
had was secondary evidence. Therefore, even if he was truly the
illegitimate child of his father, but could not appropriately prove
the same under the laws, then he could not inherit.
ARTICLE 888. The legitime of legitimate children and
descendants consists of one-half of the hereditary estate of
the father and of the mother.
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (808a)
Remember: The legitime of legitimate children and descendants
is ½ of the net hereditary estate.
Example: If the estate is 1 Million with 4 legitimate children, the
legitime is 500 Thousand. The 500 Thousand will be divided by
4. Thus, each of the 4 legitimate children will receive 1.25 Million
as their legitime.
Do not forget the Rule on Proximity: the nearer relative excludes
those who are far. If there are children and grandchildren, the
grandchildren are excluded by the children, subject to the right of
representation.
ARTICLE 889. The legitime of legitimate parents or
ascendants consists of one-half of the hereditary estates of
their children and descendants.
The children or descendants may freely dispose of the
other half, subject to the rights of illegitimate children and of
the surviving spouse as hereinafter provided. (809a)
The legitimate parents or ascendants are called the Secondary
Compulsory heir, they do not concur with legitimate children.
They have the same share as the legitimate child which is ½ of
the net hereditary estate, but the parents or ascendants only
inherit in the absence of legitimate children and descendants.
They only inherit in default of legitimate children and
descendants.
ARTICLE 890. The legitime reserved for the legitimate
parents shall be divided between them equally; if one of the
parents should have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally between
both lines. If the ascendants should be of different degrees,
it shall pertain entirely to the ones nearest in degree of
either line. (810)
GM GF GM GF
Mother Father
Testator
A (children) B Case 5. Assuming the mother (M) predeceased the testator, how
C D E F G -
FIGURE 1
Refer to Figure 1 illustration for the sample cases:
Case 1. Assuming the estate of the testator is 2.4 Million. He
died and was survived by all the people found in Figure 1: From
the Grandmother (GM) and Grandfather (GF) of both maternal
and paternal sides down to CDEFG as his grandchildren.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Who are entitled to the estate and how will they divide in that
case?
- Answer: The testator’s children A and B are entitled to
the estate because the ascending line is excluded.
Under the law, the parents and grandparents are
excluded by the presence of the children and
grandchildren. But under the rule on proximity, the
grandchildren CDEFG are excluded by A and B
- The legitime is ½ of the estate = 1.2 Million. Since there
are 2 heirs (A & B), they will receive 600 Thousand
each.
Case 2. Assuming that A died ahead of the testator, how will we
divide the estate, and who will be entitled to the estate?
- Answer: B inherits as he is a child. Since A is dead, he
cannot inherit but he can be represented by his children
(C&D) by representation.
- Although there are now 3 persons who will inherit, the
estate will still be divided by 2. Even if C and D will
succeed by right of representation, the representatives
cannot inherit more than what the person represented
would have been entitled to inherit.
- Thus the legitimes are:
B = 600 T excluding his children
A = 600 T divided between C&D, so:
C= 300 T; D = 300 T
Case 3. What if both A and B died ahead of the testator? Who
will inherit and how do we divide?
- Answer: Still, the ascendants are excluded because
there are still grandchildren. The grandchildren always
inherit by right of representation.
- We divide the legitime of 1.2 Million by 2. The share of
A will go to C&D receiving 300 Thousand each. The
share of B will go to E,F,G receiving 200 Thousand
each.
Case 4. Assuming that there are no descendants and the only
survivors are the ascendants. How should we divide assuming
that all of the ascendants survived?
- Answer: Definitely, the ascendants inherit in default of
the descendants. We still get ½ of the net hereditary
estate which is 1.2 Million. Thus, both Mother (M) and
Father (F) gets 600 Thousand each.
will we distribute the estate in that case?
Answer: The entire 1.2 Million legitime will go the
father.
Take note: In the ascending line, there is no right of
representation. The right of representation always
goes down, it does not go up.
Case 6. Assuming both the parents M and F died, there are no
descendants and the only survivors are the grandparents both
from the maternal and paternal side. How do we distribute?
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
- Answer: The legitime is still 1.2 Million and it will be
divided into 2 for the maternal and paternal side.
So, each side will receive 600 Thousand. Meaning to
say, each grandparent will receive 300 Thousand.
Case 7. Assuming namatay pod si grandmother maternal side.
Ang survivors nalang sila grandfather maternal side and both
grandparents paternal side. How do we distribute?
- Answer: Still we divide the legitime into 2. Each side
will get 600 Thousand. But since the maternal
grandmother is dead, the maternal grandfather gets all
the 600 Thousand, while the grandparents of the
paternal side will each receive 300 Thousand.
Again, there is no right of representation in the ascending line, it
is only available in the descending line.
ARTICLE 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. (871)
Please remember this article – Reserva Troncal. This is the only
system of reservation which has remained under the New Civil
Code.
What is Reserva Troncal?
- Let us just simplify it first, remember the V-sign.
(We have an ascendant, we have a descendant and we have the
reservor or another ascendant.)
Origin (ascendant) Reservor (ascendant)
Prepositus
(descendant)
FIGURE 2
Example 1: The grandfather donated a land to his grandson. So
the grandson now owns the land by virtue of the donation, but
then he died without issue of his own or without children. The
only survivor he had is another ascendant which is his mother.
The mother now would inherit the property of his son which
originally came from the paternal grandfather.
Origin (ascendant) Reservor (ascendant)
Grand Father Paternal Mother
Son
Prepositus
(descendant)
Under reserva troncal, the mother now has the obligation to
reserve the property in favor of the relatives of his son
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
(descendant) within the 3rd degree and then coming from the line
of the origin, in this example, from the paternal line.
What is the purpose of Reserva Troncal?
- To see to it that the property does not stray from one
line of the family to the other.
In our example, the land came from the paternal side, and by
reason of an accident in life, the land now went into the maternal
side. So, the law says that it should be reserved in favor of the
relatives of the descendant belonging to the paternal line where
the property originated.
Remember: There can only be reserva when the property strays
from 1 line of the family to the other.
Example 2: There can be no reserva if ang naghatag sa property
is ang grandfather from the maternal side: gidonate niya sa
iyahang apo, namatay si apo, and then nainherit sa mama. Can
there be reserva?
- No, because there is no distinction of line. Ang origin is
from the maternal side, eventually naadto pod siya sa
mama o motherside gihapon. There has to be a
distinction.
Let us go back to Figure 2.
Parties in a reserva troncal:
1. The Origin
2. The Prepositus
3. The Reservor
4. The Reservees – relatives within the 3rd degree
The Origin should be an ascendant or a brother or sister. But
when we say brother or sister, it has to be a half-brother or a
half-sister for there to be a distinction in line.
Example 3: We have X, a full blood brother of D, nagdonate og
land to D. Then D died, the same property is inherited by
operation of law by his mother, can there be a distinction of
lines?
- None, because if X is his full brother, then X must be
the son of D’s mother as well. So, walay distinction. To
create reserve, X should be the half-brother which
basically comes from the other line, here, X should
come from the paternal line.
Remember: Even if we say half-brother, the relationship in
reserva troncal should be Legitimate. It cannot apply to an
illegitimate half. How is that?
- Pwede nagmarry ang parents, namatay ang papa, then
ang mama nag-asawa usab.
Origin (ascendant) Reservor (ascendant)
Brother Paternal Mother
Half- brother
Prepositus
(descendant)
Now, the transfer from the origin should be by Gratuitous title.
What do we mean by that?
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
CHUA vs. CFI
G.R. No. L-29901
August 31, 1977
In this case, there was an obligation imposed upon the heir to
pay Standard oil the amount of P3971.20. Thus the question of
whether or not it was gratuitous arose, because if it is really
gratuitous then there will be no obligation to pay.
In this case, the obligation was only a charge by the court and
not by the decedent. So, it can be by virtue of:
1. Testamentary Succession such that the ascendant
gave the property by will to the descendant.
2. It can also be by virtue of Legal Succession
3. Donation.
Even if there was a charge imposed, but as long as the charge
did not come from the donor or decedent, then the transfer is
considered as gratuitous.
In reserva troncal, the same property acquired through gratuitous
title by the descendant is reserved by him as the descendant
Prepositus. And then he died without issue. Because if he died
with issue, then the property cannot be inherited by the
ascendants as they are excluded by the presence of the
descendants. When the Prepositus died, the very same property
was transferred by Operation of law to another ascendant
coming from a different line from the origin.
Why is the defendant Prepositus called the Arbiter of the
Reserva?
- Because in his hands really depend on whether or not
there can be reserva troncal.
Example, even if he receives such property gratuitously
from an ascendant but such property was disposed by
him pala by selling or destroying the property. Then
there can no more be reserva. Or maybe he retained
the property but then he had children, thus there can be
no reserva.
So it really depends upon the Prepositus.
Remember: In reserva troncal, the property transferred by
Operation of Law should be the very same property which was
received from the ascendant Origin.
Example: The descendant received a lotto ticket from his
grandfather paternal side. And then the lotto ticket won 10
Million, and then he died. So the property is now transferred by
operation of law to his mother, is there a need for reservation? Is
there reserve troncal?
- No, because he transferred to his mother a different
property, not the very same property which he received
from the origin. He received a lotto ticket and not the
money.
Let us go to the transfer from the descendant Prepositus to
another ascendant – the Reservor. The law says that the
transfer shall be by Operation of Law.
Operation of law is present in legal succession.
How about in wills or in Testamentary succession? The son left a
will leaving all his properties to his mother and then he died.
Then the mother inherited the property. Is there transfer by
operation of law?
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
- Yes, there can still be transfer by operation of law,
remember that because a lot of students forget that.
Naa gihapon by operation of law with respect to the
legitime.
So, even if there is a will and the mother inherited the property
from the son, even if that is her legitime, the mother has the
obligation to reserve that property in favour of the Reservees.
As we have discussed before:
General Rule: There can be no burdens, encumbrances,
substitution or charges that may be imposed upon the legitime.
Exception: Concept of Reserva Troncal.
- Even if that is her legitime, there is a burden upon that
legitime. There is an expectancy that upon her death as
a Reservor, the property will not go to her estate but
will go to the Reservees.
Who are the Reservees?
- They are the relatives of the descendant within the 3rd
degree from the line of the origin. We count 3 degrees
from the descendant Prepositus. When the reservor
dies and there are still reservees who survive, then the
property will now go to the reservees.
With respect to the Reservor, does she own the property subject
of the reserva? Can she sell the property? How about the
Reservees, while the reservor is still alive, can they sell the
property? Do they have any right over the property? What
happened in the case of Sienes vs. Esparcia (not assigned)?
SIENES vs. ESPARCIA
1 SCRA 750
This case involves a double sale. The reservor sold the property
to A. The reservees also, while the reservor was still alive, sold
the property subject of the reserva to B.
ISSUE: Is the sale to A valid? Is the sale to B valid? Who has a
better right between A and B?
RULING: The sale made by the reservor to A is valid but subject
to a resolutory condition. What are the rights of the Reservor?
• The reservor is the owner of the property, so she can
sell, use, convey or dispose the property as an attribute
of her ownership.
• However, the ownership of the reservor is subject to a
Resolutory condition. She has ownership but her
ownership is extinguished by the fulfilment of the
resolutory condition which are the:
1. Death of the Reservor and
2. Survival of the Reservees.
Upon her death, the property burdened by the reserva will not go
to the estate of the reservor but it will go to the reservees.
How about the sale made by the Reservees?
• The sale by the reservees of the property during the
lifetime of the reservor is also valid. That is in the
nature of the sale of a future property under Article
1461 of the Civil Code.
Article 1461. Things having a potential existence may be the
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 SECOND EXAM TRANSCRIPT IN
WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
object of a contract of sale. Xxx So you remember the concept of
emptio rae speratae (sale of future property) as distinguished
from emptio spei (sale of hope or expectancy).
Here it is valid but subject to the condition that the thing will exist.
The sale made by the Reservees is subject to a Suspensive
Condition, where, in the meantime it is not yet valid but if the
condition is fulfilled, then the sale now becomes effective and
valid. What is that suspensive condition?
1. Death of the Reservor and
2. Survival of the Reservees.
So you see, the Resolutory condition on the part of the reservor
is the Suspensive Condition on the part of the reservees.
The 2 sales are actually valid. In this case, the sale to A remains
valid because the resolutory condition is not fulfilled.
Now, with respect to the properties subject of the reserva, if you
are the reservee, you will be scared that the reservor will sell the
property. What are the rights of the reservee to assure that the
reserva is protected?
• For real property, the fact that it is subject to a reserva
should be annotated to the title. It will now serve as
warning to 3rd persons that will be dealing with the land
that it is subject to a reserva. Remember in your land
registration law, encumbrances or liens which do not
appear to the title are not binding to third persons
unless they have actual knowledge of the same. So, if
you are a reserve, the fact of the reserva should be
annotated and it will serve as your protection.
• You can also compel the reservor to furnish a bond or
security specially if it is a Personal property.
Let us go to the Reservees.
They are the 3rd degree relatives of the descendant prepositus.
Who could these relatives be?
For the Direct relativess:
Child ----- Parent ------ Grand Parents ------ Great GP
1st 2nd 3rd
For the Collateral Relatives:
Brothers/ Sisters - 2 degrees
Uncles/ aunts or nephews/nieces – 3 degreees
So all of the above stated belong to the relatives within the 3rd
degree relative of the descendant prepositus. What if all of them
survive, who could be entitled to the properties subject of the
reserva? Is it all of them? Do they divide the property in equal
shares?
- In so far as Reserva Troncal is concerned, it merely
determines which class of heirs would be entitled to the
property. But between and among these heirs, we
follow the Rule on Intestate Succession.
Why Intestate succession?
• The reservees here are the heirs of the
descendant prepositus (and not the heirs of the
reservor) and they inherit in the absence of a will
through intestate succession.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Rule in Intestate Succession
1. Those who are in the direct line are preferred over
those in the collateral line. So, the grandparents are
preferred over the brothers and sisters.
2. If they are both in the same direct line or both in the
same collateral line, then those who are in the
Descending line are favoured over those who are in the
ascending line.
3. We also follow the rule on Proximity.
Example 1: If for example they are both in the collateral line, we
have the brothers and sisters and the nephews and nieces, the
one preferred would be the brothers and sisters for they are
nearer.
Example 2: Between uncles/aunts and nephews/nieces who are
both in the collateral line, the ones preferred are those from the
Descending line and not the ascending line, so we choose the
nephews and nieces.
So those are the rules in Intestate succession which is applicable
in so far as the reservees are concerned. We have the case of
Mendoza vs. De Los Santos.
MENDOZA vs. DELOS SANTOS
G.R. No 176422
March 20, 2013
This case disputes 3 parcels of land under the name of Julia
Delos Santos (respondent). According to the petitioners, the
subject properties were part of the estate of their grandparent,
Placido. When Placido died, Ezekiel inherited the property by
legal succession. When Ezekiel died, Leonora and Julia inherited
from him. The only descendant of Ezekiel was Gregoria who
inherited the disputed property from Ezekiel. From Gregoria it
was then transferred to Julia (sister of her mother Leonora who
predeceased them).
The issue here was whether there is Reserva Troncal?
Let us look at the requisites of Article 891:
First, the ascendant transfers property by gratuitous title to the
descendant, which is present in this case.
Second, the descendant transfers property to another ascendant
by Operation of Law, which is not present in this case.
- There was no inheritance by operation of law since it
should be inherited through a direct line and not
collateral. The law requires a direct ascendant, Julia
here is Gregoria’s collateral relative.
Assuming for the sake of argument na ascendant si Julia, will
there be Reserva troncal such that the petitioners will be
entitled?
- Still no because the petitioners here belong to the 4th
degree line of relatives. The law requires up to the 3rd
degree only for one to be a reservee.
So, there is no Reserva. The requisite that the property be
transferred to an ascendant from a descendant was not present.
And then second, the petitioners are not reservees for they are
not within the 3rd degree.
With respect to the reservees, can we apply the right of
representation?
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
Example: Some of the reservees are brothers and sisters where
some of them are already dead and they are survived by their
own children, who, in relation to the descendant prepositus are
the nephews and nieces.
- Actually, the right of representation applies to a
reserva, but the representatives themselves must still
be within the 3rd degree. It cannot be that by the right of
representation the 4th degree will be elevated to the 3rd
degree.
- That is the same in legal succession, because in legal
succession, the right of representation in so far as the
direct line is concerned, walay limit. Pero pag muingon
ka og reserva, it cannot also apply because the
descendant here in reserva kay dapat walay issue.
So the legal succession representation in the collateral
line, the right of representation is up to the nephews
and nieces lang pod who are also up to the 3rd degree.
Now let us proceed to Computations.
As we said in reserva, the property which is received from the
origin by gratuitous title and transferred to another ascendant by
operation of law is subject to reserva, it must be reserved.
I - In Intestate succession:
For example, the descendant received property from his
grandfather paternal worth 1 Million, and then the same property
when the descendant died was inherited by legal succession by
his mother, so what is the value of the reserva? It is 1 Million.
Using the same scenario, the grandson, who received 1 Million,
on his own and during his lifetime also acquired properties
through his industry, he acquired 2 Million. So when he died, his
estate is worth 3 Million. So the mother by legal succession,
inherited 3 Million, how much is the value of the reserva?
- 1 Million lang, walay labot ang 2 Million because only
the 1 Million is the very same property received by the
descendant in order to comply with the requisite that
the property is that which came from the origin.
II - Testamentary Succession:
When there is a will, we have to consider 2 Theories:
1. Reserva Maxima – the value of the reserva is as much
as can be covered in the legitime.
2. Reserva Minima – it assumes that all properties
received from the descendant prepositus comprises ½
of it as legitime and ½ as the free portion.
How do we illustrate?
Case 1. The 1 Million is the only property owned by the
descendant prepositus during his lifetime and then he left a will
giving to his mother everything. So, out of the 1 Million, how
much is the legitime of the mother?
Reserva Maxima – 500 Thousand
- 500T legitime is covered by the reserva for that is the
only part which is inherited by operation of law.
Reserva Minima – 500 Thousand.
- Out of the 1M, ½ of that is Free portion and the other
half is the legitime. Therefore, the reserva here is also
500 Thousand.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Case 2. Assuming the descendant acquired properties on his
own worth 500T. When he died, his estate is worth 1.5 Million.
He left a will giving to his mother all his properties. Thus:
Legitime = 750T
Free Portion = 750T
Reserva Maxima – 750 Thousand
- Ang worth sa property that came from the origin is 1 M,
pero ang legitime is only 750T. Since ang value under
this theory is “as much as can be covered from the
legitime” so 750T lang pod.
Reserva Minima – 500 Thousand
- This presumes that for every property received, ½ of
that is legitime and ½ of that is free portion. So duha ka
properties dire diba: 1 M and the 500T.
- So out of the 750T na legitime, ang 500T dira came
from the reservable property while the 250T came from
the property acquired.
- So in that sense, the reserve is only 500T which is ½ of
the 1 Million received from the original and not the
whole 750T legitime which includes his acquired
properties.
Case 3. Assuming during his lifetime, the descendant acquired
properties worth 2 Million. The grandfather paternal donated
properties to the descendant worth 1 Million. He executed a will,
died and left all the properties to his mother worth 3 Million.
Now we determine the value of the reserva. If the value of the
estate is 3 Million, the legitime of the mother is 1.5 Million.
Reserva Maxima – 1 Million
- Under Reserva Maxima, the reserva is as much as can be
covered in the legitime, the legitime is 1.5 M. Does it follow that
the reserva is also 1.5 Million? No, the value of the reserva
actually is only 1 Million, even if the legitime is 1.5 M. It cannot go
beyond the value of the property received from the origin.
- Thus, the reserve is as much as can be covered in the legitime
but only up to the value of the property received from the origin.
Reserva Minima – 500 Thousand
- Since 1 Million man ang gikan sa origin, it is 500T.
- Always ½ sa nadawat gikan sa origin ang value under sa
Reserva Minima.
Now, which theory should we follow?
- According to some authorities, the Reserva Maxima
should be followed because it is more in keeping with
the concept of the Reserva which is as much as can be
covered in the legitime.
- But according also to some authorities, it should be
Reserva Minima because it is more equitable which is
only ½ of the property received from the origin,
considering na as much as possible we do not want
any burden sa legitime.
So the prevailing view actually is Reserva Minima for being more
in keeping with equity and justice.
Extinguishment of the Reserva
1. By the Death of the Reservor.
- Because by then, the properties would go to the
reservees, no more need of the reserva.
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
2. Upon the death of all the would be reservees ahead
of the reservoir.
- In this case, no more need for the reservor to reserve
because the persons entitled are no longer present.
3. Upon the loss of the property which is subject of
the reserve without the fault of the reservor.
- Maybe by fortuitous event, no more obligation to
preserve because the property is now gone.
4. Prescription.
- Here, if for example all the requisites are present
(adverse possession, peaceful, public and for the
period prescribed by law). It should be by extraordinary
prescription where 30 years for real property and 8
years for personal property.
- And it is required that before prescription should run,
the reservoir repudiates the reserva.
- The repudiation should be made known to the
reservees.
5. Upon registration under the Torrens System as free
from the reserva.
- If for example, the property was inherited by the
reservor, and it is now the obligation of the reservor to
register it and annotate the fact of the reserva or the
reservees can also compel the reservor to do this.
Assuming the reservees did not do anything and the
property was transferred in the name of the reservor
without the annotation and then a 3rd person acquires
the property as an innocent purchaser for value. Here,
you cannot go after the innocent purchaser for value
na.
- Even if the property is subject to reserva, it is now
extinguished by the registration as free from the
reserva.
- Although again, the reservees can go against the
persons who are in bad faith like the reservor.
6. Upon renunciation or waiver by all the reservees
after the death of the Reservor.
- Why after the death? Because it is now when there is
transfer to them. Prior to the death of the reservor, they
cannot validly renounce for what they have is just an
expectancy.
Delayed Intestacy Theory
- It is actually the concept of Reserva.
- It says, “when the resolutory condition of the reserve is
fulfilled, the properties are distributed to the reservees
as if they are inheriting from the prepositus at the time
of the fulfilment of the condition. Since there is no will,
then the reservees inherit by virtue of intestate
succession, the decedent being the prepositus, hence
the name, Delayed Intestacy.”
- So this is the inheritance by the reservees, it is
delayed because supposedly the reservees are the
heirs of the descendant prepositus, but upon the latter’s
death, they cannot yet get the property because there
is the ascendant who has a better right over them who
will hold the property in the meantime.
But if the resolutory condition is fulfilled, they inherit the
property in a delayed manner and inherits the same
through intestate succession.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
22 SEPTEMBER 2016
By: Katherina Gumboc
Ma’am Espejo: You write down the legitime of the compulsory
heirs and you have to memorize them. You just don’t familiarize
them because when you compute, it has to be the right amount.
For easier memorization, we start with the legitime of the
surviving spouse. So surviving spouse alone, recurring with the
children, legitimate or illegitimate children, surviving parents.
ARTICLE 892. If only one legitimate child or descendant of
the deceased survives, the widow or widower shall be
entitled to one-fourth of the hereditary estate. In case of a
legal separation, the surviving spouse may inherit if it was
the deceased who had given cause for the same.
If there are two or more legitimate children or
descendants, the surviving spouse shall be entitled to a
portion equal to the legitime of each of the legitimate
children or descendants.
In both cases, the legitime of the surviving spouse shall be
taken from the portion that can be freely disposed of by the
testator. (834a)
Let’s start with the legitime of the spouse surviving with one
legitimate child.
Legitimate children are always entitled to ½ of the net hereditary
estate. For example, the estate is P1M, one-half of that is the
legitime of the legitimate children. It is always fixed although
each child’s share may be varied because the ½ will be divided
among the legitimate children. But if you only have one legitime
child, that child gets the half and the surviving spouse will get ¼
to be taken from free portion.
Going back to our example, if the estate is P1M, one-half of that
is P500k for the legitimate child. One-fourth is P250k to be given
to the surviving spouse from the free portion. In this scenario we
have free portion of ¼ which is P250k. This is what we called
free disposal. So that is how we divide.
Now if there are two or more legitimate children, then again, the
legitimate children are entitled to ½. They will just divide among
themselves the ½ portion. If there are four, divide the P500k by
four and each child will get P125k. Furthermore, the law says
that the surviving spouse is entitled to the same share as one
legitimate child. Hence, the surviving spouse will also get P125k.
In this scenario, you may notice na mas dako ang sa free portion
diba? So kung mas daghan ang legitimate children, the share of
the surviving spouse is the same with that of a legitimate child.
So P500k ang free portion less the share of the surviving spouse
which is P125k, P375k ang free portion in this scenario.
Now, with respect to legal separation, Article 892 says if the
surviving spouse is the guilty spouse and there has been a
decree of legal separation automatically, by operation of law, the
guilty spouse is disqualified to inherit from the deceased spouse.
The surviving spouse is totally excluded from the estate. That is
the consequence of legal separation.
If it is the testator who was the guilty spouse, the surviving
spouse may still inherit. But if it is the testator who is the innocent
spouse, then the surviving spouse forfeits the legitime,
disqualified to inherit. That is, kung nay decree. Kung pending
lang ang case, walay pronouncement sa court, qualified gihapon
(2015 transcript).
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WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
ARTICLE 893. If the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse shall have a right to one-fourth of the
hereditary estate.
This fourth shall be taken from the free portion of the
estate. (836a)
The surviving spouse who concur with the parents, for example
there are no legitimate children and descendants, so concurring
sya with the legitimate ascendants, the share of the:
3. Surviving spouse is ¼
4. The share of the legitimate ascendants is ½ of the net
hereditary estate
ARTICLE 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. (n)
The surviving spouse concurred with illegitimate children, the
distribution of share is
1. 1/3 to the spouse and
2. 1/3 to the illegitimate children and
3. 1/3 to the free portion
This is the case where the free portion is 1/3.
ARTICLE 896. Illegitimate children who may survive with
legitimate parents or ascendants of the deceased shall be
entitled to one-fourth of the hereditary estate to be taken
from the portion at the free disposal of the testator. (841a)
The illegitimate children surviving with legitimate parents or
ascendants.
1. To the illegitimate children ¼,
2. To the parents or ascendants always ½
DEL ROSARION vs. CONANAN
G.R. No. L-37903
March 30, 1977
The survivors in this case were the surviving wife, the legally
adopted child and the mother of the deceased.
ISSUE: W/N the legally adopted child excludes in the inheritance
the parent or ascendant of the deceased.
It is an issue because there are conflicting theories about what
should be the inheritance of the legally adopted child of the
deceased. The law says that the right of the legally adopted child
shall be the same as that of the legitimate child.
If you analyze the rights of the adopted child, it is the same as
those of the legitimate children. And under the law, the presence
of the legitimate child will exclude the legitimate parents and
ascendants. If we follow this rule, where the scenario is the
surviving heirs were the spouse, the legally adopted child and the
parent, then it can be said that the legally adopted child excludes
the parents.
But in this case, the SC ruled that the legally adopted child does
not exclude the ascendant because it is not the intention of the
law that the ascendants be excluded by the legally adopted child
and that it is only by legal fiction that the legally adopted child
has a relation with the deceased. The adopted child is only
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
bound by fiction of law with the adopter whereas the parents are
bound by blood relationship with the deceased. In this case, we
do not exclude the legitimate parents even if there is an adopted
child. So how do we divide the estate in that case? The court
applied Article 1000.
From the FT: WE opine that the governing provision is the
hereinafter quoted article 343 of the NCC, in relation to Articles
893 and 1000 of said law. It is most unfair to accord more
successional rights to the adopted, who is only related artificially
by fiction of law to the deceased, than those who are naturally
related to him by blood in the direct ascending line.
The applicability of Article 343 does not exclude the surviving
parent of the deceased adopter, not only because a contrary
view would defeat the intent of the framers of the law, but also
because in intestate succession, where legitimate parents or
ascendants concur with the surviving spouse of the deceased,
the latter does not necessarily exclude the former from the
inheritance. This is affirmed by Article 893 of the NCC.
Article 343 does not require that the concurring heirs should be
the adopted child and the legitimate parents or ascendants only.
The language of the law is clear, and a contrary view cannot be
presumed. Under Article 343, an adopted child surviving with
legitimate parents of the deceased adopter has the same
successional rights as an acknowledged natural child, which is
comprehended in the term "illegitimate children". Consequently,
the respective shares of the surviving spouse, ascendant and
adopted child should be determined by Article 1000 of the NCC.
The same scenario where there is a surviving spouse, legitimate
parents or ascendants and illegitimate children. So the share of
the adopted child is the same with the total of the illegitimate
child. So wala gi exclude ang parents naa gihapon ang parents.
Gigamay lang ang share sa adopted child so the same as that of
an illegitimate child.
Will this ruling apply as of the present?
There has been no change in the provision with respect to the
right of an adopted child under the CC, the FC and under the
Domestic Adoption Act. They still have that provision stating that
“A legally adopted child has the same right as a legitimate child.”
So by analogy we can still apply that ruling. There is still no new
ruling or reversed ruling so we can still use the Del Rosario vs.
Conanan where we are confronted with the same scenario that
the surviving heirs are the spouse, the legitimate parents or
ascendants and the legally adopted child. Unless, of course, the
decision will be reversed. You know the decision of the SC is not
that consistent.
ARTICLE 899. When the widow or widower survives with
legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-
eighth of the hereditary estate of the deceased which must
be taken from the free portion, and the illegitimate children
shall be entitled to one-fourth of the estate which shall be
taken also from the disposable portion. The testator may
freely dispose of the remaining one-eighth of the estate. (n)
The survivors are the spouse, legitimate parents or ascendants
and illegitimate children.
1. The parents, again, always ½
2. To the illegitimate children ¼
3. To the surviving spouse 1/8
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
So that is the division. If you noticed, the share of the spouse
here is smaller if there are no legitimate children. Because if
there are legitimate children of course the parents will be
excluded and the ½ will go to the legitimate children and the
spouse will get ¼ if there is only one legitimate child or the same
share as one legitimate child if there are two or pwede pa
mugamay if there four or more so depende. But if there are
illegitimate children, 1/8 so mas gamay. So here, it seems that
the law punishes the surviving spouse for not having legitimate
children with the deceased spouse. One of the unholy provisions
of the CC.
ARTICLE 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. (837a)
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. (n)
Here, the only survivor is the spouse. So take note of the legitime
of the spouse. As a general rule, if the spouse is the only
survivor, the legitime is ½ of the net hereditary estate. But the
law says, the exception, if the deceased died within three months
from the celebration of the marriage and it was celebrated in
articulo mortis, it must be the testator who is in danger of death
at the time of the marriage, and within three months of the
celebration of the marriage, he died, so here, the legitime of the
surviving spouse is reduced to 1/3. This is because the law has
the presumption that maybe the spouse married the testator
because of an expectation to receive something from the estate.
So kana man diay imong tuyo, 1/3 nalang ka.
Exception to the exception, even if the marriage was celebrated
in articulo mortis and the testator died within three months from
the celebration thereof, the legitime is still ½ if they have been
living together as husband and wife for more than 5 years before
the marriage. So here, it is clearly not because of the expectation
of receiving something but because love jud niya. So that is the
presumption of the law, it was really for love.
ARTICLE 902. The rights of illegitimate children set forth in
the preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate. (843a)
The article talks about the right of the illegitimate children. So it is
not a question that illegitimate children have successional rights
from their illegitimate parent.
For example, si testator, he died and he was survived by A who
is an illegitimate child. So A is entitled to inherit under the law.
But then, it depends kung kinsa ang kauban sa illegitimate child
na mag inherit. Those heirs na mag vary ang legitimes they are
what we called variable legitimes while katong fixed by law kay
fixed legitimes, dili jud mag change ang legitimes. Like for
example sa legitimate children, ½ and sa parents or ascendants
lkay ½.
For example, the testator had an illegitimate child A. A also has
children X and Y. X is illegitimate while Y is legitimate. And then
A died ahead of the testator. And nabilin kay A’s children X and Y
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
and A’s father the testator. And then the testator died. Who can
inherit? Can X and Y represent A who was an illegitimate child?
The law says, his right are transmitted upon his death to his
descendants, whether legitimate or illegitimate children.
Therefore, both X, the illegitimate child, and Y, the legitimate
child, can represent A who was an illegitimate child of the
testator.
Remember this article because we will later on relate this with
Article 992.
So again, if you are an illegitimate child, you can be represented
by your descendants, whether your descendants are legitimate
or illegitimate.
ARTICLE 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate
children, is 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 of the illegitimate child, the legitime of the parents is
one-fourth of the hereditary estate of the child, and that of
the surviving spouse also one-fourth of the estate. (n)
In this article, we have different scenarios. Legitimate children
surviving with illegitimate children. How do we distribute the
estate again? To the legitimate parents ½ while to the illegitimate
children ¼. That’s the sharing.
What if the survivors are illegitimate parents and illegitimate
children? Dili uso ang kasal sa ilang family. Si testator illegitimate
child siya kay iyang parents wala nagpakasal. And then
nanganak pud sya kay illegitimate gihapon kay wala pud sya
nagpakasal gihapon. Then he died. His survivors are his
illegitimate parents and his illegitimate child. How do we divide
the estate? How much is the share of the illegitimate parents?
Under Article 903, none. Illegitimate parents are excluded by
illegitimate children. It is just like legitimate parents are excluded
by legitimate children. But if the parents are legitimate, they are
not excluded by the illegitimate children.
If surviving spouse and illegitimate parents are the survivors, the
law says ¼ of the hereditary estate for each.
ARTICLE 904. The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly specified
by law.
Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever. (813a)
GR: The compulsory heirs cannot be deprived of their legitimes
Again, the legitimes are reserved by law to the compulsory heirs.
So, as a general rule, the compulsory heirs cannot be deprived of
their legitimes. That is why under the NCC, we have several
safeguards with respect to the legitime.
For example, the testator excluded one compulsory heir, his son
in the will. He did not give anything to the son in the will and he
did not give anything during his lifetime. Everything was disposed
of. What is the consequence of that omission?
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WILLS AND SUCCESSION
Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
Diba we have discussed under Article 854 that it results to
preterition. So here the institution will be annulled and the estate
shall be distributed by legal succession. So we give the legitime
of the omitted compulsory heir.
For example, the testator excluded his son from the estate. Dili
nako gusto tagaan akong anak kay dili ko ganahan sa iyang
asawa. Diba uso mana sa teleserye? That is not a ground to
exclude the compulsory heir. This is what we call disinheritance.
In the case of disinheritance, there are enumerated grounds
which are recognized by law. If you disinherit a person based on
a ground that is not provided for under the law, that is not a valid
disinheritance. So here the invalid disinherited heir can still
receive his legitime. That’s another safeguard.
Or maybe during the lifetime of the testator, he already disposed
of his entire property. He already donated everything such that
upon his death, nothing is left for his compulsory heirs. Now we
have the concept of collation.
All those donations made by the testator during his lifetime,
whether made to strangers or made to compulsory heirs, the
properties shall be brought back or added back to the value of
estate. That would be the basis of the value of the legitime. If the
legitime is impaired by those donations, then the donees even if
those donations are inter vivos, which means it was transferred
during the lifetime of the testator, but still because of the
impairment of the legitimes, the donees will have to return to the
estate that portion so as to complete the legitime of the
compulsory heirs.
With respect to legitimate children, diba the share of the
illegitimate children is ½ of the share of one legitimate child. So
for example P1M ang estate and there are four legitimate
children and one illegitimate child. How do we distribute?
P1M divided by two equals P500k. There are four legitimate
children, so they will divide the P500k so each will get P125k.
The illegitimate child will get P62,500 since he is entitle to ½ of
the share of a legitimate child.
What if there are ten illegitimate children? If we follow the
computation, P62,500 times 10 is P625k. Asa man ka manguha
ana nga ang nabilin naman lang gani sa free portion kay P500k.
You cannot get that also from the shares of the legitimate
children. What will happen? We just divide the remaining part of
the estate after giving the legitime of the legitimate children
equally among all the legitimate children. So in that example,
P1M less the legitime of the legitimate children is P500k and
P500k free portion which shall be divided equally among all the
illegitimate children. So mas tagaan nato priority and sa
legitimate children.
The same thing if there is a surviving spouse. We satisfy first the
share of the surviving spouse. In that example, P1M. The
legitime of the legitimate children is P500k and since there are
four divide it by four so each will get P125k. The spouse will also
get the same share as one of the legitimate child. So again, the
spouse will get P125k taken from the free portion. The remaining
P375k shall be divided equally among all the illegitimate children.
If there are 10 illegitimate children, it shall be divided equally
among them.
So again, the testator cannot impair the legitime of the legitimate
children and the surviving spouse by having several illegitimate
children. So that is another safeguard. That is Article 902. You
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
cannot deprive the compulsory heirs of their legitime except in
cases expressly specified by law. We will go there if we will
discuss inheritance.
You cannot impose any burden, encumbrance, condition, or
substitution of any kind whatsoever upon the legitime. Because if
you are allowed to do so, you can easily circumvent the law on
legitimes by imposing very difficult burdens or encumbrances.
And as we discussed before, there are only two possible burdens
which can be imposed upon the legitimes. One is the concept of
reserve troncal and the other one is prohibition to partition. The
testator can actually prohibit the partition of the estate including
the legitime but for a period not exceeding 20 years. So these
are the only two possible burdens that may be imposed under
the NCC insofar as the legitime is concerned.
ARTICLE 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. (816)
Renunciation or compromise regarding a future legitime.
Meaning here the testator is still alive and the compulsory heir
here renounced the inheritance.
For example, naa syay estate na P1M and he has four children.
While the testator was still alive one child already said “I don’t
want to get anything from the estate of our father. I renounce
whatever legitime I will have.” That renunciation is not valid
because he merely has inchoate right. How can you renounce
something that you actually do not have in the first place? Or
maybe the child says, “Just give me P100k today and upon the
death of our father, I will no longer get anything. I renounce
whatever legitime I might have.” Then the testator died and the
child is supposedly entitle to P125k as legitime. What happens to
the waiver or renunciation? Again, it is not valid but the amount
that he received will be collated or considered as an advance of
his legitime. So if he already received P100k and his proper
legitime is P125k, then he shall be given an additional of P25k.
That is the meaning of “they must bring to collation whatever they
may have received by virtue of the renunciation or compromise.”
How about after the death of the testator? Of course there is no
prohibition as to waiver or renunciation. You can waive or
renounce your inheritance. What is prohibited a waiver or
renunciation of future inheritance during the lifetime of the
testator.
ARTICLE 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him may
demand that the same be fully satisfied. (815)
Here in Article 906, this is what we call again as omission on the
legitime. The testator left him something but less than his
legitime. For example, during his lifetime, the testator gave a
donation worth P50k to A his son. And then he made a will giving
all his properties only to his three other children B, C and D. A
was not included in the will but he was given a donation of P50k.
The testator mentioned in his will that “everything” on his estate
will be given to B, C and D only. So here, is there preterition of A
assuming the entire estate is disposed of?
There is no preterition because A was given something during
the testator’s lifetime. A was given a donation, which will be
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
considered as an advance to his legitime but he has been given
less than his legitime.
Assuming that the entire estate is worth P950k. how do we
compute the legitime? P950k plus the value of the donation
made during the lifetime. So P950k plus P50k so we have an
estate of P1M. Divide it by two to get the legitime so P500. If
there are four children so each is entitle to P125k as legitime.
Now, A was already given P50k so he is entitled to the
completion of his legitime. At the time of the death of the testator,
he can still demand for his P75k to complete his legitime of
P125k. So that is the completion of legitime.
ARTICLE 907. Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be
inofficious or excessive. (817)
Here, we have the concept of inofficious or excessive. For
example, the estate is P1M and the testator executed a last will
and testament. “I hereby give to my bestfriend Y P600k and the
balance will be equally divided among my four children A, B, C
and D.” When you compute, the legitime is P500k since they are
entitled to ½ of the estate. But he gave P600k as a legacy to Y,
his bestfriend. That legacy is inofficious because it impairs the
legitime. He cannot give the entire P600k or the legacy to Y. It
has to be reduced. So give to the legitime children their legitime
then in the free portion, you can charge the legacy. You can only
give P500k to Y. You cannot just give the entire P600k to Y. It
has to be reduced.
Another example, during his lifetime, the testator donated to his
bestfriend Y P600k. Then the testator died. At the time of his
death, the remaining estate is only P400k. How do we compute
the estate? P400k then add back the P600k donated so P1M
then you compute the legitime. Again, ½ is the legitime of the
legitimate children and the other half is the free portion. And
because that donation made to the friend is charged in the free
portion, it cannot be covered by the free portion because it is only
P500k. So katong friend, ibalik na niya ang P100k para ma
complete ang legitime kay diba ang remaing estate kay P400k.
So in order for the legitime to be completed, the friend shall
return the P100k to the estate so that the estate will now have
P500 to complete the legitime of the legitimate children. That is
the meaning of Article 907.
ARTICLE 908. To determine the legitime, the value of the
property left at the death of the testator shall be considered,
deducting all debts and charges, which shall not include
those imposed in the will.
To the net value of the hereditary estate, shall be added
the value of all donations by the testator that are subject to
collation, at the time he made them. (818a)
We already have explained this. How do we compute the net
hereditary estate? Again, value of the hereditary estate at the
time of the death and then from that you deduct or less debts and
charges. When you say debts or charges katong mga utang sa
testator to his creditors, katong mga expenses such as funeral
expenses, medical expenses katong mga expenses na kelangan
bayaran, I deduct. You arrive at the total. And from that you add
back all the donations he made during his lifetime. There we
arrive at the net hereditary estate.
That net hereditary estate is the basis for the computation of the
legitime. Diha i-base ang ½, ¼, 1/3 diha na sya. So again, you
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
still have to be careful because even if you memorized the
legitimes if your net hereditary estate is not correct then your
answer will not also be correct.
We will discuss more on the computation when we go to
collation.
ARTICLE 909. Donations given to children shall be charged
to their legitime.
Donations made to strangers shall be charged to that
part of the estate of which the testator could have disposed
by his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code. (819a)
So again, donations made to compulsory heirs shall be charged
to their legitimes. Meaning, considered as advances to their
legitimes. Donations made to strangers, when you say strangers,
he may be the bestfriend of the testator basta dili sya compulsory
heir. Not literally stranger na wala kaila si testator. So it shall be
charged to the free portion.
So that will be considered as an advance to the legitime of the
compulsory heir to whom the donation was given. Katong
example nako na si son diba he received a donation na P50k
during the testator’s lifetime and at the time of his death, the
remaining estate is P950k. So P950k plus P50k equals P1M and
there are 4 legitimate children so each is entitled to a legitime of
P125k. What will happen to the donation made to the son? It will
be considered as an advance to his legitime. Therefore, tagaan
lang siya dugang nga P75k.
Q: How about donations made to strangers?
The same example naa lang dugang. During the lifetime of the
testator, he made two donations. One to his son A and the other
to his bestfriend Y both amounting to P50k. At the time of his
death, the estate is already P900k. Assuming there are no debts,
the remaining estate of P900k plus P50k donation to the son plus
P50k given to the bestfriend we have an estate of P1M. Again,
there are four legitimate children so out of P1M, the legitime is
P500k and each son is entitled to P125k each and since A was
already given P50k which is considered as an advance to his
legitime, he is only entitled to an additional of P75k.
How about the donation given to Y? That donation will be
charged from the free portion. So from the example, at the time
of death, naa pay free portion na P500k. So i-charge nato didto
and free portion given to Y so kaya pa because the free portion is
comprised of P500k and the donation given to Y is only P50k
there shall remain an amount of P450k. Therefore, the donation
given to Y shall be respected.
Now assuming given to the bestfriend was P700k and the free
portion is only P500k. In this case, the donation will be reduced.
The donee bestfriend has to return P200k to the estate because
the donation is inofficious. How do you know if the donation is
inofficious? If it exceeds the free portion. How do you determine
that? You have to first determine all the legitimes and then ang
free portion then tan-awon nimo ang donation. Can the donation
be covered by the free portion? If it can’t be covered, it is
inofficious. That’s the meaning of inofficious.
ARTICLE 910. Donations which an illegitimate child may
have received during the lifetime of his father or mother,
shall be charged to his legitime.
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner prescribed
by this Code. (847a)
The same concept. Whatever donation made to an illegitimate
child shall be considered as an advance to his legitime. If that
donation is excessive, if that donation is inofficious, if you will
respect that donation it will impair the legitimes of the other
compulsory heirs like the legitimate children or the spouse whose
legitime are preferred than the illegitimate child, then the
donation will be reduced but only again insofar as the donation
impairs the legitimes of the other compulsory heirs.
How about donations made by the testator to the spouses?
During the marriage, spouses cannot donate to each other so
that donation is void and that donation shall not be deducted
from the estate but the value will remain in the estate. Therefore,
there is no need for collation.
What if nag donate sya katong single pa siya sa iyang uyab then
nag-asawa sila? What is the status of that donation? That
donation will be considered as donation to strangers which will
be charged to the free portion. Ang void is the donation during
the marriage between the spouses.
ARTICLE 911. After the legitime has been determined in
accordance with the three preceding articles, the reduction
shall be made as follows:
(1) Donations shall be respected as long as the legitime
can be covered, reducing or annulling, if necessary,
the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever. If the testator
has directed that a certain devise or legacy be paid
in preference to others, it shall not suffer any
reduction until the latter have been applied in full to
the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater
than that of the disposable portion, the compulsory
heirs may choose between complying with the
testamentary provision and delivering to the devisee
or legatee the part of the inheritance of which the
testator could freely dispose. (820a)
In here, the legitimes are already satisfied. We are now talking
about free portions. And then to the free portions there are
certain dispositions that have to be charged. Like for example,
donation made to strangers, legacies and devises, we follow
Article 911. If the free portion is not sufficient to cover all these
donation, legacies and devises, kay kung tama ra man diay ang
free portion, you do not have to follow Article 911. Charge
everything and there is still an excess. So kaning sa Article 911
kay dili sakto ang free portion.
So in case there are several donations which must be charged to
the free portion pero dili sakto ang free portion.
For example ang free portion kay P500k and then the testator
made two donations, one is P400k and another P300 so ang
total sa donation is P700k while the free portion is only P500k.
So asa sa duha ka donation atong i-satisfy first? Or should we
satisfy pro rata?
Of course between donations, legacies and devisees, mas
preferred and donation. So halimbawa P500k ang free portion
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
and donation is P400k, and another one is P300k and the legacy
is P50k and a devise of P100k. In that case we have P850k
tanan. How do we satisfy?
1. First, between donations and legacies, unahon nato
ang donations kay mas naay priority ang donations.
2. Between two or more donations, we give priority to the
earlier donation.
We follow here the principle of “First in time, priority in time” or
“first come, first serve”. Assuming ang first or earlier donation kay
katong P400k so we charge that to the free portion. So naay pay
remaining na P100k because the free portion is P500k. So we
satisfy the next donation katong second, katong P300k pero dili
tanan kay P100k nalang man ang nabilin sa free portion. So that
donee will have to return P200k kay out of the P300k donation,
he can only respect P100k.
How about the legacy of P50k and the devise of P100k? Wala
na. They can no longer be respected because they are no longer
covered by the free portion. So kato lng donation ang atong ma
respect.
Now, what if sakto pa? So P500k ang estate, and then ang first
donation kay P200k and then another donation of P200k and
then 50k na legacy and then P100k na devise. So we have
P550k. But we only have P500k free portion. So how do we
satisfy? Again, respect the first donation (P200k), respect also
the second donation (P200k). So only P100k remaining in the
free portion. But we have P150k legacy and devise. So which
one should be satisfied first? The law says pro-rata, without any
distinction whatsoever. So how do we pro-rate?
Free portion remaining: P100k (after deducting the two P100k
donation)
Devise: P100k
Legacy: P50k
Formula:
For devise:
= ___100k (amount of devise) x 100k (free portion)
150k (amount of devise and legacy)
= P66,666.666 (devise)
For legacy:
= ___50k (amount of legacy) x 100k (free portion)
150k (amount of devise and legacy)
= P33,333.33 (legacy)
So you cannot deduct the whole P100k (for devise) or the whole
P50k (for legacy). You can deduct only from the free portion the
P66,666.66 for the devise, and deduct the P33,333.33 for the
legacy. So they are apportioned. Pro rate. So that’s how you pro-
rate in Article 911.
But if the testator says that a certain legacy or devise is
preferred. Like here (refer to the example above), the testator
says that the devise of P100k is preferred. Therefore, the
remaining P100k free portion is given to the devisee. So we can
no longer satisfy the legacy of P50k because there is a
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
preference given to the devise. So we don’t pro-rate anymore if
the testator says that the devise or the legacy should be
preferred.
So just take note of no. 3, if the legacy or devise consist of
usufruct or life annuity. The value is greater than the free
portion. So what are the options of the compulsory heirs? They
may comply/apply with that usufruct or life annuity but only to the
extent of the free portion. Again, the testator cannot impair the
legitimes of the compulsory heirs. So anything he gives by way of
legacy or devise or inheritance of the voluntary heirs, they can
only be covered to the extent only of the amount of the free
portion.
ARTICLE 912. If the devise subject to reduction should
consist of real property, which cannot be conveniently
divided, it shall go to the devisee if the reduction does not
absorb 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. (821)
Here the devise is a real property which cannot be conveniently
divided and it exceeds the free portion.
For example, P1M is the value of the estate and then the devise
is of a house and lot with the value of P600k. So out of the P1M
covered na didto ang devise nga P600k because the estate is
consist of the house and lot which is valued at P600k plus cash
na P400k so P1M ang estate. The free portion if the compulsory
heirs are only legitimate children again is P500k. So of course we
say na ang devise is inofficious meaning it exceeds the free
portion, the devisee or the legatee will have to return or give back
or reduce it to complete the legitime of the compulsory heirs. So
in this case if the legacy or devise is P600k and the free portion
is only P500k, we reduce that by P100k. However, it is a house
and lot, how do we divide? Do we just take the door or window?
It is not convenient. So what will happen now?
The law says if the reduction does not absorb ½ of its value, how
much is the reduction in the example? P100k. So it does not
cover ½, what is the rule? It will go to the devisee and the
devisee will just pay the P100k. That is how we distribute. But if
the reduction is ½ of the value then that will go to the compulsory
heirs and they will just pay the devisee.
The second paragraph says, “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.”
Assuming a compulsory heir is also given a devise. As long as
the value of the devise does not exceed the free portion plus his
share, then he can retain it.
But if the devise is in excess, halimbawa P1M ang estate ang
free portion is P500k and there are 4 legitimate children so each
is entitled to P125k. So maximum lang nga pwede makuha ni A
including the devise is P500k from the free portion plus his share
of legitime which is P125k so a total of P625k. So if that is the
value of the devise, so okay na siya, no problem. But if the total
value of that devise is P800k, even if you add the free portion to
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
his legitime, it is still excessive because again, he is only entitled
to P625k. In the example given there is an excess of P175k, it
cannot be given to him anymore. It has to be reduced. Because if
you respect that in its entirety, it will prejudice the legitime of the
other compulsory heirs. So again he can exercise the right under
the first paragraph which is he can retain the house and lot
valued at P800k but pay his other compulsory heirs in cash to
satisfy their legitimes.
ARTICLE 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. (822)
Katong halimbawa na dili gusto i-exercise ni devisee sa Article
912 na akoa na ning balay bayaran ta lang mo og P100k, any
heir or devisee may exercise the right. Oh sige, kung dili ka, ako
nalang ng house and I will give you cash, or the property shall be
sold at public auction at the instance of any one of the interested
parties. The interested parties can be the heirs or the creditors.
So they can petition that dugay kaayo ka maka decide so kami
nalang. We will petition to sell the property at public auction.
ARTICLE 914. The testator may devise and bequeath the free
portion as he may deem fit. (n)
We cannot still say that the free portion is really a free portion
because from the free portion, we charge the legitime of the
surviving spouse and the illegitimate children. But if after
satisfying there is still a remaining portion left, then that is the
real free portion and the testator may devise and bequeath the
free portion as he may deem fit. So bisag kinsa niya ihatag as
long as the legatee or devisee is not disqualified to inherit from
the testator.
26 SEPTEMBER 2016
By: Mabel Acosta
SECTION 6
DISINHERITANCE
ARTICLE 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by law.
The law reserves the legitime for the compulsory heirs. But, in
certain cases, a compulsory heir may actually be deprived of his
legitime, and that is through disinheritance.
Disinheritance is a process or act through a testamentary
disposition of depriving in the will any compulsory heir of his
legitime for true and lawful causes. This is the way by which the
compulsory heir can be deprived of his legitime.
ARTICLE 916. Disinheritance can be effected only through a
will wherein the legal cause therefor shall be specified.
Requisites for valid inheritance
1. It can be effected only through a will
Before there can be a valid disinheritance, there must
be a valid will. Meaning, the will also has to comply with
all the formalities prescribed by law.
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
2. It must be made expressly
And then the law said, “wherein the legal cause
therefor shall be specified”. So here, there must be a
specification of the disinheritance-must be made
expressly. Because again, if you just exclude the
compulsory heir in the will, it is not disinheritance, it is
preterition. There must be a statement saying that “I
hereby disinherit, I do not want to give anything, I
exclude A” so it must be made expressly.
3. There must be a legal cause for the disinheritance
So what are the legal causes for the disinheritance?
Those are the ones mentioned under the new civil code
specifically under articles 919, 920, and 921.
If the disinheritance is not based on the causes
mentioned then the disinheritance is not valid.
4. The disinheritance must be made for true cause
Meaning, even if you specified the legal cause like he
has been convicted for a crime against my life or my
son led a miserable and dishonorable life, it is not
accepted per se. it has to be proved especially if the
disinherited heir denies. The proponents of the will
should prove that this ground mentioned really exists,
that it is really true.
5. The disinheritance must be for an existing cause
Meaning, it should already exists at the time of the
disinheritance. Like the son is already living a
dishonorable life, the daughter has already been
convicted of attempt against the life of the testator.
Because if the will provides “if my son will lead a
dishonorable life, I will disinherit him” and later on 5
years after the execution of the will the son lead a
dishonorable life. Is the son already disinherited
because there was a provision in the will? No, because
at the time when the will was made, the cause was not
yet existing. So it has to be for a cause already existing
at the time of the execution of the will.
6. The disinheritance must be total or complete
So you cannot just say “I disinherit him of the free
portion or ¼ of his legitime” you must disinherit him for
the legitime and everything. It must be total and
complete.
7. The cause must be stated in the will
Aside from the fact there is really a legal cause that the
son lead a dishonorable life, aside from the fact that it
is true, it must be stated in the will. You have to specify
the reason, must be stated in the will.
8. The heir disinherited must also be identified
9. The will should not have been revoked
Because, if the will has been revoked, even if it was
valid before then the will loses its validity and it cannot
be the basis for disinheritance.
CHING vs. RODRIGUEZ
G.R. No. 192828
November 28, 2011
Here there is declaration of nullity of a waiver, affidavit of
extrajudicial settlement, deed of absolute sale, transfer certificate
of title with prayer of the issuance of a temporary restraining
order and a writ of preliminary injunction. So in the complaint, it
was alleged that a certain Ramon misrepresented himself as the
heir when in truth and in fact he was just an adopted, his birth
certificate was merely simulated. And then the decedent her died
because of a stab wound and Ramon was the suspect. Ok so
here it was filed to disinherit him.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Now the question here among others is that should this case be
filed within the regular court because it was alleged that by
reason of the prayer for disinheritance, this is a special
proceeding so this should have been file in the testate or
intestate court and should not be a regular court. The Supreme
Court said that an action, this essentially is an action for
reconveyance of title which is a civil action. And the SC
distinguished here, a civil action from a special proceeding.
Here the SC said under article 916 of the Civil Code
disinheritance can be effected only through a will wherein the
legal cause therefor shall be specified. Here, while the
respondents in their complaint sought the disinheritance of
Ramon, no will or any instrument supposedly effecting the
disposition of Antonio’s estate was ever mentioned hence,
despite the prayer for Ramon’s disinheritance this case does not
partake the nature of a special proceeding and does not call for
the probate court’s exercise of its limited jurisdiction because
again there was no will presented, the disinheritance was just
mentioned. Unless there is a will, it can never be a special
proceeding.
ARTICLE 917. The burden of proving the truth of the cause
for disinheritance shall rest upon the other heirs of the
testator, if the disinherited heir should deny it.
So this is related to the requisites, hat for a disinheritance to be
valid there must be a true cause. So, who has the burden of
proof? It should be the proponents of the will; the other heirs who
stand to inherit the share of the disinherited heir. So it is not
enough that it is alleged, it should be proved.
ARTICLE 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, is
not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may
prejudice the person disinherited; but the devises and
legacies and other testamentary dispositions shall be valid
to such extent as will not impair the legitime.
So again, another case of invalid disinheritance as we discussed
before, the cause is not specified or that it is not proved, or it is
not among those provided under the New Civil Code. So that
would be a case of invalid disinheritance.
Now it is importance to know what the consequence is if the
disinheritance is invalid. The law says it shall annul the institution
of heirs insofar as it may prejudice the legitime of the person
disinherited but the devises and legacies and other testamentary
dispositions shall be valid to such extent as will not impair the
legitime.
A B and C are the sons of the testator. D is the bestfriend of the
testator. In his will, he disposed of all his entire estate worth
12M, he said “ I hereby institute as my sole heir to my estate of
12M A B and D; and I hereby disinherit my son C because I don’t
like his face. So that’s the reason, is it valid? Of course not
otherwise daghan kaayug pwede madisinherited. So its not valid.
What is the consequence? The law says the institution of heirs
shall be annulled insofar as it may prejudice the invalidly
disinherited heir but the devises and legacies and other
testamentary dispositions shall be respected.
What do we do? We give first the legitimes of the compulsory
heirs so 12M ÷ 2, that would be 6M- the legitime. Free portion is
also 6M. so we distribute the legitime among the comlusory heirs
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
so divided by three so 2M. So we already satisfy the legitime of
the compulsory heirs including C who was invalidly disinherited.
How about the free portion, how do we distribute that? we
distribute that according to the will, the testator instituted A B and
D as his sole heirs. How about C, is he entitled to a share in the
free portion? No more because his legitime is already satisfied.
So here as long as the legitime of the invalidly disinherited heir
has been satisfied then you can already give effect to the
institution.
So take note of the difference if this is preterition. Assuming C is
preterited how to we distribute the estate? The law says Article
854 the institution of heir shall be annulled, legacies and devises
which are not inofficious shall be respected.
Kay wala namay institution, we go to legal succession. So now
who shall receive in legal succession? The legal heirs who are A
B and C. D is not a legal heir, he’s just the bestfriend. He cannot
receive anything.
So take note of the distinction. In preterition, only the legacy or
devise which are not inofficious shall be respected. But in
disinheritance, the law says legacies, devises and testamentary
dispositions including institutions as long as the legitime of the
invalidly disinherited heir is already satisfied then we can give
effect to the rest of the institution. The word and other
testamentary dispositions do not appear in preterition.
So again in preterition it is important to know whether or not the
person is an heir, legatee or devisee, as it matter but in
disinheritance just satisfy the legitime of the invalidly disinherited
heir and you can give effect to the legacy, devise and institution
of heirs.
ARTICLE 919. The following shall be sufficient causes for
the disinheritance of children and descendants, legitimate
as well as illegitimate:
5. 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;
6. 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;
7. When a child or descendant has been convicted of
adultery or concubinage with the spouse of the
testator;
8. 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;
9. A refusal without justifiable cause to support the
parent or ascendant who disinherits such child or
descendant;
10. Maltreatment of the testator by word or deed, by the
child or descendant;
11. When a child or descendant leads a dishonorable or
disgraceful life;
12. Conviction of a crime which carries with it the
penalty of civil interdiction.
Ok so these are the grounds to disinherit children and
descendant whether legitimate of illegitimate. Memorize.
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
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Take note here that the law says “found guilty”- judgment must
be by final judgment. There should be conviction already for it to
be considered as a ground.
The law says “attempt”- there are several stages of execution to
that, we have attempted, frustrated and consummated. So would
frustrated and consummated be included also? With more
reason, so it will just be limited to attempt.
Now, the degree of participation; we have principal, accessories,
accomplices. What if the heir was just an accomplice or
accessory? The law would include an accomplice but authority
say that an accessory is no longer included because it is after
the. If you’re the principal, of course regardless of whether you
are the one who actually committed it or just told other people to
do it for you, as long as you are the principal.
When should the conviction happen? For example at the time of
the execution of the will wala pa siya na convict and we cannot
expect that conviction will happen soon. As long as he is
eventually convicted. And of course as long as the time the will
was made there was already this attempt, the offense was
already present.
How about if the heir was just driving recklessly and because of
this he hit the testator who was crossing the street and there was
danger, is this a ground to disinherit the heir? Authorities would
limit this to intentional so not one committed because of reckless
imprudence.
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
Now take note here of the kind of crime which is imputed to the
testator, must be a crime which the law prescribes imprisonment
for 6 years or more. So kung nag ingon lang ka nga gipusil sa
testator ang iro sa silingan then that’s just malicious mischief so it
is not one covered under this paragraph.
And the accusation is found to be groundless because if the
testator is also convicted of that then he has no right to disinherit
the heir
Now, how can the accusation be made against the testator? Of
course it can be made by filing the case against the testator or by
acting as a witness against the testator, or by refusing to testify in
favor of the testator if his testimony would have been material to
the acquittal of the testator.
3. When a child or descendant has been convicted of
adultery or concubinage with the spouse of the
testator
Take note here, conviction by final judgment. So ang iyang
descendant, iyang (testator) anak for example nay affair with the
asawa ni testator and then convicted so it doesn’t matter kung
mam ba jud sa iyang anak ang ka affair basta kay spouse of the
testator.
How about if the testator himself had an affair sa iyang anak?
This is a ground to disinherit the child. How about the spouse? Is
this also a ground to disinherit the spouse? Well you see, if you
look at 921 it seems like its not included, but actually it is.
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
So convicted, the descendant must be 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
Now how do we know whether or not the refusal was without
justifiable cause? It would really depend on the means of the
descendant who is obliged to give support and on the necessity
of the testator who requires such support. So depende. So for
example, the son is also just a janitor, and ang father
nagademand ug 10k per mo. Na support then you can say that it
would not be unjustifiable if the son would refuse
6. Maltreatment of the testator by word or deed, by the
child or descendant
Take note here, it is the descendant or the child who maltreats
the testator. So kung gibunalan ka sa imong papa, ok lang na
siya.pero kung gibunalan nimo imong papa, kana dili na xa okay
that is maltreatment. That is why ther is no similar ground insofar
as parents are concern.
PECSON vs. MEDIAVILLO
G.R. No. 7890
September 29, 1914
In this particular case, the testator left a will ,” I declare that one
of my daughters named Teresa, now deceased left a legitimate
daughter named Rosario, I also declare that I disinherit my
granddaughter Rosario because she was disrespectful to me and
because in one occasion she raised her hand against me
therefore it is my will that she shall have no share in my property.
So the defendant her was disinherited. And she denied the
reason for the disinheritance.
Here the SC said that from the record of the case, it appears that
Rosario was about 14 years of age and she had received some
attentions from a young man and that her grandfather took steps
to sever the relations between her and the young man and It was
on that occasion that the alleged disrespect and disobedience
was made against the testator. And that was the cause of the
disinheritance. Based on the records also, very soon after the
said event, Rosario lost the use of her mental faculties.
The act would have been considered a maltreatment as when
you slapped your grandfather- that is not proper for the
granddaughter to slap. Affected lang jud guru siya kay first time
nay nanguyab sa iyaha. Gidibdib jud niya kay nabuang man siya
pagkahuman.
So taking into consideration the situation, when she was still in
tender years then she lost her mental faculties thereafter, the
conclusion was reached that she was probably not responsible
for the disrespect and disobedience shown to his grandfather in
the year 1945. Even if she did that, the SC looked into the
voluntariness and use of intelligence in such conduct. So,
because she lost her mental faculties afterwards, then maybe it
was not really voluntary. So the SC here struck down the
disinheritance. It was not considered as valid.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
SEANGIO vs. REYES
G.R. Nos. 140371-72
November 27, 2006
The will here is entitled Kasulatan Sa Pag-Aalis Ng Mana.
(Ma‘am reads will written in Tagalog) Here, the question is will
this ground constitute maltreatment sufficient to disinherit a
child? The Supreme Court said, taking the totality of the
circumstances mentioned by the testator and assuming that
these are proven, this will be considered as a sufficient ground to
disinherit the heir by reason of maltreatment. So, [maltreatment
is] not necessarily by deed. It can be by word.
7. When a child or descendant leads a dishonorable
or disgraceful life;
Now the question is what is dishonorable or disgraceful life? Like
for example, corrupt siya is that dishonorable? Engaged in
prostitution? It is actually relative. But the law says life, so it has
to be way of life not a single act. Halimbawa nakita nimo imong
anak nag one night stand is that dishonorable? Debatable.
8. Conviction of a crime which carries with it the
penalty of civil interdiction.
ARTICLE 920. The following shall be sufficient causes for
the disinheritance of parents or ascendants, whether
legitimate or illegitimate:
1. When the parents have abandoned their children or
induced daughters to live a corrupt or immoral life,
or attempted against her 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 for which the law prescribes imprisonment
for six years or accusation has been found to be
false;
4. When the parent or ascendant has been convicted
of concubinage with the spouse of the testator;
5. When the parent or ascendant by fraud, violence,
intimidation, undue influence causes the testator to
make a will or to already made;
6. The loss of parental authority for causes specified
in this Code;
7. The refusal to support the children or descendants
justifiable cause;
8. An attempt by one of the parents against the life of
the other unless there has been a reconciliation
between them.
These are the grounds to disinherit the parents or ascendants.
1. When the parents have abandoned their children or
induced daughters to live a corrupt or immoral life,
or attempted against her virtue;
What is the abandonment here? Again the act does not have to
amount to a crime as long as by reason of that abandonment the
child has been deprived of the basic necessities of life. So here,
there is no need for conviction because again the act does not
have to amount to the crime of abandonment.
“Induced daughters to live a corrupt or immoral life” so gibugaw
nimo imong anak, the laws says daughters, how about sons?
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
Can a son be corrupted? Yes, so by analogy not only limited to
daughters.
Take note of the grounds under 2, 3, 4, and 5- they are the same
ground as to disinherit a child or descendant, as what we’ve
already discussed.
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 for which the law prescribes imprisonment
for six years or accusation has been found to be
false;
4. When the parent or ascendant has been convicted of
concubinage with the spouse of the testator;
5. When the parent or ascendant by fraud, violence,
intimidation, undue influence causes the testator to
make a will or to already made;
6. The loss of parental authority for causes specified in
this Code;
There are several grounds for the loss of parental authority; even
emancipation of the child is a ground for the loss of parental
authority. When we say loss of parental authority, that should
refer to an offense committed by the parent for which reason the
parent loss parental authority, so because of the fault of the
parent or ascendant.
7. The refusal to support the children or descendants
justifiable cause;
8. An attempt by one of the parents against the life of
the other unless there has been a reconciliation
between them.
Now take note “attempt by one of the parents against the life of
the other” in number 2. When the parent or ascendant has been
convicted of an attempt against the life of the testator himself, or
against the life of the spouse of the testator or an ascendant of
the testator. So this could also cover the situation with for
example the father attempted against the life of the mother of the
testator.
So in number 8, the attempt here is not by conviction by final
judgment but in number 2 conviction by final judgment.
So if it is a case where the father attempted against the life of the
mother and the son would like to disinherit that parent who made
an attempt, is it required that there must be a conviction first?
Well if it is specific as to one parent committing against the life,
an attempt against the life of the other parent- you can apply
number 8 so mere preponderance of evidence will be sufficient.
And even that there was an attempt if there was already
reconciliation between the parents then the child can no longer
disinherit. So here, if the son who has been offended consults
you as a lawyer- again you don’t need to secure a conviction for
the father to be disinherited. But for example your client
mentioned to you “actually after gipusil sa akoang papa akong
mama then nahospital siya for 2mos nagreconcile na sila“ but still
the son would like to disinherit his father.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Would you say it is not possible anymore as it is provided in
number 8 “unless there has been reconciliation” then you cannot
disinherit? But if the son would really like to disinherit, then he
has to file a case against the father and secure a conviction then
you can rely on number 2. Because in number 2, there is no
mention of reconciliation but there is need for conviction. In
number 2, reconciliation will not erase the ground unlike in
number 8.
ARTICLE 921. The following shall be sufficient causes for
disinheriting a spouse:
1. When the spouse has been convicted of an attempt
against of the testator, his or her descendants, or
ascendants;
2. When the spouse has accused the testator of a
crime for law prescribes imprisonment of six years
or more, and the has been found to be false;
3. When the spouse by fraud, violence, intimidation,
influence cause the testator to make a will or to
change made;
4. When the spouse has given cause for legal
separation;
5. When the spouse has given grounds for the loss
authority;
6. Unjustifiable refusal to support the children or the
other.
So here, it is the spouse who is being disinherited. Again
grounds number 1, 2, 3, 6, are the same to those previously
discussed in articles 919 and 920.
Article 921 #4. When the spouse has given cause for legal
separation:
Take note in articles 919 and 920; 919 says that when a child or
descendant has been convicted of adultery or concubinage with
the spouse of the testator and 920 when the parent or ascendant
has been convicted of concubinage with the spouse of the
testator.
But there is nothing in article 921 which says that when the
spouse has been convicted of adultery or concubinage with the
descendant or ascendant of the testator, there is nothing. But it
says “when the spouse has given cause for legal separation”.
Take note as what we’ve discussed before insofar as the legitime
of the spouse is concerned, in case of legal separation the guilty
spouse is disqualified to inherit from the innocent spouse. That
applies in testamentary succession as well as in intestate
succession.
What if there was yet no decree and the petition for legal
separation is still ongoing, then the innocent spouse died, what
happens now to the right of the defendant guilty spouse to inherit
is he disqualified? No because there is no decree of legal
separation, he is not disqualified. But that would’ve been a
ground to disinherit him but if there was no disinheritance made
then the spouse can still inherit. So here the cause for legal
separation can be used as a ground for disinheritance but unless
the spouse has been disinherited and there is no decree yet, he
is not disqualified, he can still inherit.
So what are the grounds for legal separation?
ARTICLE 55. A petition for legal separation may be filed on
any of the grounds:
(1) Repeated physical violence or grossly abusive
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
conduct against the petitioner, a common child, or
a child of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, common child, or a child of the
petitioner, to engage in prostitution, connivance in
such corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment for 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 petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a
child by nature or by adoption. (9a)
So these are the grounds for legal separation which are also
ground for disinheritance pursuant to article 921.
What if my husband is gay, can I disinherit him? Yes, because
that is a ground for legal separation. What if the spouse has an
affair with the descendant or ascendant of the testator, can that
spouse be disinherited? It is clear in article 919 and 920 that it is
a ground to disinherit a child or ascendant. How about if the
spouse has an affair with the son or the father of the testator, can
the spouse be disinherited? It can fall in sexual infidelity or
perversion so you can use it also as a ground for disinheritance
Article 55 #9.) Attempt by the respondent against the life of the
petitioner; so if your husband or wife attempted against your wife
that is a ground for legal separation which is also a ground for
disinheritance. But take note also again in article 921 #1.When
the spouse has been convicted of an attempt against of the
testator, his or her descendants, or ascendants so again this will
also cover where the husband or the wife attempted against the
life of the wife but the law says convicted so under #1 we need
conviction by final judgment but under article 55 #9 of the Family
Code there is no need for conviction here by final judgment only
preponderance of evidence
So when it comes to a spouse attempting against the life of the
other it is not limited to article 921 #1 you can also use #9 of
Article 55 of FC in relation to 921 #4.
ARTICLE 922. A subsequent reconciliation between the
offender and the person deprives the latter of the right to
disinherit, and renders ineffectual disinheritance that may
have been made. (856)
Ok so the effect of reconciliation between the offender and the
offended party, reconciliation can actually happen before the
disinheritance or after the disinheritance.
So for example, the son try to kill his father and because of this
of course the father was offended he filed a case against his son
the son was convicted and imprisoned and wala pa nakabuhat
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
ug any will si father they reconciled, nagreconcile silang duha,
can the father still disinherit the son based on that ground,
attempt against his life? No more. So it deprives the testator of
the right to disinherit already because of the reconciliation or
because he was really offended the father disinherited his son
and then they reconciled so that reconciliation now renders
ineffective the disinheritance- so the son can still inherit.
Now for example the father died without having executed another
will aside form that will where he disinherited his son, so
pagkamatay niya he can’t say that there is a disinheritance of his
son. So aside from the grounds we’ve discussed for a valid
disinheritance, the cause must be one of the grounds prescribed.
So here it was proved, the son was convicted but aside from that
the heir that was disinherited can prove that there was
reconciliation “although I admit that I really committed such
offense and there is disinheritance, but he can prove a
subsequent reconciliation between him and the testator and that
would again restore him of his legitime.
No what is reconciliation? It is the mutual resumption of
delegation between the offender and the offended party prior to
the offense. So here the father already forgives his son who asks
for forgiveness. It involves a bilateral act between the offender
and the offended party. So that is reconciliation that will restore
the disinherited heir of his legitime. So it erases the ground for
disinheritance.
So for example the father just pardon his son, the father said I
forgive you but the son answered who said I regret it in fact pag
gawas nako dri pagbantay2x dra. But the father really forgive his
son, is the son now restored to his legitime? No, because there is
no reconciliation. Reconciliation must be bilateral, mutual.
ARTICLE 923. The children and descendants of the 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 property which constitutes the
legitime.
Now a disinherited heir can be represented. So we have a
testator and his children A B and C. A also have his own children
X and Y. the estate is 1.2B.
If A is validly disinherited (assuming wala pa si X and Y) how do
we distribute the estate? So first we get the legitime so 6M,
because of the disinheritance of A he is excluded so his share
will go to B and C so 3M each.
Halimbawa si A nay anak si X and Y and A was validly
disinherited, so here A can be represented by X and Y. how do
we distribute the estate? Again legitime 6M ÷ 3 =2M each. But
because again A was disinherited, his share shall be divided
equally between X and Y. So that would be 1M each.
When we say representation, the representatives cannot inherit a
share more than what the person represented would have been
entitled to receive. Their inheritance is what we call in their own
right per capita. Their inheritance is what we call by
representation per stirpes tungaon nila.
Now another feature of the law, for example X and Y are minor
children of B and the property for example is a parcel of land
worth 1.2 gitunga2x nila, kay minor paman si X and Y di ba under
the FC the parents are the natural guardian of their children that
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
are minor although again if for example if the value of the
property there is a need for a bond and again the parents are the
natural guardian. But here because he was disinherited he
cannot have the administration or usufruct over the property of
his children so that is an exception to the rule under the FC that
parents as natural parents can have administration and usufruct
over the property of the minor children. So what will happen
then? Who will administer the property because X and Y are still
minors? Then a guardian has to be appointed for that property
with respect to X and Y. because that’s under article 923 the
disinherited parent shall not have the usufruct or administration
of the property which constitutes the legitime.
SECTION 7
LEGACIES AND DEVISES
ARTICLE 924. All things and rights which are within the
commerce of man be bequeathed or devised.
So we distinguished before legacies and devises and inheritance
on the other. Take note under article 924 what can be devised or
bequeathed, the law says all things and rights which are within
the commerce of man. When we discussed before what is
inheritance under article 776 inheritance includes all properties,
rights and obligations that are not extinguished by death and are
transmitted to the heirs.
So what is missing here in legacies and devises are obligations;
when you are an heir you inherit properties, rights, obligations
but legacies do not cover obligations. Obviously because for
example, I hereby give to Mr. Rrramon my debt of 10M would he
accept? Of course not. But again in inheritance the transmission
of obligation must not exceed the inheritance as what we’ve
discussed before heirs are not personally liable.
Now with respect to things and rights we discussed this already
when we discussed the subjects of succession. What properties
may be transmitted by succession, what rights may be
transmitted by succession, so these are the same properties and
rights which can be devised or bequeathed.
ARTICLE 925. A testator may charge with legacies and
devises not only his compulsory heirs but also the legatees
and devisees. The latter shall be liable for the charge only to
the extent of the value of the legacy or the devise received
by them. The compulsory heirs shall not be liable for the
charge beyond the amount of the free portion given them.
(858a)
So here we are talking about charging the legacy or devise. For
example, I hereby give to a 1M I hereby give to B a parcel of
land. Now who has the obligation to comply with this legacy? It
can be charged to the estate or to an heir. So for example you
are an heir pwede nga ikaw ang nay obligation nga ideliver ang
1M or the land. or also to the legatee or devisee himself.
So I hereby give to B 10Mbut he shall also give to X 5000. So
that’s a legacy charged to a legatee. That is what we call sub-
legacy or sub-devise. Even compulsory heirs can be charged
with a legacy or devise but then only to the portion received by
the compulsory heir which is beyond his legitime. Remember dili
pwede kuhaan ang legitime. So kung tagaan nimog obligation si
compulsory heir to perform a certain legacy or devise, it should
be taken from the free portion given to him not from his legitime.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
*If you are a legatee and you have been charged to deliver a
legacy, that legacy which you are to deliver is what we call SUB
LEGACY or if you are devisee and you charged with the
obligation to deliver a devise that is a SUB DEVISE.
ARTICLE 926. When the testator charges one of the heirs
with a legacy or devise, he alone shall be bound. Should he
not charge anyone in particular, all shall be liable in the
same proportion in which they may inherit. (859)
So here we talking of heirs that are charged with legacy or
devise. Again if the testator says I hereby institute A B C and D
as my heirs and then A shall also have the obligation to comply
with the giving of the legacy to X so it’s A alone who is charged.
What if not in particular, I hereby institute A B C and D as my
heirs and I also give a legacy of 1M to X, where do you get the
1M? here, proportionately from all of them. So you already know
how to apportion, kabalo namo ana.
ARTICLE 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. (n)
Now this article presupposes that there was no partition yet
because when there is already a partition each heir is now the
exclusive owner of the specific portion. So here, wala pay
partition. And then 2 or more heirs take possession of the estate
and then something happen to the thing bequeathed or devised,
so for example a house, wala pa gani nagpartition si A ug B
nagsulod na sa house then nasunog ang house, who is liable?
The law says they shall be solidarily liable even though only one
of them had been negligent. So if you remember your Obligations
and Contracts in general when there is concurrence of 2 or
more debtors 2 or more creditors one and the same obligation,
as a general rule the obligation is joint, except. One exception is
when the law expressly provides. So this is one provision of the
law which provides for solidarity. So you solidary liability, anyone
of them can be held liable for the entire obligation.
So even if it is only A’s fault that the house was burned but
because their obligation is solidary it can be also be demanded
from B.
ARTICLE 928. The heir who is bound to deliver the legacy or
devise shall be liable in case of eviction, if the thing is
indeterminate and is indicated only by its kind. (860)
Here, the property is indeterminate or generic so indicated only
by its kind like for example I hereby give to A a car and X my heir
have the obligation to deliver the car. Now again it is just a car so
it is generic.
So for example the heir who has been charged of the obligation
give to the legatee a car medium quality however naa diay
problema sa car so nadisposses si legatee of that car the law
here says that there is liability in case of eviction. So what do we
mean by liability in case of eviction? Katong heir who had the
obligation to deliver the car shall replace with another car he has
to compensate the legatee for the loss of the car. Why is there
such an obligation? Because the legacy here or devise is
indeterminate meaning the one who makes the choice which
particular car shall be delivered to the legatee is with the heir
who has been charged so naa siyay leeway kung unsa na car,
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
iyaha to nga desisyon nga kato nga car ang ihatag. So if it turns
out na there is a problem with the car then he has to answer for
that because again it was his decision to deliver that car. So that
is if the legacy or devise is of an indeterminate or generic thing.
What if specific, the testator said I hereby give to A my Honda
Civic Yr 2015 plate number 111111 color yellow and X my heir is
charged with the obligation to deliver that. Here, X has no choice;
he has to deliver the car that was specified so there would be no
liability on the part of the heir if it turns out that there is a problem
with the car. So that’s the difference.
ARTICLE 929. If the testator, heir, or legatee owns only a
part of, or an interest in the thing bequeathed, the legacy or
devise shall be understood limited to such part or interest,
unless the testator expressly declares that he gives the
thing in its entirety. (864a)
Ok, so here the question is what is the effect of ownership as to
the validity of the legacy or devise.
General rule: The testator can only bequeath or devise what he
owns; you cannot give something which you do not own.
So here in article 929, here, the ownership of the testator is only
a portion of the thing which is bequeathed or devised. Like here
the testator devised to A a parcel of land but he only owns ¼ of
such land; the rule here is the legacy or devise shall be limited to
such part or interest which is owned by the testator. Didto lang
kung ¼ lang ang iyang interest then the legacy or devise is
effective only as to ¼ of the property. Unless, testator expressly
declares that he gives the thing in its entirety. So what happens
now?
The testator said I hereby give the entire parcel of land in Matina,
Davao City but he owns only ¼ of that land but there is an
express declaration that he gives the thing in its entirety. Here,
there is now an implied directive upon the estate to acquire the
shares of the other owners so that the entirety can be given to
the legatee or devisee.
What happens if the other owners do not want to alienate the
property or they are willing to sell their respective shares but with
an excessive price? In that case what will happen, the heir will
give to the devisee or legatee the share of the testator in the
property as to the balance give to the legatee or devisee the just
value of that balance. So that is the rule.
ARTICLE 930. The legacy or devise of a thing belonging to
another person is void, if the testator erroneously believed
that the thing pertained to him. But if the thing bequeathed,
though not belonging to the testator when he made the will,
afterwards becomes his, by whatever title, the disposition
shall take effect. (862a)
So here, the thing is not owned by the testator but he thinks that
he owns it. So here the devise is void. The testator cannot give
what he does not own. But the law says that if the thing
bequeathed, though not belonging to the testator becomes his,
by whatever title after he made the will and devise the land to D
the devisee and gidonate iyaha sa true owner ang property then
that is now valid. The law says the disposition shall take effect.
If you remember under article 793 on the rule on after acquired
properties the legacy or devise includes only that thing which
exists at the time of the execution of the will.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
ARTICLE 793. Property acquired after the making of a will
shall only pass thereby, as if the testator had possessed it at
the time of making the will, should it expressly appear by the
will that such was his intention. (n)
Exception:
1. When the testator expressly provides that even after
acquired properties shall be included.
2. The execution of a codicil which republishes the will.
3. So this is the 3rd exception of article 793; technically at
the time that the will was made wala pa ang property it
does not yet exist because the thing is not owned by
the testator but subsequently it is acquired by the
testator, it is acquired after the execution of the will so
technically it is after acquired property. But here the
devisee gets the land because the subsequent
acquisition by the testator now gives effect to the
legacy or devise
29 SEPTEMBER 2016
By; Alona Ruyeras
RECAP:
What we discussed last meeting was about the effect of
ownership of the legacy or devise.
So again first, if the testator owned only a portion of the thing or a
part of the thing, then the legacy or devise is only limited to that
portion which the testator owns. If the testator owned only a
portion but he said that the devise or legacy is given in its
entirety, then the entire property shall be acquired from the other
owners (ha???). If the testator, at the time he made the will
erroneously believed that he owned the thing and it turned out
that he did not own the thing, the legacy or devise is not valid.
But if he subsequently acquired the thing, through whatever title,
before his death, even if at the time he made the will, the
property was not owned by him, then the legacy or devise will be
effective.
ARTICLE 931. If the testator orders that a thing belonging to
another be acquired in order that it be given to a legatee or
devisee, the heir upon whom the obligation is imposed or
the estate must acquire it and give the same to the legatee
or devisee; but if the owner of the thing refuses to alienate
the same, or demands an excessive price therefor, the heir
or the estate shall only be obliged to give the just value of
the thing. (861a)
So this would apply when the testator gives something by way of
legacy or devise but he did not own the thing. However, he knew
that he did not own the thing. So here, the legacy or devise
would still be valid. I think I discussed this before, there is now an
implied instruction upon the estate to acquire the thing so that it
may be given to the legatee or devisee.
What if the owners refused to part with the thing? Or they
demand an excessive price? What is now the obligation of the
estate? To give the just value of the thing to the legatee or
devisee. So money nalang na sya. The just value of the thing
which is devised or bequeathed.
But again if the testator did not know that he owned the thing,
then the legacy or devise would be void. Because here, we
cannot presume that had the testator know that had he known
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
that he did not own the thing, would he still give the thing to the
legatee or devisee? We don’t know.
But if the testator already knew that he did not own the thing and
he is giving it by way of a legacy or devise, then it is very clear
that he really wanted to give the thing.
ARTICLE 932. The legacy or devise of a thing which at the
time of the execution of the will already belonged to the
legatee or devisee shall be ineffective, even though another
person may have some interest therein.
If the testator expressly orders that the thing be freed from
such interest or encumbrance, the legacy or devise shall be
valid to that extent. (866a)
So here, again, the testator, when he made the legacy or devise,
he did not own the thing. But here, the thing was owned by the
legatee or devisee. At the time of the execution of the will, the
owner of the property is actually the legatee or devisee. So what
is the status of this legacy or devise? The law says it is
ineffective. It is void. Why? Of course, you cannot give to
someone something that he already owns. So imbis
magpasalamat ka, imuha man diay tung gihatag sa imuha diba?
It’s ineffective.
Now, if the testator expressly orders that the thing be freed from
such interest or encumbrance, for example, another person has
an interest, then the legacy shall be valid or the devise shall be
valid to such an extent.
For example, D owns a parcel of land and then D borrowed
money from X, for example P1,000,000. To secure the loan, D
mortgaged his land to X. So the land is mortgaged to X. Now the
testator in his will devised the same land to D and ordered that
the land be freed from the mortgage. So “I hereby give to D this
parcel of land and hereby order that the land be freed from any
encumbrance”. What is the effect of that devise of the land to D?
Is it valid? So again, D owns the land, so he cannot be the
devisee of the land which he already owns in the first place.
Pursuant to the first paragraph of Article 932, that devise if
ineffective.
However, because the testator ordered that the land be freed
from the mortgage, although the devise of the land is not valid
but still the estate has the obligation to free the land from the
mortgage. So the devise is valid upto that extent. So what is the
meaning of that? Upon the death of the testator, the estate will
pay X P1,000,000 so that the land is now free from the mortgage.
So it’s valid upto that extent. As to the devise of the land, it is not
valid. Because you cannot give to D what D already owns.
ARTICLE 933. If the thing bequeathed belonged to the
legatee or devisee at the time of the execution of the will, the
legacy or devise shall be without effect, even though it may
have subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after
such time, he can claim nothing by virtue of the legacy or
devise; but if it has been acquired by onerous title he can
demand reimbursement from the heir or the estate. (878a)
Here, the first paragraph refers to that situation where at the time
of the execution of the will, the property devised or bequeathed
already belonged to the legatee or devisee. That’s the rule: If at
the time of the execution of the will, ang tag-iya sa property
devised or bequeathed kay si legatee or devisee, void ang
legacy or devise. So again, we have to emphasize that the
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
testator cannot give to the devisee or legatee what the latter
already owns. The law says, “even though it may have been
subsequently alienated by him.”
For example, year 2000, the testator executed a will. In that will,
he devised to D a specific parcel of land. But during that time, D
was actually the owner of the land. And then, in the year 2005,
the land was sold by D such that when the testator dies in the
year 2010, dili na si D ang tag-iya sa land. Can D now claim the
land as his devise? No, because the devise is void. At the time
the will was made, D was the owner of the land so it doesn’t
matter that upon the death of the testator, D was no longer the
owner. As long as he was the owner at the time of the execution
of the will.
Second paragraph, this refers to that situation when at the time
of the execution of the will, the legatee or devisee was not the
owner. Dili sya ang tag-iya. But subsequent to the execution of
the will, the legatee or devisee became the owner. So what is the
status of the legacy or devise? Pagkamatay sa testator, ang tag-
iya aron kay si devisee na or legatee. Pero katung gibuhat ang
will, dili sya ang tag-iya. What is the effect? It depends on how
the legatee or devisee acquired the property.
*If he acquired it by onerous title (he gave up something in
exchange for that property) – What is the right of the devisee or
legatee? The law says he can demand reimbursement from the
heirs or the estate. Kung unsa tong value sa iyang gi-give up of
price sa value sa iyang pagpalit, kay i reimburse. Why? Because
the purpose of the legacy or devise is for the legatee or devisee
to receive the property freely and without consideration. So let’s
restore that to the legatee or devisee. If he paid something, he
should be reimbursed. Because again, the intention is he has to
have that property for free.
*If he acquired the property through gratuitous title, like it was
donated to him, he did not pay anything for that, he cannot
demand anything more from the estate. Why? because he did
not give up or pay anything for that. The intent of the testator is
for the devisee or legatee to acquire that property freely by
reason of the devise or legacy. If it was already acquired
gratuitously by the devisee or legatee, the purpose was actually
achieved already. So the devisee or legatee can no longer claim
anything by virtue of the legacy or devise.
ARTICLE 934. If the testator should bequeath or devise
something pledged or mortgaged to secure a recoverable
debt before the execution of the will, the estate is obliged to
pay the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which the
thing bequeathed is burdened, passes with it to the legatee
or devisee. (867a)
Here in Article 934, of course, the property is owned by the
testator but the property has been pledged or mortgaged.
For example, the testator owns a parcel of land in Jacinto St.,
Davao City, 1,000 sq.m. But that land has been mortgaged by
the testator. So he devised the land to D. Is that devise valid?
Yes, it is valid. The land was mortgaged by the testator because
he borrowed P1,000,000. And now D is dead. What are the rights
of D, the devisee?
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
First, pursuant to Article 934, the devisee can claim the land as
his devise. Aside from that, the estate is obliged to pay the debt
in the absence of any contrary intention. The general rule is that
the estate has to pay the debt so that the property may be freed
from the pledge or mortgage. So here, aside from delivering the
land to D, the estate would have to pay P1,000,000. So that the
property can now be free from the mortgage.
The law says “before the death” or even “after the execution of
the will”. So here, the mortgage may have been made by the
testator before he made the will or after he made the will. So it
doesn’t matter as long, of course, that he made it before his
death. He cannot mortgage after his death (Ka-scary sad
Ma’am..haha), only his heirs can.
So here, the law says “Any other charge, perpetual or temporary,
with which the thing bequeathed is burdened, passes with it to
the legatee or devisee.” So the obligation of the estate to free the
thing from the burden is only limited to a pledge or a mortgage.
Kung naa pa syay lain charge, whether temporary or perpetual,
walay obligation na si estate to free the property from that
burden.
For example, land ni testator, and then naka bail bond, property
bond, halimbawa na preso tas gusto mugawas, pwede ka mag
property bond. And then that same land was devised to D. Then
the testator died. So what is the obligation of the estate? To
deliver the land to D. How about the bond? Halimbawa, mu-
escape tung preso, ma forfeit ang bond in favour of the State.
Kung na inherit na to ni D, mawala pud to kay D. Here, the estate
has no obligation to free the property from the burden of the bond
because the bond is not a pledge or a mortgage. So any other
charge which is not a pledge or a mortgage will be passed on to
the heirs. That is under Article 934.
ARTICLE 935. The legacy of a credit against a third person
or of the remission or release of a debt of the legatee shall
be effective only as regards that part of the credit or debt
existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy
by assigning to the legatee all rights of action it may have
against the debtor. In the second case, by giving the legatee
an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on
the credit or debt which may be due the testator at the time
of his death. (870a)
Article 935 talks about “Legacy of Credit” and “Legacy of
Remission”.
For example, the testator lends money to D, the debtor. D owes
P1,000,000 from the testator. Now in his will, the testator said,
“whatever receivable I may have against D at the time of my
death, I am going to remit that.” Di na kelangan mubayad si D
kung naa pa syay balance at the time of death. That is a “Legacy
of Remission”.
For example, the same situation, but this time the testator says
“whatever receivable I may have from D at the time of death, X
can collect that, I am giving that to X.” So, X now has in his
favour a “Legacy of Credit”. Upon the death of the testator, it will
be X who has a right to collect from D.
Now, what is the rule with respect to the legacy. The law says “It
shall be effective only as regards that part of the credit or debt
existing at the time of the death of the testator.”
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
So for example P1,000,000 ang utang ni D and it is a legacy of
remission, during the lifetime of the testator, nagbayad si D ug
P200,000, then the testator died. What is the value of the
legacy? It is P800,000 (P1,000,000-P200,000). What is the
purpose ngano kelangan ta magcompute na dili naman
magbayad si D ato? Well, for the purpose of computing estate
tax. Because what is the value of the legacy? That is P800,000.
What if, instead of paying, ana si D, “Ah, sige, legacy of
remission diay, so whatever utang nako kay testator, mangutang
pa kog dugang!” So nangutang syag dungag P200,000. So when
the testator died, his debt if P1,200,000. How much is the value
of the remitted debt? Pila man didto ang legacy of remission?
The law says, “Only as regards that part of the credit or debt
existing at the time of the death.” Unya at the time of the death
ka yang utang P1,200,000 man. So it is P1,200,000? No. Why?
Because we apply here the law on after-acquired properties.The
P200,000 here was added after the execution of the will. So it is
not included in the legacy. The same thing with legacy of credit.
So kung nabawasan, kato nalang balance, pero kung
nadungagan, katung value at the time of execution of the will.
ARTICLE 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. (871)
Legacy of Credit or Legacy of Remission. So again the same
noh, nangutang si D kay testator then the testator said,
“whatever balance at the time of my death, that will be
considered remitted.”
But, after the execution of the will, nagfile si testator ug action for
collection against D. So what is the consequence of that filing? It
has the effect of revoking that legacy, it lapses.
The law says, “should bring an action”. So kung nagpadala lang
ug demand letter si testator kay D, it will not revoke the legacy.
“Bringing an action” means filing a case in court.
Second paragraph, “legacy to the debtor of the thing pledged by
him”. It is valid? When you say the debtor pledged a thing to the
testator, meaning, kinsay tag-iya sa property? Ang legatee,
because you cannot pledge what you do not own.
For example, L, naa syay jewelry. L borrowed P100,000 from the
testator. To secure the debt, L pledged his jewelry to the testator.
The testator forgot about his pledge. He said, “I am bequeathing
this property to L.” Is that legacy valid? No, because L owns the
jewelry. But it has the effect of discharging the pledge. So
meaning, naa pa bay utang si L? Naa pa syay utang. Pero kung
dili sya kabayad, the testator cannot proceed against the jewelry
at a public auction. Kay collateral man ang jewelry. So unsecured
debt na sya.
ARTICLE 937. A generic legacy of release or remission of
debts comprises those existing at the time of the execution
of the will, but not subsequent ones. (872)
So we discussed this also. Because again, this will amount to
after-acquired property. That’s why the Legacy of Remission or
Legacy of Credit will be limited only to the value existing at the
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
time of death but not including those which are added after the
execution of the will. But if there are deductions after the
execution of the will, then the net amount remaining at the time of
death.
So again, kung payments, i deduct. Kung additional debts, dili
sya i add sa Legacy of Remission or Legacy of Credit.
ARTICLE 938. A legacy or devise made to a creditor shall
not be applied to his credit, unless the testator so expressly
declares.
In the latter case, the creditor shall have the right to
collect the excess, if any, of the credit or of the legacy or
devise. (837a)
So here, the legatee is also a creditor. So if a legacy has been
given to the creditor, that is over and above the collectible of the
creditor. Because first, in the settlement of the estate, the debts
of the deceased will have to be paid first. So after that, you
distribute the estate, first to the compulsory heirs, their legitimes,
then the legacies and devises, and then voluntary heirs.
So take note that as long as the testator gives a legacy to the
creditor, it is over and above whatever is payable to the creditor.
Unless, again, the testator says otherwise.
ARTICLE 939. If the testator orders the payment of what he
believes he owes but does not in fact owe, the disposition
shall be considered as not written. If as regards a specified
debt more than the amount thereof is ordered paid, the
excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the
fulfillment of natural obligations. (n)
So here, the testator thought he still owes the creditors. That’s
why he made an allocation of P1,000,000 to C, the creditor,
when in fact he has already paid. So here, the disposition is
considered not written. Take note ha, if that allocation is for the
payment of a debt which he thinks he owes but in fact does not
owe. Because if that is for a legacy, even if wala na syay utang,
ihatag gihapon tung legacy.
For example, naa jud syay utang, “I hereby order the payment of
P1,000,000 to C.” Pero ang utang lang diay niya is P800,000.
So, the excess will not be paid. Only the portion which is due to
the creditor.
ARTICLE 940. In alternative legacies or devises, the choice
is presumed to be left to the heir upon whom the obligation
to give the legacy or devise may be imposed, or the
executor or administrator of the estate if no particular heir is
so obliged.
If the heir, legatee or devisee, who may have been given
the choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating obligations
of the same kind shall be observed, save such modifications
as may appear from the intention expressed by the testator.
So, “Alternative Legacies or Devises”. “I hereby give to A jewelry,
or cellphone, or P50,000.” So alternative. Not all will be given.
Any one of those things. Who will choose which property or thing
will be delivered? The law says, ”It is presumed to be left to the
heir upon whom the obligation to give the legacy or devise may
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
be imposed, or the executor or administrator of the estate if no
particular heir is so obliged.” So that is the rule with respect to
who has the right of choice.
Second paragraph, kunwari ang heir, who has the obligation to
make a choice, dies, so that obligation will be transmitted to his
heirs. So sila na ang mag-choose kung unsa ang ihatag. Once
the choice is made, it is already irrevocable. So that is for
alternative legacy or devise.
ARTICLE 941. A legacy of generic personal property shall be
valid even if there be no things of the same kind in the
estate.
A devise of indeterminate real property shall be valid
only if there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of superior
quality. (875a)
Take note here of the distinction between a legacy of a generic
personal property and devise of generic real property.
When we say “generic”, it is only indicated as to its kind. “I
hereby give to A a car.” So what car? It depends upon the one
who has the right of choice or the executor or administrator. “I
hereby give to A a 10 hectare land”. That is generic because it is
not specified which particular land.
Now, if there is no car in the estate and the testator gave to A a
car. Is that valid? Yes. The law says that it is valid even if there is
no car in the estate.
But if the testator says 10-hectare land to B. Is it valid? And then
wala diay land ang estate. Bisag isa a kaang na land wala. Is that
valid? No. The law says it is not valid. It is valid only if there is a
land in the estate. Kung wala, it is not valid. So the devisee
cannot demand for the delivery of any parcel of land.
So that’s the difference between a generic legacy of personal
property and a generic devise of real property.
ARTICLE 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. (876a)
So I don’t think this is so complicated noh? The one who has the
right of choice may choose whichever he prefers. Although of
course, he may not choose something which is not among the
choices given.
How about as to the quality? Well, if the quality is not stated, it is
the one of medium quality. The one obliged to deliver cannot
choose a superior or inferior quality.
ARTICLE 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.
We discussed this before, if he died before having made a
choice, that right will pass on to his heirs.
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
ARTICLE 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 or during his lifetime used to give the
legatee a certain sum of money or other things by way of
support, the same amount shall be deemed bequeathed,
unless it be markedly disproportionate to the value of the
estate. (879a)
Just take note here how long the legacy will last. If it is a Legacy
for Education, it may be until the legatee is of age or even
beyond the age of majority.
It’s really hard to support education. (It is up until) when the child
becomes of age or even beyond 18, as long as it is necessary to
finish some professional, vocational or general course.
ARTICLE 945. If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the legatee may
petition the court for the first installment upon the death of
the testator, and for the following ones which shall be due at
the beginning of each period; such payment shall not be
returned, even though the legatee should die before the
expiration of the period which has commenced. (880a)
When can the legatee demand for the periodical pension for the
monthly or weekly allowance? The law says, for the first
installment upon the death of the testator the legatee may
petition the court, and for the following ones which shall be due
at the beginning of each period.
Take note here, even if the law says “for the first installment,
upon the death of the testator”, there is a condition – that the will
where the legacy is embodied shall first be probated. Because a
legacy, finds support or existence in a valid will. So if the will
where the legacy is embodied is not valid in the first place, we
cannot give that legacy. And remember, as we have discussed
before, you cannot use the will as a foundation of any right
unless the will has been probated. So the will must first be
probated.
ARTICLE 946. If the thing bequeathed should be subject to a
usufruct, the legatee or devisee shall respect such right until
it is legally extinguished. (868a)
So if the thing is subject to a usufruct, what is the effect? If the
testator dies and he has a parcel of land and he devised that
specific land to D, however, in the meantime, that land is subject
to a usufruct with U? Here, upon the death of the testator, what
will happen? The land will be given to D, the devisee. How about
the usufruct? Should the usufruct be extinguished? Should the
thing be freed from the usufruct? The law says no. The thing will
pass on to the heir together with the usufruct until the usufruct is
legally extinguished.
This is related to Article 934, which we discussed before, that
any other charge, perpetual or temporary, shall pass on to the
heirs. The estate has no obligation has no obligation to free the
thing from that burden. Ang obligation lang sa estate is to free
the thing from a pledge or mortgage. Any other charge, walay
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
obligation. Like I said, bahala na si heir or devisee kung unsay
mahitabo sa land. The same thing with usufruct because it is not
a pledge or mortgage, so it will pass on to the heirs. Although if
you remember, the general rule in usufruct, upon the death of
either party, the usufruct is extinguished. That is the general rule.
Although the parties can provide na the usufruct shall subsist
regardless of the death of either parties. So here, the usufruct will
be assumed by the heir to whom the property was passed on as
devise. It will not be extinguished.
ARTICLE 947. The legatee or devisee acquires a right to the
pure and simple legacies or devises from the death of the
testator, and transmits it to his heirs. (881a)
Here, the legacy or devise is pure and simple. Meaning, there is
no condition attached, there is no term or period, there is even no
mode attached like in a modal institution. So there is no condition
attached or burden whatsoever. The law says, the rights are
transmitted from the moment of the death of the testator.
Although again, the will has to be probated before the legatee
may demand for the delivery of the thing.
ARTICLE 948. If the legacy or device is of a specific and
determinate thing pertaining to the testator, the legatee or
devisee acquires the ownership thereof upon the death of
the testator, as well as any growing fruits, or unborn
offspring of animals, or uncollected income; but not the
income which was due and unpaid before the latter's death.
From the moment of the testator's death, the thing
bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and shall
be benefited by its increase or improvement, without
prejudice to the responsibility of the executor or
administrator. (882a)
So here, the legacy or devise is specific or determinate. “I hereby
give to A my land in Matina, Davao City covered by Certificate of
Title No. 12345.” So it is specific even if it is also a devise. What
is the rule? Even if it is a legacy or devise as long as it is
specific? The law says, upon the death of the testator, the
legatee or devisee acquires the property, there’s no question.
How about the fruits? The income? The law says,
1. “as well as any growing fruits” katung wala pa na
harvest, naa pa nagbitay sa sanga;
2. “or unborn offspring” so kunwari naghatag sya ug baka
unya pagkamatay kay buntis pa ang baka, manganak
man jud na sya eventually unless ma-abort (hahaha),
so insay tag-iya sa baka na gi-anak? Si legatee na. As
long as pagkamatay sa testator, naa na siya sa tiyan sa
gi bequeath na cattle,
3. “or uncollected income; but not the income which was
due and unpaid before the latter’s death.” Income
which accrued upon the death or after the death of the
testator which is still uncollected. Because if the income
accrued before the death of the testator, like again if
the testator bequeathed a building which is being
rented out, and upon the death, diba gi-exam nako ni
sa inyuha? Layo na diay kayo ni noh?, of the testator,
after the death, due na sya pero wala pa na collect. So
accrued, meaning, already earned but not yet collected.
So nag accrue sya before the death, dili sya apil sa
devise, it will go to the estate. That’s why “but not the
income which was due and unpaid before the latter’s
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
death.” But at the time of death, because the devisee or
legatee already owns the property, then he also bears
the risk of loss, and also the improvements. So you
have the saying Res Perit Domino, “owner bears the
loss”, as well as the benefits or the improvements.
So you can relate this to Article 781 and 793.
ARTICLE 949. If the bequest should not be of a specific and
determinate thing, but is generic or of quantity, its fruits and
interests from the time of the death of the testator shall
pertain to the legatee or devisee if the testator has expressly
so ordered. (884a)
So unlike Article 948, here, the legacy or devise is generic or
indeterminate. “I hereby give to D a parcel of land” and there are
several lands in the estate. That is valid. But can D demand the
fruits and the income? Because in the first place, prior to
delivery, wala sya kabalo didto kung asa ang ihatag. For
example the testator has productive and barren lands.
Halimbawa ang gi deliver sa iya unproductive? He cannot gain
the income before the delivery, income which accrued from the
time of death until delivery. Again, he did not know at that time
kung kato ba jud ang ihatag sa iyaha na land.
So this right to the fruits, the unborn offspring, the uncollected
income, will apply only if the legacy or devise is specific.
ARTI LE 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 a part of the estate;
(6) All others pro rata. (887a)
Now under Article 950, we have here an enumeration on how to
satisfy certain legacies and devises. Here, we are talking of the
free portion and the free portion is not sufficient to cover all the
legacies and devises. So we have to make prioritizations.
Remember the acronym Re-P-S-E-S-A. So:
Re – Remuneratory legacies or devises;
P – Preferential legacies or devises;
S – Support;
E- Education; and
S – Specific legacies or devise;
A – All others.
So again, unahon nato ug satisfy ang remuneratory legacies.
What are remuneratory legacies? Those are legacies or devises
which are ordered by the testator to be paid for services which do
not constitute recoverable debts. Gusto lang niya ihatag.
Preferential, that’s easy. Kung muingon sya ug “preferred” or
“prioritized”. It’s second in the order.
Support, in your Family Code, those which are required for food,
shelter, subsistence, etc. But we exclude education.
Because education is number 4. This is fourth in priority.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
Kung na satisfy na ni sila, we have specific legacies or devises
which form part of the estate. Because even though it is specific
legacy or devise, if di sya apil sa estate, it does not belong to the
5th priority, it will belong to number 6.
Number 6 is all others pro-rata. So this is how we satisfy.
As to pro-rating, you know again, you know how to pro-rate. (May
solving sa board pero wala ginaingun ni Ma’am ang figures.L)
Okay Mr. Licayan (Favorite student ni Ma’am..hahaha), how do
you apportion? (Jebon solves on the board and tama daw ana si
Ma’am. So just ask Jebon how to apportion if you do not know
how to J).
So that is how you pro-rate. You cannot give everything because
kulang na ang free portion. Kinsa may dili pa kabalo mag pro-
rate diri? (Ask Jebon!)
If you remember, under Article 911, we have a similar problem,
but there, we have donations, then we have legacies and
devises. Under 911, if we have two or more donations, we
prioritize the ones made earlier, then the next. Then kung naa
pay nabilin, then naay declared by the testator to be preferred,
then kato. Then all others pro-rata. That’s in 911.
Then here’s 950. So how do we know if we are to use 911 or
950? It’s just simple, if the testator made donations inter vivos
and left compulsory heirs, so duha ka conditions, we follow
911. Because, if there are compulsory heirs, all donations shall
be collated that’s why we charge them to the free portion.
But if there are no compulsory heirs, even if there are
donations, we follow Article 950 because if there are no
compulsory heirs, there’s no need for collation of donations.
That’s the distinction.
Summary of when to apply 911 or 950:
Article 911 Article 950
Testator made donations There are no compulsory
inter vivos heirs
There are compulsory
heirs
06 OCTOBER 2016 (1ST PART)
By: Karmela Tongo
ARTICLE 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.
The delivery of the legacy carries with it the accession and
accessories. The law says ‘in the condition in which it may be at
the time of death of the testator’. There might be times when the
delivery would be delayed because you will have to probate the
will. So you only have to consider what is the status and
condition of the thing at the time of death, because that is the
time when there is really transfer of the ownership to the legatee
or devisee.
ARTICLE 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
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016
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.
Just remember that what should be delivered must be the very
same thing which is the subject of the legacy or devise. When
you say ‘thing’ it is the thing itself. For example if it is cash then
you deliver the cash itself. You cannot substitute it.
The expenses for the delivery shall be borne by the heir, legatee
or devisee who is charged with the obligation to deliver, but
without prejudice to the legitime if the heir is a compulsory heir.
ARTICLE 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.
As we have already discussed, although theoretically the transfer
happens upon the death of the decedent or testator, but because
there is a will, the will has to be probated first.
As discussed before, one cannot claim any right based on a will
which is not yet probated. So in the meantime, we have to wait.
The law says ‘the legatee or devisee cannot take possession of
the thing bequeathed upon his own authority.’ There should be
authority from the court.
There might even be times that the legacy or devise cannot be
given at all. For example, if there are several debts, the estate is
insolvent. In that case even if there is a will providing for legacy
and devices, wala na diay because gibayad na tanan sa utang.
In that case, we have to wait before you can demand for the
delivery of the legacy or the devise.
ARTICLE 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.
This refers to one legacy or one devise but it is partly onerous
partly gratituous. When you say onerous, it means that there is a
burden or charge imposed. For example, the testator devised to
A a two-storey house. Sa ground floor, he has the obligation to
make repairs every month while in the second floor wala. So the
law says that the devisee cannot accept only that which is
gratituous and repudiate that which is onerous. He has to accept
both.
But can he repudiate the gratituous and accept the onerous,
based on the tenor of article 954? Actually there is no prohibition.
The prohibition is for the legatee or devisee to accept the
gratuitous and repudiate the onerous. So dili si devisee or
legatee gustog naay burden, gusto siyag ayahay lang, dili na
puwede ingon sa article 954, pero puwede dawaton tong naay
burden and give up the one which is gratituous.
And if he dies before having accepted the legacy or devise then
his heirs can accept or repudiate in his own behalf.
ABAD-ACOSTA-CALATRAVA-DU-GUMBOC-LUMAPAS-MORTEJO-RUYERAS-TONGO
ARTICLE 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. (890a)
This refers to two or more legacies or devises, one is onerous
and the other one is gratituous. So he can accept both or he can
renounce both. But he cannot just accept the gratuitous and
renounce the onerous one. Kung dawaton niya ang walay
burden, dapat dawaton pud niya ang naay burden because that
is really intended by the testator. But if he wants to accept the
onerous and repudiate the gratuitous, it is not prohibited again
under article 955.
ARTICLE 956. If the legatee or devisee cannot or is unwilling
to accept the legacy or devise, or if the legacy or devise for
any reason should become ineffective, it shall be merged
into the mass of the estate, except in cases of substitution
and of the right of accretion. (888a)
What happens if the legatee or devisee refuses to accept the
legacy or devise, or there is something that happened to him so
he can no longer accept it, he predeceases the testator or
become incapacitated.
Now remember the order of priority. Remember I.S.R.A.I.
1. INSTITUTION. As much as possible we have to give
effect to the wishes of the testator. We have to respect
his last wishes, so institution
2. SUBSTITUTION. If the instituted heir cannot accept,
again maybe because of predeceased or incapacity or
repudiation. Then let us consider if he has substitute
(substitution). If there is a substitute then we will give
the repudiated share to the substitute.
3. REPRESENTATION. But if there is no substitute then
let us consider again if the right of representation is
possible. Take note in testamentary succession, it is
not possible because when we say legacy or devise,
we are referring that to the free portion. But in
testamentary succession there is no right of
representation in the free portion. That is not possible.
It can happen in intestate succession.
4. ACCRETION. For example representation is not
possible, then accretion. We have not yet discussed
accretion. But essentially when you say accretion, if the
vacant portion cannot be received by an heir, that
portion will be received by his co-heir. It will go by
accretion.
5. INTESTACY. If accretion is not possible because there
are requisites in accretion and assuming that the
requisites are not met, so the last is intestacy.
Intestacy is the last resort. Testacy is preferred over
intestacy. So that is the order of priority.
ARTICLE 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in
such a manner that it does not retain either the
form or the denomination it had;
(2) If the testator by any title or for any cause alienates
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RD
3 YEAR – MANRESA 2016
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)
These are examples of those instances when the legacy or
devices are revoked by operation of law. We discussed before
the different modes of revocation. One is revocation by operation
of law. We have article 957 as an example. Here, even if it did
not cross the mind of the testator to revoke the legacy or devise,
there was no intention, but because of the acts made in Article
957, the law presumes that there is revocation. So what are
these instances?
1. Transformation- The law says that ‘he transforms the
thing and it no longer retains the form or denomination
that it had.’
For example: The testator bequeathed a bracelet to A. After the
will was executed, mga 2 years after, the testator had the
bracelet converted into a necklace. What happens to the legacy
of the bracelet? Upon the death of the testator can the legatee
claim the necklace now? Can he say “that same necklace was
the bracelet which was bequeathed to me.” He cannot claim that
anymore, because by transforming the thing, the law says that
legacy has already been revoked.
Take note that the transformation may be in the change of name
or denomination. Like in the example, the bracelet is now a
necklace. So the name is already different.
In terms of form, in our example the bracelet, sa kamot siya
siguro nag change iyang hitsura, so necklace na siya, sa neck na
siya. So it is not the same thing anymore. That results to
revocation of the legacy or device.
2. Alienation- so by any title or for any cause the testator
alienates the thing. Take note that Art 957 refers to a
specific thing, legacy or device of a specific thing.
So for example the testator devised to A a parcel of land in
Jacinto Street Davao City covered by TCT-12345. Then two
years after the designation of the will he sold that same land to X.
Later on, na reacquire ni testator ang land. So when he died, that
same land covered by TCT No-12345 still is in the estate of the
testator. Now in the will remember that it was devised to A. Can
A claim the land by way of devise? The law says NO. Because
when the testator alienated that after he made the will, that
alienation has the effect of revoking the legacy or devise. But in
the example it was already reacquired? The law says that ‘even
if it should again belong to the testator’
‘Even if by reason of the nullity of the contract’.. So for example,
the testator after he made the will sold the same land which he
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earlier devised to A. Then the case was filed between the
testator and X and it was found out that the sale was null and
void because of lack of consideration. Nabalik kay testator ang
land. Still the devise is revoked because of the alienation. The
law presumes when the testator alienated it or conveyed it, sold
it, donated it, whatever, he had no intention to honor the legacy
or devise.
What If that same deed of sale was annulled? Declaration of
nullity is different from annulment. It was annulled because of
vitiated consent. Maybe because there was fraud, violence,
intimidation, undue influence, etc. so annulled ang deed of sale.
So nabalik na siya sa estate ni testator because the testator’s
consent was actually vitiated, that is why he sold the land to X.
Can A claim the land as devise in that case? This time YES.
Because the alienation which is contemplated under no.2 is
voluntary. When he sold it because his consent was vitiated, it is
not voluntary. That is the reason why the sale is annulled. It is
the same thing as involuntary like it was foreclosed. It is
involuntary. Again the alienation here is voluntary.
Another example. The testator sold the land to X under a pacto
de retro sale, a sale with a right to repurchase. So he has two
years to repurchase the land. True enough within two years he
was able to repurchase the land. When he died the land was
already in his estate. Can A the devisee claim that land? Yes. It
is written in Art 957(2). Unless the reacquisition shall have been
effected by virtue of the exercise of the right of repurchase. Even
if the testator alienated the property but he reserved the right to
repurchased and he excercised that right, the law does not
presume revocation here. Why? Because by reserving the right
of repurchase, the law sees it as a manifestation of the intention
of the testator to really honor the legacy or devise, kay gi reserve
man niya ang right of repurchase. Ofcourse dapat na repurchase
pud niya kay kung wala, wala napud na sa iyang estate, so it
cannot be claimed by the devisee or the legatee.
What if it is a deed of absolute sale executed by the testator in
favour of X after he devised the land to A. So it is a Deed of
Absolute Sale with no right of repurchase. Then 2 years after the
testator won the lotto. So daghan siyag kwarta tapos nag offer
siya kang X to buy back the property. Nisugot pud si X. So gipalit
ug usab ni testator ang land and upon his death the land is still in
his estate. Can the devisee claim the land since it was
repurchased by the testator? NO. Because in the first place,
when the testator sold the land there was no reservation on the
right of repurchase. It was an absolute sale. It just so happened
that he bought it back two years after he sold it. But still the
testator sold it absolutely without reserving any right of
repurchase that already had the effect of revoking the legacy or
devise. So that is under number 2.
3. Loss of the thing.
The thing bequeathed or devised is totally lost. When? Either
during the life time of the testator. So kung during the lifetime of
the testator nawala iyang gi bequeathed na bracelet, then you
cannot demand to the estate to give you another bracelet. So the
legacy there is revoked. Or even after the death of the testator
without the fault on the part of the heir charged with the
obligation to deliver the legacy or devise.
Again, it should refer to a specific thing, because if it is generic,
for example the testator said ‘I hereby give to A a bracelet’ not a
specific bracelet and then daghan ang bracelet sa estate and
then naay nawala. The obligation to deliver the bracelet is not
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Atty. Lielanie Yang-yang Espejo, CPA
RD
3 YEAR – MANRESA 2016

extinguished because you can just deliver any bracelet. That is rule is proximity. So when it is ‘to all those who are entitled
under number 3. thereto’ pertains to legal heirs in legal succession.

The law also says that the person obliged ‘to pay the legacy or So there we follow the rule on proximity. Those who are in the
devise shall be liable for eviction if the thing bequeathed should direct line are favoured over those who are in the collateral line
not have been determinate as to its kind.’ and those who are in the descending line are favoured over
those in the ascending line and they have the right of
For example: The testator bequeathed to A a car. Diba a car is representation.
generic. H is the heir charged to deliver the car to the legatee A,
and he delivered the car. But then naa diay problema sa car - END -
because it is being claimed by another person. So the legatee
was eventually dispossessed of the car. The law says that there
is liability for eviction. Meaning, the heir has to replace it with
another car. That is the situation if the legacy or devisee is “There is no royal road to anything, one thing at a time, all things
generic. Because again if it is specific, the heir has no choice, he in succession. That which grows fast, withers as rapidly.
has to deliver the very thing which is devised or bequeathed. So That which grows slowly, endures.”
he cannot be liable for eviction because it is not his choice to - Josiah Gilbert Holland
deliver that particular car.
ARTICLE 958. A mistake as to the name of the thing
bequeathed or devised, is of no consequence, if it is
possible to identify the thing which the testator intended to
bequeath or devise. (n)

‘A mistake as to the name of the thing bequeathed or devised..’

So it doesn’t matter, it is still valid. For example if the testator will
say “I will give to A my anklet” but it was actually a bracelet, but
he uses it as an anklet. So as long as it can be identified, the
legacy or devise will still be valid.

ARTICLE 959. A disposition made in general terms in favor

of the testator's relatives shall be understood to be in favor
of those nearest in degree. (751)

What If the institution states ‘I hereby give ¼ of my estate to my

relatives’ So who are these relatives being referred here? So we
are talking about the testator’s relatives. When you say relatives,
the law says under legal succession who are the relatives of the
testator, who are his legal heirs? When it comes to direct line,
ascending and descending line there is no limit. When it comes
to collateral line, only up to the fifth degree of consanguinity,so
blood relation, dili puwede ang by affinity.

So here these are the relatives of the testator? Will all of them
inherit? Will all of them share?

In Article 959, there is only one rule here which applies, the rule
on proximity. The nearer relatives excludes those who are far.
There is no right of representation here. You cannot represent.
Striclty jud, proximity. Because of that, the near relatives exclude
those who are far. So there is no right of representation.

If you still remember our discussion on reserva troncal, those

who are in the descending line are favoured over those who are
in the ascending line. Those who are in the direct line are
favoured over those who are in the collateral line. But here there
is only one rule: the rule on proximity. The near relatives exclude
those who are far.
Now, there is a question. What if the testator will said “I hereby
give ¼ of my estate to all those who are entitled thereto” would
that be the same as ‘in favour of his relatives’ in Article 959?

When you say ‘to all those who are entitled thereto’ that can be
interpreted as the legal heirs, legal succession. So there, we do
not follow the rule in Article 959 because in Article 959 the only

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