Transmission of Properties, Rights, and Obligations

INOCENCIO vs. HOSPICIO DE SAN JOSE (G.R. No. 201787, September

25, 2013)
Pre-Bar Review Tips
• The death of a party does not excuse nonperformance of a
SUCCESSION contract, which involves a property right, and the rights and
obligations thereunder pass to the successors or representatives of
the deceased. Similarly, nonperformance is not excused by the
death of the party when the other party has a property interest in
the subject matter of the contract.” Section 6 of the lease contract
provides that “[t]his contract is nontransferable unless prior
consent of the lessor is obtained in writing.” Section 6 refers to
transfers inter vivos and not transmissions mortis causa. What
Section 6 seeks to avoid is for the lessee to substitute a third party
in place of the lessee without the lessor’s consent.

• GENATO vs. BAYHON (G.R. No. 171035, August 24, 2009)

• We now go to the ruling of the appellate court extinguishing the

obligation of respondent. As a general rule, obligations derived
from a contract are transmissible. Article 1311, par.1 of the Civil
Code provides: • "ART. 774. — Succession is a mode of acquisition
• Contracts take effect only between the parties, their assigns and by virtue of which the property, rights and
heirs, except in case where the rights and obligations arising from
the contract are not transmissible by their nature, or by stipulation obligations to the extent of the value of the
or by provision of law. The heir is not liable beyond the value of the inheritance, of a person are transmitted through
property he received from the decedent.
• In Estate of Hemady v. Luzon Surety Co., Inc., the Court, through his death to another or others either by his will or
Justice JBL Reyes, held: by operation of law."
• While in our successional system the responsibility of the heirs for
the debts of their decedent cannot exceed the value of the • "ART. 776. — The inheritance includes all the
inheritance they receive from him, the principle remains intact that property, rights and obligations of a person which
these heirs succeed not only to the rights of the deceased but also
to his obligations. Articles 774 and 776 of the New Civil Code (and are not extinguished by his death." (Emphasis
Articles 659 and 661 of the preceding one) expressly so provide, supplied)
thereby confirming Article 1311 already quoted.

MAGNIFICUS JURIS 1 of 40.

• The Court proceeded further to state the general rule:
• Under our law, therefore, the general rule is that a
party's contractual rights and obligations are
transmissible to the successors. The rule is a
consequence of the progressive "depersonalization" of
patrimonial rights and duties that, as observed by
Victorio Polacco, has characterized the history of these
institutions. From the Roman concept of a relation
from person to person, the obligation has evolved into
a relation from patrimony to patrimony, with the
persons occupying only a representative position,
barring those rare cases where the obligation is strictly
personal, i.e., is contracted intuitu personae, in
consideration of its performance by a specific person
and by no other. The transition is marked by the
disappearance of the imprisonment for debt.
(Emphasis supplied)
• The procedure in vindicating monetary claims involving a
defendant who dies before final judgment is governed by
Rule 3, Section 20 of the Rules of Civil Procedure, to wit:
• When the action is for recovery of money arising from
contract, express or implied, and the defendant dies before
entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed
but shall instead be allowed to continue until entry of final
judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided
in these Rules for prosecuting claims against the estate of a
deceased person.
• Pursuant to this provision, petitioner’s remedy lies in filing
a claim against the estate of the deceased respondent.
MAGNIFICUS JURIS 2 of 40.
• The loan in this case was contracted by
respondent. He died while the case was pending
before the Court of Appeals. While he may no
longer be compelled to pay the loan, the debt
subsists against his estate. No property or portion
of the inheritance may be transmitted to his heirs
unless the debt has first been satisfied. Notably,
throughout the appellate stage of this case, the
estate has been amply represented by the heirs
of the deceased, who are also his co-parties in
Civil Case No. Q-90-7012.
• WHEN IS A PERSON CONSIDERED DEAD FOR THE
PURPOSE OF SUCCESSION?
Death may either be:
• Actual death
• Presumed death
1. Ordinary presumption - after 10 years or 5 years if the
person disappeared after the age of 75 years old (Article 390,
NCC)
2. Qualified or extraordinary presumption – after 4 years if
the disappearance was under danger of death (Article 391,
NCC)
– When is the moment of death counted?
– Ordinary presumption – after 5 or 10 years
– Extraordinary presumption – from the date of disappearance
• However, the rule on presumptions should yield to the rule on
preponderance of evidence. If there is evidence pointing to
the fact that the person is alive, then he cannot be presumed
dead despite the fact that he has not been heard of. Or if
there is evidence that the person is really dead, then there is
no need to wait for the periods under Articles 390 and 391 to
lapse before a person may be declared dead.
DONATION INTERVIVOS vs. DONATION MORTIS CAUSA
DEL ROSARIO vs. FERRER (G.R. No. 187056, September 20, 2010)
• On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a
document entitled Donation Mortis Causa in favor of their two children, Asuncion
and Emiliano, and their granddaughter, Jarabini (daughter of their predeceased
son, Zoilo) covering the spouses 126-square meter lot and the house on it in
Pandacan, Manila in equal shares. The deed of donation reads:
• It is our will that this Donation Mortis Causa shall be irrevocable and shall be
respected by the surviving spouse.
• It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales will continue
to occupy the portions now occupied by them.
• It is further our will that this DONATION MORTIS CAUSA shall not in any way affect
any other distribution of other properties belonging to any of us donors whether
testate or intestate and where ever situated.
• It is our further will that any one surviving spouse reserves the right, ownership,
possession and administration of this property herein donated and accepted and
this Disposition and Donation shall be operative and effective upon the death of
the DONORS.
MAGNIFICUS JURIS 3 of 40.
• EASTERN vs. LUCERO (124 SCRA 326)
• HELD: It is undisputed that the Company received 3 radio messages
from Capt. Lucero. There is thus enough evidence to show the
circumstances attending the loss and disappearance of the M/V
Eastern Minicon and its crew. The foregoing facts are sufficient to
lead to a moral certainty that the vessel had sunk and that the
persons aboard had perished with it. Upon this premise, the rule on
presumption of death under Article 391 (1) of the Civil Code must
yield to the rule of preponderance of evidence. Where there are
facts, known or knowable, from which a rational conclusion can be
made, the presumption does not step in, and the rule of
preponderance of evidence controls. Thus, the complaint of Mrs.
Lucero was dismissed and instead, she should receive the death
benefits.
• The deed had no attestation clause and was witnessed by only two persons. The
named donees, however, signified their acceptance of the donation on the face of
the document.
Held: That the document in question in this case was captioned Donation Mortis
Causa is not controlling. This Court has held that, if a donation by its terms is inter
vivos, this character is not altered by the fact that the donor styles it mortis causa. In
Austria-Magat v. Court of Appeals, the Court held that irrevocability is a quality
absolutely incompatible with the idea of conveyances mortis causa, where revocability
is precisely the essence of the act. A donation mortis causa has the following
characteristics:
1. It conveys no title or ownership to the transferee before the
death of the transferor; or, what amounts to the same thing, that the transferor
should retain the ownership (full or naked) and control of the property while alive;
2. That before his death, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for indirectly by
means of a reserved power in the donor to dispose of the properties conveyed; and
3. That the transfer should be void if the transferor should survive
the transferee.
• The Court thus said in Austria-Magat that the express irrevocability
of the donation is the distinctive standard that identifies the
document as a donation inter vivos. Here, the donors plainly said
that it is our will that this Donation Mortis Causa shall be
irrevocable and shall be respected by the surviving spouse. The
intent to make the donation irrevocable becomes even clearer by
the proviso that a surviving donor shall respect the irrevocability of
the donation. Consequently, the donation was in reality a donation
inter vivos.
• The donors in this case of course reserved the right, ownership,
possession, and administration of the property and made the
donation operative upon their death. But this Court has consistently
held that such reservation (reddendum) in the context of an
irrevocable donation simply means that the donors parted with
their naked title, maintaining only beneficial ownership of the
donated property while they lived.
• Notably, the three donees signed their acceptance of the donation,
which acceptance the deed required. This Court has held that an
acceptance clause indicates that the donation is inter vivos, since
acceptance is a requirement only for such kind of donations.
Donations mortis causa, being in the form of a will, need not be
accepted by the donee during the donors lifetime.
VILLANUEVA vs. SPOUSES BRANOCO (G.R. No. 172804,
January 24, 2011)
• Petitioner Gonzalo Villanueva (petitioner), here
represented by his heirs, sued respondents, spouses Froilan
and Leonila Branoco (respondents) to recover a 3,492
square-meter parcel of land in Amambajag, Culaba, Leyte
(Property). Petitioner claimed ownership over the Property
through purchase in July 1971 from Casimiro Vere (Vere),
who, in turn, bought the Property from Alvegia Rodrigo
(Rodrigo) in August 1970. Petitioner declared the Property
in his name for tax purposes soon after acquiring it. In their
Answer, respondents similarly claimed ownership over the
Property through purchase in July 1983 from Eufracia
Rodriguez (Rodriguez) to whom Rodrigo donated the
Property in May 1965. The two-page deed of donation
(Deed), signed at the bottom by the parties and two
witnesses, reads in full:
MAGNIFICUS JURIS 4 of 40.
• Finally, as Justice J. B. L. Reyes said in Puig v.
Peaflorida,[16] in case of doubt, the conveyance
should be deemed a donation inter vivos rather
than mortis causa, in order to avoid uncertainty
as to the ownership of the property subject of
the deed.
• Given that the donation in this case was
irrevocable or one given inter vivos, Leopoldos
subsequent assignment of his rights and interests
in the property to Asuncion should be regarded
as void for, by then, he had no more rights to
assign. He could not give what he no longer had.
Nemo dat quod non habet.
KNOW ALL MEN BY THESE PRESENTS:
That I, ALVEGIA RODRIGO, Filipino, of legal age, widow of the late Juan
Arcillas, a resident of Barrio Bool, municipality of Culaba, subprovince of
Biliran, Leyte del Norte, Philippines, hereby depose and say:
That as we live[d] together as husband and wife with Juan Arcillas, we begot
children, namely: LUCIO, VICENTA, SEGUNDINA, and ADELAIDA, all surnamed
ARCILLAS, and by reason of poverty which I suffered while our children were
still young; and because my husband Juan Arcillas aware as he was with our
destitution separated us [sic] and left for Cebu; and from then on never cared
what happened to his family; and because of that one EUFRACIA RODRIGUEZ,
one of my nieces who also suffered with our poverty, obedient as she was to
all the works in our house, and because of the love and affection which I feel
[for] her, I have one parcel of land located at Sitio Amambajag, Culaba, Leyte
bearing Tax Decl. No. 1878 declared in the name of Alvegia Rodrigo, I give
(devise) said land in favor of EUFRACIA RODRIGUEZ, her heirs, successors, and
assigns together with all the improvements existing thereon, which parcel of
land is more or less described and bounded as follows:
 1. Bounded North by Amambajag River; East, Benito Picao;
South, Teofilo Uyvico; and West, by Public land; 2. It has an area of
3,492 square meters more or less; 3. It is planted to coconuts now
bearing fruits; 4. Having an assessed value of P240.00; 5. It is now in
the possession of EUFRACIA RODRIGUEZ since May 21, 1962 in the
concept of an owner, but the Deed of Donation or that ownership be
vested on her upon my demise.
That I FURTHER DECLARE, and I reiterate that the land above
described, I already devise in favor of EUFRACIA RODRIGUEZ since May
21, 1962, her heirs, assigns, and that if the herein Donee predeceases
me, the same land will not be reverted to the Donor, but will be
inherited by the heirs of EUFRACIA RODRIGUEZ;
That I EUFRACIA RODRIGUEZ, hereby accept the land above described
from Inay Alvegia Rodrigo and I am much grateful to her and praying
further for a longer life; however, I will give one half (1/2) of the
produce of the land to Apoy Alve during her lifetime.
Respondents entered the Property in 1983 and paid taxes afterwards.
Further –
[4] [T]he specification in a deed of the causes
whereby the act may be revoked by the donor
indicates that the donation is inter vivos, rather
than a disposition mortis causa[;]
[5] That the designation of the donation as
mortis causa, or a provision in the deed to the
effect that the donation is “to take effect at the
death of the donor” are not controlling criteria;
such statements are to be construed together with
the rest of the instrument, in order to give effect
to the real intent of the transferor[;] [and]
(6) That in case of doubt, the conveyance
should be deemed donation inter vivos rather than
mortis causa, in order to avoid uncertainty as to
the ownership of the property subject of the deed.
MAGNIFICUS JURIS 5 of 40.
RULING:
• We examine the juridical nature of the Deed – whether
it passed title to Rodriguez upon its execution or is
effective only upon Rodrigo’s death – using principles
distilled from relevant jurisprudence. Post-mortem
dispositions typically –
(1) Convey no title or ownership to the transferee
before the death of the transferor; or, what amounts to
the same thing, that the transferor should retain the
ownership (full or naked) and control of the property
while alive;
(2) That before the [donor’s] death, the transfer
should be revocable by the transferor at will, ad nutum;
but revocability may be provided for indirectly by means
of a reserved power in the donor to dispose of the
properties conveyed;
(3) That the transfer should be void if the
transferor should survive the transferee.
• It is immediately apparent that Rodrigo passed naked title
to Rodriguez under a perfected donation inter vivos. First.
Rodrigo stipulated that “if the herein Donee predeceases
me, the [Property] will not be reverted to the Donor, but
will be inherited by the heirs of x x x Rodriguez,” signaling
the irrevocability of the passage of title to Rodriguez’s
estate, waiving Rodrigo’s right to reclaim title. This transfer
of title was perfected the moment Rodrigo learned of
Rodriguez’s acceptance of the disposition. Rodrigo’s
acceptance of the transfer underscores its essence as a gift
in presenti, not in futuro, as only donations inter vivos need
acceptance by the recipient. Indeed, had Rodrigo wished
to retain full title over the Property, she could have easily
stipulated, as the testator did in another case, that “the
donor, may transfer, sell, or encumber to any person or
entity the properties here donated x x x” or used words to
that effect. Instead, Rodrigo expressly waived title over the
Property in case Rodriguez predeceases her.
• Second. What Rodrigo reserved for herself was only the
beneficial title to the Property, evident from Rodriguez’s • Third. The existence of consideration other than the
undertaking to “give one [half] x x x of the produce of the
land to Apoy Alve during her lifetime.” Thus, the Deed’s donor’s death, such as the donor’s love and affection
stipulation that “the ownership shall be vested on to the donee and the services the latter rendered,
[Rodriguez] upon my demise,” taking into account the non-
reversion clause, could only refer to Rodrigo’s beneficial title. while also true of devises, nevertheless “corroborates
the express irrevocability of x x x [inter vivos] transfers.”
• the donor meant nothing else than that she reserved of Thus, the CA committed no error in giving weight to
herself the possession and usufruct of said two parcels of Rodrigo’s statement of “love and affection” for
land until her death, at which time the donee would be
able to dispose of them freely. Rodriguez, her niece, as consideration for the gift, to
underscore its finding.
• Indeed, if Rodrigo still retained full ownership over the
Property, it was unnecessary for her to reserve partial
usufructuary right over it.

• In no less than seven cases featuring deeds of donations styled as
“mortis causa” dispositions, the Court, after going over the deeds,
eventually considered the transfers inter vivos, consistent with the
principle that “the designation of the donation as mortis causa, or a
provision in the deed to the effect that the donation is ‘to take
effect at the death of the donor’ are not controlling criteria [but] x x
x are to be construed together with the rest of the instrument, in
order to give effect to the real intent of the transferor.” Indeed,
doubts on the nature of dispositions are resolved to favor inter
vivos transfers “to avoid uncertainty as to the ownership of the
property subject of the deed.”
• Nor can petitioner capitalize on Rodrigo’s post-donation transfer of
the Property to Vere as proof of her retention of ownership. If such
were the barometer in interpreting deeds of donation, not only will
great legal uncertainty be visited on gratuitous dispositions, this will
give license to rogue property owners to set at naught perfected
transfers of titles, which, while founded on liberality, is a valid mode
of passing ownership. The interest of settled property dispositions
counsels against licensing such practice.
• WHAT LAWS GOVERN THE VALIDITY OF WILLS?
Two kinds of validity:
A. Formal or extrinsic validity – refers to the forms and
solemnities that must be complied with in order to make the
will valid. Forms such as the type of instrument (depending
whether notarial or holographic will), capacity of the testator,
qualifications of witnesses. Extrinsic Validity may be seen
from 2 viewpoints. Time and Place (country)
B. Intrinsic validity – refers to the legality of the provisions
in an instrument, contract or will. EG. Whether or not there
was preterition, whether or not there is invalid disinheritance,
whether or not there is impairment of legitime. May be seen
also from 2 viewpoints: Time and Place (country)

MAGNIFICUS JURIS 6 of 40.

EXTRINSIC VALIDITY FROM THE VIEWPOINT OF TIME
- extrinsic validity of will depends upon the
observance of the law in force at the time the will is
made (Art. 795). The extrinsic validity of will is
measured against the law in force at the time of will
making, not at time of death, not at time of probate.
- Reason: The testator cannot possibly know, and
is not expected to know the laws that will govern in the
future. Hence, it is sufficient that he follows the laws in
force at the time that he makes his will.
INTRINSIC VALIDITY FROM THE VIEWPOINT OF TIME
– The law at the time of the death of the testator or when the succession opens
because it is at that time when the rights are transmitted to the heirs,
devisees or legatees. Clear in the transitory provision of the Civil Code in Art.
2263 and under Art. 774
d. Testator is an alien who executes will abroad: Observe
• law of the place of his residence or domicile – art. 816
• law of his own country or nationality – art. 816
• Philippine Law (NCC) – art. 816
• law of the place where will is executed – art. 17
e. Testator is an alien who executes a will in the Philippines:
Observe
• law of his country or nationality – Art. 817
• law of the place where will is executed (Philippines) – Art.
17
MAGNIFICUS JURIS 7 of 40.
EXTRINSIC VALIDITY FROM THE VIEWPOINT OF PLACE
(COUNTRY)
a. Testator is a Filipino who executes will in the Philippines: Observe
Philippine Laws (NCC) – Art. 17
b. Testator is a Filipino who executes will abroad before the diplomatic
or consular officials of the Republic of the Philippines in a foreign
country: Observe Philippine Laws (NCC) – Art. 17
c. Testator is a Filipino who executes will abroad: Observe
• law of the place where he may be – art. 815
• law of the place where he executes the will – art. 17 (essentially same
with 815 because law of place where he executes the will is the law of
the place where he may be)
• law of the Philippines (because art. 815 merely says “is authorized”
meaning, he principally has to follow Philippine law but is [permitted
or authorized to follow the law of the place where he may be)
INTRINSIC VALIDITY FROM THE VIEWPOINT OF
PLACE/COUNTRY
- Law applicable is the national law of the decedent under
Article 16 of the New Civil Code.
Matters governed by the national law of the decedent:
• order of succession (Art. 16)
• amount of successional rights (Art. 16)
• intrinsic validity of testamentary provision (Art. 16)
• capacity to succeed (Art. 1039)
WHAT ARE THE INSTANCES WHEN PHILIPPINE LAWS
MAY STILL APPLY INSOFAR AS THE INTRINSIC VALIDITY
OF THE WILL OF A FOREIGN NATIONAL IS CONCERNED?
1. Application of the Doctrine of Renvoi (IN RE: TESTATE
ESTATE OF EDWARD E. CHRISTENSEN vs.
GARCIA, G.R. No. L-16749, January 31, 1963)
2. Application of the Doctrine of Processual Presumption
(MICIANO VS. BRIMO, 50 PHIL 867)
WHO CAN EXECUTE WILLS? 18 years old and sound mind
at the time of execution of will
• BALTAZAR vs. LAXA (G.R. No. 174489, April 11,
2012)
Petitioners, through their witness Rosie, claim that
Paciencia was “magulyan” or forgetful so much so
that it effectively stripped her of testamentary
capacity. They likewise claimed in their Motion for
Reconsideration filed with the CA that Paciencia
was not only “magulyan” but was actually suffering
from paranoia. We agree with the position of the
CA that the state of being forgetful does not
necessarily make a person mentally unsound so as
to render him unfit to execute a Will. Forgetfulness
is not equivalent to being of unsound mind.
MAGNIFICUS JURIS 8 of 40.
WHAT ARE THE REQUISITES OF A SOUND MIND? (Art. 799,
New Civil Code)
1. Testator must know the nature of the estate to be
disposed of – must have a sufficient recollection of his
properties and comprehend their kind, character, and
quality in general;
2. Testator must know the proper objects of his bounty –
must be aware of those persons who would naturally be
supposed to have claim upon him;
3. Testator must know the character of the testamentary act
– must understand that he is executing an instrument
which will dispose of his property upon his death and
which he may revoke anytime.
• In this case, apart from the testimony of Rosie pertaining to Paciencia’s
forgetfulness, there is no substantial evidence, medical or otherwise, that
would show that Paciencia was of unsound mind at the time of the
execution of the Will. On the other hand, we find more worthy of
credence Dra. Limpin’s testimony as to the soundness of mind of Paciencia
when the latter went to Judge Limpin’s house and voluntarily executed the
Will. “The testimony of subscribing witnesses to a Will concerning the
testator’s mental condition is entitled to great weight where they are
truthful and intelligent.” More importantly, a testator is presumed to be of
sound mind at the time of the execution of the Will and the burden to
prove otherwise lies on the oppositor. Furthermore, we are convinced
that Paciencia was aware of the nature of her estate to be disposed of, the
proper objects of her bounty and the character of the testamentary act.
As aptly pointed out by the CA:
• A scrutiny of the Will discloses that [Paciencia] was aware of the nature of
the document she executed. She specially requested that the customs of
her faith be observed upon her death. She was well aware of how she
acquired the properties from her parents and the properties she is
bequeathing to LORENZO, to his wife CORAZON and to his two (2)
children. A third child was born after the execution of the will and was not
included therein as devisee.
• WHAT ARE THE PRESUMPTIONS AS TO SOUNDNESS OF MIND?

General Presumption: testator is of sound mind. Burden of proving otherwise

rests upon those who oppose the probate of will. To discharge burden: clear WHAT WILLS ARE RECOGNIZED IN THE PHILIPPINES?
and convincing evidence is required

When testator is presumed of unsound mind:

A. Ordinary or notarial will – requires among other
1. Publicly known to be insane one month or less before making of will; things, an attestation clause, an acknowledgment
2. Judicially declared insane before making a will: In Torres vs. Lopez (48
before a notary public;
Phil 772), the Supreme Court ruled that the fact that the testator was
judicially placed under guardianship does not ipso facto mean that the
testator was of unsound mind;
B. Holograph or holographic will – written entirely,
3. Insanity of a general or permanent nature shown to have existed at one dated, and signed, in the handwriting of the testator.
time is presumed to have continued; - Based on Rules of Court (Rule 131,
Section 3 ee): That a thing once proved to exist continues as long as is No attestation clause or acknowledgement required.
usual with things of that nature;

• Burden of proving otherwise rests upon the proponent of the will

LANGUAGE

WHAT ARE THE FORMALITIES OF NOTARIAL WILLS? - Testator need not be proficient in the language used. It is sufficient that he can
make known his testamentary act through the language used.

1. Must be in writing; - Presumption: knew the language in which the will is written unless the contrary is
2. Must be in a language or dialect known to the testator; proven.
3. Subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by - Hence:
his express direction;
1. No statutory requirement that the will should allege that the language used
4. Attested and subscribed by three or more credible witnesses therein is understood by the testator (Lopez vs. Liboro, 81 Phil 429);
in the presence of the testator and of one another;
5. Must be signed on the left margin by the testator or the 2. No need to state in the attestation clause that the will is written in the language
person requested by him to write his name, and by the instrumental known to the testator;
witnesses on each and every page thereof, except the last;
6. All the pages shall be numbered correlatively in letters placed 3. That the will is in the language known to the testator can be proved by
EXTRINSIC EVIDENCE or even by oral evidence;
on the upper part of each page;
7. There must be an attestation clause; 4. If executed in the language of the locality where testator lives, there is a
8. The will must be acknowledged before a notary public. presumption that testator knows it.

MAGNIFICUS JURIS 9 of 40.

LEANO vs. LEANO (30 Phil 612)
The evidence of record satisfactorily discloses that Cristina Valdes, deceased,
placed her cross against her name attached by some other person to the
instrument offered for probate which purports to be her last will and testament,
in the presence of the three witnesses whose names are attached to the attesting
clause, and that they attested and subscribed the instrument in her presence and
in the presence of each other. WHAT IS THE MEANING OF “IN THE PRESENCE”?

- But cross was not sufficient in:

GARCIA vs. LACUESTA (90 Phil 489) • In the presence with respect to the witnesses does not
Because the cross was not the customary signature of the testator, there should necessarily require actually seeing, but possibility of seeing or
have been a statement in the attestation clause that the will was signed by some
other person in behalf of the testator. The absence of this statement invalidated sensing without any physical obstruction.
the will. • Generally Accepted Tests of Presence (Jaboneta vs. Gustillo, 55
HOW ABOUT ELECTRONIC/DIGITAL SIGNATURE UNDER THE ELECTRONIC
Phil 541) :
COMMERCE ACT? 1. Test of Vision
• Not allowed because an e-signature is supposed to be attached to or logically
associated with the e-data message or e-document or any methodology or 2. Test of Position
procedures employed or adopted by a person and executed or adopted by
such a person with the intention of authenticating or approving an e-message 3. Test of Mental Apprehension
(information) or e-document. E-signatures are affixed pursuant to transactions 4. Test of Available Senses
and contracts. E-signature is not a handwritten signature that is scanned or
graphically imprinted on the e-document.

MARAVILLA vs. MARAVILLA (37 SCRA 672) MARGINAL SIGNATURES

It was but natural that witness Mansueto should be positive about his own signature,
since he was familiar with it. He had to be less positive about Digna Maravilla's
(testator) signature since he could not be closely acquainted with the same: for aught
the record shows, the signing of the will was the only occasion he saw her sign; he had
no opportunity to study her signature before or after the execution of the will.
Furthermore, he witnessed Digna's signing not less than fourteen years previously. To
demand that in identifying Digna's signature Mansueto should display a positiveness
equal to the certainty shown by him in recognizing his own, exceeds the bounds of the
reasonable. That Mansueto, Hernaez and Buenaflor, together with the testatrix and
the lawyer, sat next to one another around one table when the will was signed is
clearly established by the uncontradicted testimony of both attorney Villanueva and
Herminio Maravilla; and that detail proves beyond doubt that each one of the parties
concerned did sign in the presence of all the others. It should be remembered, in this
connection, that the test is not whether a witness did see the signing of the will but
whether he was in a position to see if he chose to do so. If testator is blind, enough
that signing or action is within the range of the other senses like hearing, touch, etc.,
as long as testator realizes what is being done (TEST OF AVAILABLE SENSES)
ICASIANO vs. ICASIANO (11 SCRA 720)
The original of the will consisted of 5 pages but while signed at the end of each and every page, it
did not contain the signature of one of the attesting witnesses on page 3 thereof, due to the
simultaneous lifting of two pages in the course of the signing although the duplicate copy was
signed by the testatrix and the attesting witnesses in each and every page.
HELD: The law should not be so strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she had no control, where
the purpose of the law is to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record
attests to the full observance of the statutory requisites.
WHAT MATTERS SHOULD BE STATED IN THE ATTESTATION CLAUSE?
1. THE NUMBER OF PAGES USED UPON WHICH THE WILL IS WRITTEN;
2. IF THE TESTATOR CAUSED SOME OTHER PERSON TO WRITE HIS NAME, THAT IT WAS
UNDER HIS EXPRESS DIRECTION;

• Does not matter that witnesses signed ahead of or after the testator as long as
signing is sufficiently contemporaneous and made on one occasion (same time and
place) and as part of one single transaction (Gabriel vs. Mateo, 51 Phil 216).
3. THE SIGNING BY THE TESTATOR OR BY THE PERSON REQUESTED BY HIM, WAS IN THE
PRESENCE OF THE INSTRUMENTAL WITNESSES;
4. THAT THE INSTRUMENTAL WITNESSES WITNESSED AND SIGNED THE WILL AND ALL
THE PAGES THEREOF IN THE PRESENCE OF THE TESTATOR AND OF ONE ANOTHER.

MAGNIFICUS JURIS 10 of 40.

AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)
The Petitioner argues that the requirement under Article 805 of the Civil Code that
“the number of pages used in a notarial will be stated in the attestation clause” is
merely directory, rather than mandatory, and thus susceptible to what he termed as
“the substantial compliance rule.” As admitted by petitioner himself, the attestation
clause fails to state the number of pages of the will. There was an incomplete attempt
to comply with this requisite, a space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank was never filled in; hence, the
requisite was left uncomplied with.
HELD: The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809 (substantial compliance). The
purpose of the law in requiring the clause to state the number of pages on which the
will is written is to safeguard against possible interpolation or omission of one or some
of its pages and to prevent any increase or decrease in the pages. The failure to state
the number of pages equates with the absence of an averment on the part of the
instrumental witnesses as to how many pages consisted the will, the execution of
which they had ostensibly just witnessed and subscribed to. Following Caneda, there
is substantial compliance with this requirement if the will states elsewhere in it how
many pages it is comprised of, as was the situation in Singson and Taboada. However,
in this case, there could have been no substantial compliance with the requirements
under Article 805 since there is no statement in the attestation clause or anywhere in
the will itself as to the number of pages which comprise the will.
TABOADA vs. ROSAL (118 SCRA 195, G.R. NO. L-36033,
November 5, 1982)
The attestation clause failed to state the number of pages
used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from
the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains the
entirety of the testamentary dispositions is signed by the
testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is
marked as "Pagina dos" comprises the attestation clause and
the acknowledgment. The acknowledgment itself states that
"This Last Will and Testament consists of two pages including
this page."
MAGNIFICUS JURIS 11 of 40.
MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE S.
LOPEZ RICHARD B. LOPEZ (G.R. No. 189984, November 12, 2012)
While the acknowledgment portion stated that the will consists of 7 pages including the page on
which the ratification and acknowledgment are written, it was observed that the will has 8 pages
including the acknowledgment portion.
HELD:
The law is clear that the attestation must state the number of pages used upon which the will is
written. The purpose of the law is to safeguard against possible interpolation or omission of one or
some of its pages and prevent any increase or decrease in the pages. While Article 809 allows
substantial compliance for defects in the form of the attestation clause, Richard likewise failed in
this respect. The statement in the Acknowledgment portion of the subject last will and testament
that it "consists of 7 pages including the page on which the ratification and acknowledgment are
written" cannot be deemed substantial compliance. The will actually consists of 8 pages including
its acknowledgment which discrepancy cannot be explained by mere examination of the will itself
but through the presentation of evidence '. On this score is the comment of Justice J.B.L. Reyes
regarding the application of Article 809, to wit: x x x The rule must be limited to disregarding those
defects that can be supplied by an examination of the will itself: whether all the pages are
consecutively numbered; whether the signatures appear in each and every page; whether the
subscribing witnesses are three or the will was notarized. All these are facts that the will itself can
reveal, and defects or even omissions concerning them in the attestation clause can be safely
disregarded. But the total number and whether all persons required to sign did so in the presence
of each other must substantially appear in the attestation clause, being the only check against
perjury in the probate proceedings.
DISTINGUISH MARGINAL SIGNATURE FROM ATTESTING SIGNATURE?
AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the
will, but not at the bottom of the attestation clause. Is the will valid?
HELD: No. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they
do not appear at the bottom of the attestation clause which after all consists of their averments before the
notary public. Cagro v. Cagro is material on this point. As in this case, “the signatures of the three witnesses to
the will do not appear at the bottom of the attestation clause, although the page containing the same is signed
by the witnesses on the left-hand margin.” While three (3) Justices considered the signature requirement had
been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a
memorandum of the facts attending the execution of the will" required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will,
from the requisite that the will be “attested and subscribed by [the instrumental
witnesses].” The respective intents behind these two classes of signature are distinct
from each other. The signatures on the left-hand corner of every page signify, among
others, that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that the
witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will.
An unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses’ undertakings in the
clause, since the signatures that do appear on the page were directed towards a
wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such
clause. Without diminishing the value of the instrumental witnesses’ signatures on
each and every page, the fact must be noted that it is the attestation clause which
contains the utterances reduced into writing of the testamentary witnesses
themselves. It is the witnesses, and not the testator, who are required under Article
805 to state the number of pages used upon which the will is written; the fact that the
testator had signed the will and every page thereof; and that they witnessed and
signed the will and all the pages thereof in the presence of the testator and of one
another. The only proof in the will that the witnesses have stated these elemental
facts would be their signatures on the attestation clause.
It might be possible to construe the averment as a jurat, even though it does
not hew to the usual language thereof. A jurat is that part of an affidavit
where the notary certifies that before him/her, the document was subscribed
and sworn to by the executor. Ordinarily, the language of the jurat should
avow that the document was subscribed and sworn before the notary public,
while in this case, the notary public averred that he himself “signed and
notarized” the document. Possibly though, the word “ninotario” or
“notarized” encompasses the signing of and swearing in of the executors of
the document, which in this case would involve the decedent and the
instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the
will would nonetheless remain invalid, as the express requirement of Article
806 is that the will be “acknowledged”, and not merely subscribed and sworn
to. The will does not present any textual proof, much less one under oath,
that the decedent and the instrumental witnesses executed or signed the will
as their own free act or deed. The acknowledgment made in a will provides
for another all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not an
empty meaningless act.
MAGNIFICUS JURIS 12 of 40.
WHAT IS AN ACKNOWLEDGMENT BEFORE A NOTARY PUBLIC?
AZUELA vs. CA (G.R. NO. 122880, April 12, 2006)
Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that “every will must be
acknowledged before a notary public by the testator and the witnesses” has also
not been complied with. The importance of this requirement is highlighted by the
fact that it had been segregated from the other requirements under Article 805
and entrusted into a separate provision, Article 806. The non-observance of
Article 806 in this case is equally as critical as the other cited flaws in compliance
with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
“Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
ng Maynila.” By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed
in going before some competent officer or court and declaring it to be his act or
deed. It involves an extra step undertaken whereby the signor actually declares to
the notary that the executor of a document has attested to the notary that the
same is his/her own free act and deed.
The acknowledgment coerces the testator and the
instrumental witnesses to declare before an officer of the law
that they had executed and subscribed to the will as their own
free act or deed. Such declaration is under oath and under
pain of perjury, thus allowing for the criminal prosecution of
persons who participate in the execution of spurious wills, or
those executed without the free consent of the testator. It
also provides a further degree of assurance that the testator is
of certain mindset in making the testamentary dispositions to
those persons he/she had designated in the will. It may not
have been said before, but we can assert the rule, self-evident
as it is under Article 806. A notarial will that is not
acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and
sworn to before a notary public.
ECHAVEZ vs. DOZEN CONSTRUCTION AND
DEVELOPMENT CORPORATION and THE REGISTER OF
DEEDS OF CEBU CITY (G.R. No. 192916, October 11,
2010)
A donation mortis causa must comply with the
formalities prescribed by law for the validity of wills,
“otherwise, the donation is void and would produce no
effect.” Articles 805 and 806 of the Civil Code should
have been applied. The purported attestation clause
embodied in the Acknowledgment portion does not
contain the number of pages on which the deed was
written. Even granting that the Acknowledgment
embodies what the attestation clause requires, we are
not prepared to hold that an attestation clause and an
acknowledgment can be merged in one statement.
CAN THE NOTARY PUBLIC BE ONE OF THE
INSTRUMENTAL WITNESSES?
• No. Because:
1. He cannot acknowledge document before himself. He
cannot split his personality into 2. Case: Cruz vs. Villasor
(November 26, 1973)
2. Function of notary public is to guard against any illegal or
immoral arrangements. Function would be defeated if he
were one of the attesting witnesses because by then he
would be interested in sustaining the validity of the will as it
directly involves himself and the validity of his own act.
MAGNIFICUS JURIS 13 of 40.
That the requirements of attestation and acknowledgment are
embodied in two separate provisions of the Civil Code (Articles
805 and 806, respectively) indicates that the law contemplates
two distinct acts that serve different purposes. An
acknowledgment is made by one executing a deed, declaring
before a competent officer or court that the deed or act is his
own. On the other hand, the attestation of a will refers to the
act of the instrumental witnesses themselves who certify to the
execution of the instrument before them and to the manner of
its execution. Although the witnesses in the present case
acknowledged the execution of the Deed of Donation Mortis
Causa before the notary public, this is not the avowal the law
requires from the instrumental witnesses to the execution of a
decedent’s will. An attestation must state all the details the third
paragraph of Article 805 requires. In the absence of the required
avowal by the witnesses themselves, no attestation clause can
be deemed embodied in the Acknowledgement of the Deed of
Donation Mortis Causa.
WHAT ARE THE ADDITIONAL REQUISITES FOR A
BLIND TESTATOR?
• Reading is twice.
1. Once by one of the subscribing witnesses;
and
2. Once by the notary public before whom the
will was acknowledged
ALVARADO vs. GAVIOLA (226 SCRA 317)
The testatrix was suffering from glaucoma by virtue of which, her
vision on both eyes was only capable of counting fingers at three
(3) feet. She designated a lawyer to draft her notarial will. After
the final draft was completed, the lawyer distributed copies of
the will to the three instrumental witnesses and to the notary
public before whom the will was to be acknowledged. The
lawyer who drafted the will read the will aloud in the presence
of the testarixt, the three instrumental witnesses, and the notary
public. The latter four just silently followed the reading with their
own respective copies previously furnished them. Upon being
asked, the testatrix affirmed that the contents as read
corresponded with her instructions. The signing and
acknowledgment then took place. The probate was contested on
the ground that the reading requirement under Article 808 of
the New Civil Code was not complied with.
HELD:
Article 808 applies not only to blind testators but
also to those who, for one reason or another, are
incapable of reading their wills. Hence, the will
should have been read by the notary public and an
instrumental witness. However, the spirit behind
the law was served though the letter was not.
Although there should be strict compliance with the
substantial requirements of the law in order to
insure the authenticity of the will, the formal
imperfections should be brushed aside when they
do not affect its purpose and which, when taken
into account, may only defeat the testator’s will.

WHAT IS THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE?

• The rule must be limited to disregarding those defects that can be
supplied by an examination of the will itself: Eg. Whether the pages WHAT ARE THE REQUISITES FOR HOLOGRAPHIC
are consecutively numbered, whether the signatures appear in each WILLS?
and every page, whether there are 3 subscribing witnesses, etc.
1. Must be written in a language or dialect
TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO.
147145, JANUARY 31, 2005) known to the testator (Art 804);
• [T]he so-called liberal rule does not offer any puzzle or difficulty, 2. Entirely written by the testator;
nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing 3. Must be dated by him;
line with precision. They do not allow evidence aliunde to fill a
void in any part of the document or supply missing details that 4. Must be signed by him;
should appear in the will itself. They only permit a probe into the
will, an exploration within its confines, to ascertain its meaning or
to determine the existence or absence of the requisite formalities 5. Must be made with animus testandi.
of law. This clear, sharp limitation eliminates uncertainty and ought
to banish any fear of dire results.

MAGNIFICUS JURIS 14 of 40.

CAN THE TESTATOR ADD DISPOSITIONS AFTER HIS SIGNATURE IN A
HOLOGRAPHIC WILL?
• Yes. The additional dispositions must be dated and signed by the
testator. When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a
signature and a date, such date validates the dispositions preceding
it, whatever be the time of prior dispositions.
WHAT IF THE ADDITIONAL DISPOSITION IS WRITTEN BY A THIRD
PERSON?
• If disposition is also signed and dated by the third person, with or without
testator’s consent, disposition is void. It is independent of the will because it
does not have the participation of the testator in the form of his signature.
Will not affect the validity of the will itself. Consider as not written.
• If signed and dated by the testator, whole will is void because by affixing the
testator’s signature and date, the additional dispositions become part of the
will, not independent anymore. In this case, there are portions of the will not
written by the testator. A holographic will must be entirely written, dated and
signed in the hand of the testator. Relate to Article 810.
WHAT IS A JOINT WILL?
• It is one where the same testamentary instrument is made the will
of two or more persons and is jointly executed and signed by them.
It is not necessarily mutual.
• Mutual or reciprocal wills – the separate wills of two persons which
are reciprocal in their provisions, giving the separate property of
each testator to the other. They are executed with a common
intention on the part of the testators irrespective of whether there
is a contract between them, although the contractual element is
often involved. Also called twin will in American law.
• Mutual or reciprocal wills or twin wills may be embodied in
separate instruments or in the same instrument. If in separate
instruments, allowed. Give Example: If in the same instrument,
they become joint wills and are thus prohibited. In this case, they
are called joint and mutual wills.
MAGNIFICUS JURIS 15 of 40.
CAN THE TESTATOR MAKE INSERTIONS, CANCELLATIONS, ERASURES OR
ALTERATIONS IN A HOLOGRAPHIC WILL?
Insertion, cancellation, erasure or alteration in a holographic will is not
prohibited as long as authenticated by full signature of testator.
Reason: To prevent fraud. The execution of will is a personal act of the
testator so it is but natural and logical that he alone can authenticate
whatever correction may be found in the will.
Without authentication: Gen. Rule: Will is valid. Insertions, etc. considered as
not made. Exception: where insertions, etc. affect the essence of the will as
when there is intent to revoke, then whole will is invalidated. Examples:
Kalaw vs. Relova (132 SCRA 237) – there was only one substantial provision
which was altered by substituting the original heir with another heir. The
alteration had no full signature. Held: whole will void because nothing
remains in the will after the alteration invalidated.
Ajero vs. CA (236 SCRA 488, 1994) – effect of unauthorized alterations,
cancellations, or insertions (insertions not authenticated by full signature of
testator). If made on the date, or signature in a holographic will, entire will is
void.
Dela Cerna vs. Potot (12 SCRA 576)
• A joint will was executed by husband and wife in favor of niece.
Husband died first, will was erroneously probated in 1939.
Judgment became final because no appeal was made. Upon the
subsequent death of wife, another petition for probate was made
as far as the estate of wife is concerned. Lower Court declared will
null and void but reversed by the CA on the ground that the decree
of probate in 1939 was conclusive on the due execution of will.
• Held: The decision in 1939 which became final has conclusive effect
as the last will and testament of husband. Although erroneous
because joint wills are not supposed to be allowed, it could no
longer be corrected by reason of its finality. However, that
erroneous allowance should only apply with respect to the estate of
the husband. The finality of the 1939 decree should not extend to
the estate of the wife which was then the one under consideration
considering that a joint will is a separate will of each testator. Upon
the wife’s death, the joint will presented for probate must be
examined and adjudicated de novo (anew).
 WHAT IS THE CONCEPT OF INCORPORATION BY REFERENCE?

• Even if the laws of other countries (Argentina, Brazil, France,
Mexico) allow joint wills and the will is executed in these countries,
still, if it is a Filipino who executes the same, will is still void.
• If a foreigner executes joint wills:
– Abroad - if allowed in the law of place where he resides, or in the
place of his nationality, (art. 816) or in the place of execution (art. 17)
then will is considered valid in the Philippines. If one spouse is a
Filipino, void as to Filipino, valid as to foreigner.
– In the Philippines – valid under art. 817 if executed according to the
law of their country which allows joint wills. But may be argued that
void by reason of public policy that should prevail over Art. 817.
Incorporation by reference is an exception to the general rule that only
documents executed in the form of wills may be admitted to probate.
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 will must be in existence at
the time of the execution of the will;
(2) The will must clearly describe and identify the same, stating among
other things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document
or paper referred to therein; and

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

WHAT LAWS GOVERN THE REVOCATION OF WILLS?

HOW IS REVOCATION EFFECTED?
If made in the Philippines
By implication of law (Revocation by Operation of Law)
- follow Philippine laws regardless of domicile or nationality of By some will, codicil, or other writing executed as provided in case of
the testator. wills (Revocation by a Subsequent Instrument)
- Here, the new instrument must be admitted to probate before it can revoke
the old will
If made outside the Philippines:
Express revocation – when the subsequent instrument has a revocatory
By a non-resident (Filipino or alien) clause revoking the previous will
law of the place where the will was made; Implied revocation – the new will or codicil is completely inconsistent with
the old will
law of the place of domicile
By burning, tearing, cancelling, or obliterating the will with the intention
By a resident (Filipino or alien) of revoking it, by the testator himself, or by some other person in his
i. law of the place of revocation presence, and by his express direction (Revocation by Overt Acts)
ii. law of the place of domicile (Philippines) – intent must concur with overt acts
– overt acts may not be limited to burning, tearing, cancelling, or
National law has no applicability in cases of revocation obliterating because in the case of Roxas vs. Roxas, 48 O.G. 2177, the
The testator must have testamentary capacity at the time of court impliedly allowed crumpling as one of the overt acts provided
revocation there is animo revocandi

MAGNIFICUS JURIS 16 of 40.

WHAT IS THE DOCTRINE OF ABSOLUTE REVOCATION?
A probated new will, although valid, may become inoperative or
ineffective due to the incapacity of the heirs, devisees or legatees.
This fact notwithstanding, the revocation of the previous will remains
effective. The reason is that the revoking will is valid except that it was
rendered inoperative.
WHAT IS THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION?
Where the act or destruction is connected to the making of a will so as
to squarely raise the inference that the testator meant the revocation
of the old would depend 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 is in full force and
effect.
WHAT IS THE PRINCIPLE OF INSTANTER?
If a valid will is expressly revoked by a second will and the second will
is itself revoked, the first will is not revived. Reason: revocation takes
effect immediately because it is not testamentary in character.
WHAT ARE THE BASIC PRINCIPLES IN PROBATE?
1. PROBATE IS MANDATORY
HEIRS OF ROSENDO LASAM vs. UMENGAN (G.R. No.
168156, December 6, 2006)
The presentation of the will for probate is mandatory and
is a matter of public policy. The MTCC and RTC,
therefore, erroneously ruled that petitioners have a
better right to possess the subject lot on the basis of the
purported last will and testament of Isabel Cuntapay,
which, to date, has not been probated. Stated in another
manner, Isabel Cuntapay’s last will and testament, which
has not been probated, has no effect whatever and
petitioners cannot claim any right thereunder.
MAGNIFICUS JURIS 17 of 40.
WHAT IS REPUBLICATION OF WILLS?
- the re-establishment by the testator of a previously revoked will or one invalid for want of
proper execution as to form or for other reasons, so as to give validity to said will.
If a will is void as to form due to non-observance of formalities, the only way to revive the
will is by express republication or republication by re-execution. Meaning, the will must be
executed anew, this time, complying with the formalities.
If a will is void but not as to form, such as when the testator had no testamentary capacity
at the time it was executed, or the will was revoked, republication can be effected by re-
execution or also by implied republication or republication by reference. Here, there is no
need to copy the entire provisions of the old will. Mere reference made in the new will or
codicil to the existence of the old will, suffices.
WHAT IS REVIVAL OF WILLS?
the re-establishment to validity by operation of law of a previously revoked will.
Examples:
* When a valid will is impliedly revoked by a second will, and the second will is itself
revoked, the first will is revived (application of the doctrine of dependent relative
revocation);
* Preterition annuls the institution of heirs. But if the preterited heir dies ahead of the
testator, the institution is revived without prejudice to the right of representation.
Considering that her purported last will and testament has, as
yet, no force and effect for not having been probated, her six
children are deemed to be co-owners of the subject lot having
their respective pro indiviso shares. The conveyances made by
the children of Isabel Cuntapay by her first marriage of their
respective pro indiviso shares in the subject lot to respondent
are valid because the law recognizes the substantive right of
heirs to dispose of their ideal share in the co-heirship and/co-
ownership among the heirs. Contrary to the assertion of
petitioners, therefore, the conveyances made by the children of
Isabel Cuntapay by her first marriage to respondent are valid
insofar as their pro indiviso shares are concerned. Moreover, the
CA justifiably held that these conveyances, as evidenced by the
deed of donation and deed of sale presented by respondent,
coupled with the fact that she has been in possession of the
subject lot since 1955, establish that respondent has a better
right to possess the same as against petitioners whose claim is
largely based on Isabel Cuntapay’s last will and testament which,
to date, has not been probated.
2.ESTOPPEL AND PRESCRIPTION WILL
NOT APPLY IN PROBATE
3.PROBATE IS LIMITED TO THE EXTRINSIC
VALIDITY OF THE WILL
• Matters resolved in probate (Dorotheo vs.
Court of Appeals)
1.Whether the instrument offered for probate is the last
will and testament of the decedent – a question of
identity;
2.Whether the will was executed according to the
formalities required by law – a question of due
execution;
3.Whether the testator had testamentary capacity at the
time of execution – a question of testamentary capacity.
Exceptions:
MORALES vs. OLONDRIZ, ET. AL. (G.R. No. 198994; February 3, 2016)
The remaining question is whether it was proper for the RTC to (1) pass upon the
intrinsic validity of the will during probate proceedings and (2) order the case to
proceed intestate because of preterition.
The general rule is that in probate proceedings, the scope of the court's inquiry is
limited to questions on the extrinsic validity of the will; the probate court will only
determine the will's formal validity and due execution. However, this rule is not
inflexible and absolute. It is not beyond the probate court's jurisdiction to pass upon
the intrinsic validity of the will when so warranted by exceptional circumstances.
When practical considerations demand that the intrinsic validity of the will be passed
upon even before it is probated, the probate court should meet the issue.
The decedent's will does not contain specific legacies or devices and Francisco's
preterition annulled the institution of heirs. The annulment effectively caused the
total abrogation of the will, resulting in total intestacy of the inheritance. The
decedent's will, no matter how valid it may appear extrinsically, is null and void. The
conduct of separate proceedings to determine the intrinsic validity of its testamentary
provisions would be superfluous. Thus, we cannot attribute error - much less grave
abuse of discretion - on the RTC for ordering the case to proceed intestate.
MAGNIFICUS JURIS 18 of 40.
 Hence, probate court no power to pass
upon intrinsic validity or legality of
provisions in the will, such as:
a. legacy is void;
b. invalid disinheritance;
c. certain person has no right to inheritance;
d. impairment of legitime;
e. filiation;
f. title to property.
CAMAYA vs. PATULANDONG (G.R. No. 144915, February 23, 2004)
• It is well-settled rule that a probate court or one in charge of proceedings
whether testate or intestate 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 said properties is to determine whether they should or should
not be included in the inventory or list of properties to be administered
by the administrator. If there is no dispute, well and good; but if there is,
then the parties, the administrator, and the opposing parties have to
resort to an ordinary action for a final determination of the conflicting
claims of title because the probate court cannot do so.
• Having been apprised of the fact that the property in question was in the
possession of third parties and more important, covered by a transfer
certificate of title issued in the name of such third parties, the respondent
court should have denied the motion of the respondent administrator and
excluded the property in question from the inventory of the property of
the estate. It had no authority to deprive such third persons of their
possession and ownership of the property. x x x (Emphasis and
underscoring supplied)

• Following Cuizon, the probate court exceeded its
jurisdiction when it further declared the deed of sale
and the titles of petitioners null and void, it having had
the effect of depriving them possession and ownership
of the property.
• Moreover, following Section 48 of the Property
Registry Decree which reads:
• SECTION 48. Certificate not subject to collateral attack.
- A certificate of title shall not be subject to collateral
attack. It cannot be altered, modified, or cancelled
except in a direct proceeding in accordance with law,
• petitioners’ titles cannot, under probate proceedings,
be declared null and void.
ROMERO vs. COURT OF APPEALS (G.R. No. 188921, April 18,
2012)
• In Bernardo v. Court of Appeals, the Supreme Court
declared that the determination of whether a property is
conjugal or paraphernal for purposes of inclusion in the
inventory of the estate rests with the probate court:
• In the case now before us, the matter in controversy is the
question of ownership of certain of the 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 decedent which is to
be distributed among his heirs who are all parties to the
proceedings.
• 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 have been paid.
•
MAGNIFICUS JURIS 19 of 40.
ARANAS vs. MERCADO, ET AL. (G.R. No. 156407, January 15,
2014)
• The probate court is authorized to determine the issue of
ownership of properties for purposes of their inclusion or
exclusion from the inventory to be submitted by the
administrator, but its determination shall only be provisional
unless the interested parties are all heirs of the decedent, or
the question is one of collation or advancement, or the
parties consent to the assumption of jurisdiction by the
probate court and the rights of third parties are not impaired.
Its jurisdiction extends to matters incidental or collateral to
the settlement and distribution of the estate, such as the
determination of the status of each heir and whether
property included in the inventory is the conjugal or exclusive
property of the deceased spouse.
PROBATE IS A PROCEEDING IN REM
ATILANO MERCADO VS. SANTOS (66 Phil 216) – probate
proceeding is a proceeding in rem. The judgment of the court
is binding upon everybody even against the State.
PROBATE IS CONCLUSIVE AS TO THE DUE EXECUTION OF
WILLS
• Due execution of will and testamentary capacity of testator
acquire the character of res judicata
ATILANO MERCADO vs. SANTOS (66 Phil 216) - After final
judgment on the probate, proponent was prosecuted for
allegedly having presented a forged will. The case for forgery
could not prosper because judgment on probate was
conclusive as to the due execution of the will.
IS IT MANDATORY TO PRESENT THE 3 WITNESSES IF THE PROBATE OF
A HOLOGRAPHIC WILL IS CONTESTED?
In the case of Azaola vs. Singson, not mandatory because no
witnesses are required during execution of holographic wills, hence, it
is obvious that the existence of witnesses possessing the requisite
qualification is a matter beyond the control of the proponent of will.
Mandatory only in notarial wills because at least 3 witnesses are
required during the execution of will.
BUT in the case of Codoy vs. Calugay (312 SCRA 333 [1999]), 3
witnesses are mandatory in contested holographic wills. Reasons:
– word “shall” connotes an imperative obligation and is inconsistent
with the idea of discretion
– To prevent the possibility that unscrupulous individuals who, for their
benefit, will employ means to defeat the wishes of the testator. Since
the possibility of a false document being adjudged as the will cannot
be eliminated, if the will is contested, at least 3 of the required
witnesses should declare that the holographic will is in the
handwriting and signature of testator.
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.
MAGNIFICUS JURIS 20 of 40.
RODELAS VS. ARANZA (119 SCRA 16)
Photostatic copy of holographic will may be probated. Carbon copy also allowed.
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA
PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL ADMINISTRATOR
(G.R. No. 169144, January 26, 2011)
Our laws do not prohibit the probate of wills executed by foreigners abroad although
the same have not as yet been probated and allowed in the countries of their
execution. A foreign will can be given legal effects in our jurisdiction. Article 816 of
the Civil Code states that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by the law of the
place where he resides, or according to the formalities observed in his country. In this
connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the
decedent is an inhabitant of a foreign country, the RTC of the province where he has
an estate may take cognizance of the settlement of such estate. Sections 1 and 2 of
Rule 76 further state that the executor, devisee, or legatee named in the will, or any
other person interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the same be in
his possession or not, or is lost or destroyed.
In insisting that Ruperta’s will should have been first probated
and allowed by the court of California, 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 petitioners’ stance, since this latter 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 the matter can be
established. Besides, petitioners’ 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.
WHAT ARE THE GROUNDS FOR DISALLOWANCE OF WILLS?
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 (Arts.
804-809);
(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 (Arts. 1334 and 1335);
(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 (must refer to the
nature of the instrument or its contents);
(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)
* Add: If the will was expressly revoked.
the grounds are exclusive. No other grounds can serve to disallow will
WHAT IS THE OMISSION THAT RESULTS IN PRETERITION?
The person is not an heir, not a devisee, not a legatee,
thus, receives nothing by will (Aznar vs. Duncan [17 SCRA
590]);
No donation inter vivos was given to him
There is nothing which could be inherited by intestacy
because the whole estate was distributed by will;
There is no prior delivery of presumptive legitime.
Note: The omission may be intentional or unintentional
MAGNIFICUS JURIS 21 of 40.
WHAT IS PRETERITION?
- It is the omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator,
which, as a consequence, shall annul the institution of heir;
but the devises and legacies shall be valid insofar as they
are not inofficious.
WHO CAN BE PRETERITED?
- Compulsory heirs who are in the direct line, specifically
ascendants and descendants, ad infinitum, and adopted
children. The spouse cannot claim preterition because she
is not a relative in the direct line (Acain vs. IAC [155 SCRA
100]).
WHAT IS THE EFFECT OF PRETERITION?
- the institution of heirs is annulled. Hence,
distribute the estate in accordance with the rules
on legal succession. But the devises and legacies
shall be valid insofar as they are not inofficious. If
the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without
prejudice to the right of representation.
WHAT ARE THE TYPES OF SUBSTITUTION OF HEIRS?
Types of Substitution
A. Simple substitution (direct substitution), which may be:
Vulgar - the testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not
wish, or should be incapacitated to accept the inheritance.
Brief - two or more persons may be substituted for one
Compendious - one substitute for two or more heirs.
Reciprocal – the instituted heirs are also the substitutes of each other.
B. Fideicommissary (indirect substitution) - 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.
RABADILLA vs. CA (JUNE 29, 2000)
In the Codicil of testatrix, Dr. Rabadilla was instituted as a devisee
of Lot No. 1392 contained the following provisions, among others:
Rabadilla shall have the obligation until he dies, every year to give
to Belleza 100 piculs of sugar until Belleza dies;
Should Rabadilla die, his heir to whom he shall give Lot No. 1392
shall have the obligation to still give yearly, the sugar as specified to
Belleza.
In the event that the lot is sold, leased, or mortgaged, the buyer,
lessee, mortgagee, shall have also the obligation to respect and
deliver yearly sugar to Belleza. Should the command be not
respected Belleza shall immediately seize the lot and turn it over to
the testarix’ near descendants.
MAGNIFICUS JURIS 22 of 40.
WHAT ARE THE KINDS OF INSTITUTION OF
HEIRS?
Simple or pure – not subject to any condition, term or burden
Conditional – (Arts. 871-877, 883-884)
With a term – (Arts. 878, 880-881)
Modal – (Arts. 882-883)
HELD:
Not a case of 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 do 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 referred to shall be
seized and turned over to the testatrix's near descendants.
Neither is there a 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 or his heirs not fulfill the obligation to deliver part of
the usufruct to private respondent. Moreover, a 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 at all related to the instituted heir, Dr.
Rabadilla.
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 complied with, the property shall be
turned over to the testatrix's 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 and not conditional.
• Rules of interpretation:
When there is doubt if it is a mode or condition:
construed as modal following the principle that
testamentary dispositions are acts of liberality
When there is doubt as to the existence of a modal
institution: not considered as a mode but merely as
a suggestion or discussion which the heir may or
may not follow, in keeping with the nature of
testamentary dispositions as acts of liberality. For a
statement to be considered as a mode, it must have
coercive or obligatory force
MAGNIFICUS JURIS 23 of 40.
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.
WHO ARE THE 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) Illegitimate children
In all cases of illegitimate children, their filiation must be duly proved.
ILANO vs. CA(G.R. No. 104376, February 23, 1994)
In this regard, Article 287 of the Civil Code provides that illegitimate children other
than natural in accordance with Article 269 and other than natural children by legal
fiction are entitled to support and such successional rights as are granted in the Civil
Code. The Civil Code has given these rights to them because the transgressions of
social conventions committed by the parents should not be visited upon them. They
were born with a social handicap and the law should help them to surmount the
disadvantages facing them through the misdeeds of their parents. However, 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
acknowledgement by the parent. 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.
•
UYGUANGCO versus COURT OF APPEALS (G.R. No. 76873, October 26, 1989)
"The issue before the Court is not the status of the private respondent, who
has been excluded from the family and inheritance of the petitioners. What
we are asked to decide is whether he should be allowed to prove that he is an
illegitimate child of his claimed father, who is already dead, in the absence of
the documentary evidence required by the Civil Code.
Xxx
Under the Family Code, it is provided that:
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
The following provision is therefore also available to the private respondent in
proving his illegitimate filiation:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
It must be added that the illegitimate child is now also allowed to establish
his claimed filiation by "any other means allowed by the Rules of Court and
special laws," like his baptismal certificate, a judicial admission, a family Bible
in which his name has been entered, common reputation respecting his
pedigree, admission by silence, the testimonies of witnesses, and other kinds
of proof admissible under Rule 130 of the Rules of Court.
The problem of the private respondent, however, is that, since he seeks to
prove his filiation under the second paragraph of Article 172 of the Family
Code, his action is now barred because of his alleged father's death in 1975.
The second paragraph of this Article 175 reads as follows:
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent. (Italics supplied.)
It is clear that the private respondent can no longer be allowed at this time
to introduce evidence of his open and continuous possession of the status
of an illegitimate child or prove his alleged filiation through any of the
means allowed by the Rules of Court or special laws. The simple reason is
that Apolinario Uyguangco is already dead and can no longer be heard on
the claim of his alleged son's illegitimate filiation.
MAGNIFICUS JURIS 24 of 40.
While the private respondent has admitted that he has none of the
documents mentioned in the first paragraph (which are practically the
same documents mentioned in Article 278 of the Civil Code except for
the "private handwritten instrument signed by the parent himself'''),
he insists that he has nevertheless been "in open and continuous
possession of the status of an illegitimate child," which is now also
admissible as evidence of filiation.
Thus, he claims that he lived with his father from 1967 until 1973,
receiving support from him during that time; that he has been using
the surname Uyguangco without objection from his father and the
petitioners as shown in his high school diploma, a special power of
attorney executed in his favor by Dorotea Uyguangco, and another one
by Sulpicio Uyguangco; that he has shared in the profits of the copra
business of the Uyguangcos, which is a strictly family business; that he
was a director, together with the petitioners, of the Alu and Sons
Development Corporation, a family corporation; and that in the
addendum to the original extrajudicial settlement concluded by the
petitioners he was given a share in his deceased father's estate.
WHAT IS RESERVA TRONCAL?
– The process by which an ascendant who inherits by operation of law from his descendant which the
latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged
by law to reserve such property for the benefit of third degree relatives who belong to the line from
which the property came from;
– Purpose: to prevent the accidental transfer of property/wealth from one line to another line.
• WHO ARE THE PARTIES IN RESERVA TRONCAL?
A. Origin
- The person from whom the reservable property comes from.
- Either an ascendant or (half) brother or sister of the prepositus
B. Prepositus
- Person to whom the origin transfers the property gratuitously
- The arbiter of the reserva because the prepositus may alienate or destroy the property and thus prevent the
existence of the reserve
C. Reservor (Reservatario)
- Ascendant of the prepositus
- The transfer to the reservoir must be by operation of law, either as legitime or by intestacy
- The absolute owner of the property subject to the resolutory condition of existence of the 3rd degree
relatives of the prepositus upon the reservor’s death.
D. Reservees (Reservista)
- Belonging to the same line of the family as that of the origin
- Related to the prepositus in the 1st, 2nd, and 3rd degree.
SIENES vs. ESPARCIA (1 SCRA 750)
The Supreme Court upheld the validity of the
simultaneous sales made by both the reservor
and the reservees to two different buyers. The
reservor may alienate the reservable property
subject to as resolutory condition - his death –
by virtue of which, the property shall be
transferred to relatives of the prepositus within
the third degree (reservees). In effect, there is a
double resolutory condition – (1) death of the
reservoir; and (2) the survival of the reservees
upon the death of the reservor.
• RULING:
• Based on the circumstances of the present
case, Article 891 on reserva troncal is not
applicable.
MAGNIFICUS JURIS 25 of 40.
MENDOZA, ET. AL. vs. DELOS SANTOS (G.R. No. 176422, March 20,
2013)
Petitioners are grandchildren of Placido Mendoza (Placido) and
Dominga Mendoza (Dominga). Placido and Dominga had four children:
Antonio, Exequiel, married to Leonor, Apolonio and Valentin.
Petitioners Maria, Deogracias, Dionisia, Adoracion, Marcela and
Ricardo are the children of Antonio. Petitioners Juliana, Fely,
Mercedes, Elvira and Fortunato, on the other hand, are Valentin’s
children. Petitioners alleged that the properties were part of Placido
and Dominga’s properties that were subject of an oral partition and
subsequently adjudicated to Exequiel. After Exequiel’s death, it passed
on to his spouse Leonor and only daughter, Gregoria. After Leonor’s
death, her share went to Gregoria. In 1992, Gregoria died intestate and
without issue. They claimed that after Gregoria’s death, respondent,
who is Leonor’s sister, adjudicated unto herself all these properties as
the sole surviving heir of Leonor and Gregoria. Hence, petitioners
claim that the properties should have been reserved by respondent in
their behalf and must now revert back to them, applying Article 891 of
the Civil Code on reserva troncal.
• The fallacy in the CA’s resolution is that it proceeded from
the erroneous premise that Placido is the ascendant
contemplated in Article 891 of the Civil Code. From thence,
it sought to trace the origin of the subject properties back
to Placido and Dominga, determine whether Exequiel
predeceased Placido and whether Gregoria predeceased
Exequiel.
• It should be pointed out that the ownership of the
properties should be reckoned only from Exequiel’s as he is
the ascendant from where the first transmission occurred,
or from whom Gregoria inherited the properties in dispute.
The law does not go farther than such
ascendant/brother/sister in determining the lineal
character of the property. What is pertinent is that
Exequiel owned the properties and he is the ascendant
from whom the properties in dispute originally came.
Gregoria, on the other hand, is the descendant who
received the properties from Exequiel by gratuitous title.
• Article 891 provides that the person obliged to reserve the property
should be an ascendant (also known as the reservor/reservista) of
the descendant/prepositus. Julia, however, is not Gregoria’s
ascendant; rather, she is Gregoria’s collateral relative. Gregoria’s
ascendants are her parents, Exequiel and Leonor, her grandparents,
great-grandparents and so on. On the other hand, Gregoria’s
descendants, if she had one, would be her children, grandchildren
and great-grandchildren. Not being Gregoria’s ascendants, both
petitioners and Julia, therefore, are her collateral relatives.
• Moreover, petitioners cannot be considered
reservees/reservatarios as they are not relatives within the third
degree of Gregoria from whom the properties came. The person
from whom the degree should be reckoned is the
descendant/prepositus―the one at the end of the line from which
the property came and upon whom the property last revolved by
descent. It is Gregoria in this case. Petitioners are Gregoria’s fourth
degree relatives, being her first cousins. First cousins of the
prepositus are fourth degree relatives and are not reservees or
reservatarios
• WHAT IS THE DELAYED INTESTACY THEORY?
• – When the resolutory condition of the reserva is fulfilled, the
properties are distributed to the reservees as if they are inheriting
from the prepositus at the time of fulfillment of the condition.
Since there is no will, then the reserves inherit by virtue of intestate
succession, the decedent being the prepositus; thus the name
Delayed Intestacy.
• WHAT ARE THE REQUISITES FOR A VALID DISINHERITANCE?
• It should be embodied in a VALID WILL;
• It must be made EXPRESSLY;
• It should be for a LEGAL CAUSE;
• It should be for a TRUE CAUSE;
• It should be for an EXISTING CAUSE;
• It should be TOTAL OR COMPLETE;
• It should be STATED IN THE WILL;
• The heir should be IDENTIFIED;
• The will must not have been REVOKED.
• Grounds: Arts. 919 (child or descendant), 920 (parent or
ascendant) , 921 (spouse)
MAGNIFICUS JURIS 26 of 40.
• They cannot even claim representation of their predecessors
Antonio and Valentin as Article 891 grants a personal right of
reservation only to the relatives up to the third degree from whom
the reservable properties came. The only recognized exemption is
in the case of nephews and nieces of the prepositus, who have the
right to represent their ascendants (fathers and mothers) who are
the brothers/sisters of the prepositus and relatives within the third
degree.
• If at all, what should apply in the distribution of Gregoria’s estate
are Articles 1003 and 1009 of the Civil Code, which provide:
• Art. 1003. If there are no descendants, ascendants, illegitimate
children, or a surviving spouse, the collateral relatives shall succeed
to the entire estate of the deceased in accordance with the
following articles.
• Art. 1009. Should there be neither brothers nor sisters, nor children
of brothers or sisters, the other collateral relatives shall succeed to
the estate.
• The latter shall succeed without distinction of lines or preference
among them by reason of relationship by the whole blood.
DISTINCTIONS BETWEEN DISINHERITANCE AND PRETERITION
Preterition Disinheritance
Consists in the omission in the testator's will of the forced Is a testamentary disposition depriving any compulsory
heirs or anyone of them, either because they are not heirs of his share in the legitimate for a cause authorized by
mentioned therein, or, though mentioned, they are neither law.
instituted as heirs nor are expressly disinherited.
Presumed to be "involuntary". Always "voluntary".
Shall annul the institution of heir. This annulment is in toto, Shall annul the institution of heirs", but only "insofar as it
unless in the will there are, in addition, testamentary may prejudice the person disinherited", which last phrase
dispositions in the form of devises or legacies. was omitted in the case of preterition. Better stated yet, in
disinheritance the nullity is limited to that portion of the
estate of which the disinherited heirs have been illegally
deprived.
Voluntary heirs cannot receive because of the total Voluntary heirs can still receive for as long as the invalidly
annulment of the institution. disinherited heir is given his legitime.

• WHAT IS THE IRON BAR RULE?
– In legal succession, there is absolute separation
between legitimate family and illegitimate family
– ARTICLE 992. An illegitimate child has no right to
inherit ab intestato from the legitimate children
and relatives of his father or mother; nor shall
such children or relatives inherit in the same
manner from the illegitimate child.
• IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-
SUNTAY; EMILIO A.M. SUNTAY III vs. ISABEL COJUANGCO-SUNTAY (G.R.
No. 183053, June 16, 2010)
• On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina),
married to Dr. Federico Suntay (Federico), died intestate. In 1979, their
only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina
and Federico. At the time of her death, Cristina was survived by her
husband, Federico, and several grandchildren, including herein petitioner
Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay.
During his lifetime, Emilio I was married to Isabel Cojuangco, and they
begot three children, namely: herein respondent, Isabel; Margarita; and
Emilio II, all surnamed Cojuangco-Suntay. Emilio I’s marriage to Isabel
Cojuangco was subsequently annulled. Thereafter, Emilio I had two
children out of wedlock, Emilio III and Nenita Suntay Tañedo (Nenita), by
two different women, Concepcion Mendoza and Isabel Santos,
respectively. Despite the illegitimate status of Emilio III, he was reared
ever since he was a mere baby, nine months old, by the spouses Federico
and Cristina and was an acknowledged natural child of Emilio I. Nenita is
an acknowledged natural child of Emilio I and was likewise brought up by
the spouses Federico and Cristina. Upon the death of Cristina, Federico
adopted Emilio III. During the intestate proceeding over Cristina’s estate,
Federico sought appointment as administrator thereof. Later on, he
nominated Emilio III to act as administrator.
MAGNIFICUS JURIS 27 of 40.
• Illustration
 Under Art. 992, I and J cannot represent F
 Under Art. 990, G and H can represent E
 Hence, an illegitimate can be represented by his children.
legitimate or illegitimate, but a legitimate child cannot be
represented by his illegitimate children
 E cannot inherit from B and A
 D cannot inherit from C and vice versa (reciprocal prohibition)
The Court of Appeals (CA) zeroed in on Emilio III’s status as an illegitimate child of
Emilio I and, thus, barred from representing his deceased father in the estate of the
latter’s legitimate mother, the decedent. On the whole, the CA pronounced that Emilio
III, who was merely nominated by Federico, and which nomination hinged upon the
latter’s appointment as administrator of the decedent’s estate, cannot be appointed
as the administrator of the decedent’s estate for the following reasons:
1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federico’s
appointment as administrator of the estate, he being the surviving spouse of Cristina,
the decedent. The death of Federico before his appointment as administrator of
Cristina’s estate rendered his nomination of Emilio III inoperative;
2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio
III) of decedent’s son, Emilio I, respondent is preferred, being the "next of kin" referred
to by Section 6, Rule 78 of the Rules of Court, and entitled to share in the distribution
of Cristina’s estate as an heir;
3. Jurisprudence has consistently held that Article 992 of the Civil Code bars the
illegitimate child from inheriting ab intestato from the legitimate children and relatives
of his father or mother. Thus, Emilio III, who is barred from inheriting from his
grandmother, cannot be preferred over respondent in the administration of the estate
of their grandmother, the decedent; and
4. Contrary to the RTC’s finding, respondent is as much competent as Emilio III to
administer and manage the subject estate for she possesses none of the
disqualifications specified in Section 1, Rule 78 of the Rules of Court.
The pivotal issue in this case turns on who, as between Emilio III and respondent, is
better qualified to act as administrator of the decedent’s estate.
 HELD: We cannot subscribe to the appellate court’s ruling excluding Emilio III in the administration of
the decedent’s undivided estate. Mistakenly, the CA glosses over several undisputed facts and
WHAT IS THE RIGHT OF REPRESENTATION?
circumstances:
1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and
presumed will of the decedent, absent a valid and effective will; • Representation is a right created by fiction of law, by virtue of which
2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule, is quite the the representative is raised to the place and the degree of the
opposite scenario in the facts obtaining herein for the actual relationship between Federico and person represented, and acquires the rights which the latter would
Cristina, on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate
relatives; have if he were living or if he could have inherited.
3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both
acknowledged him as their grandchild; • The right of representation takes place in the direct descending line,
4. Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming but never in the ascending. In the collateral line, it takes place only
part of their conjugal partnership of gains during the subsistence of their marriage; in favor of the children of brothers or sisters (nephews and nieces),
5. Cristina’s properties forming part of her estate are still commingled with that of her husband, whether they be of the full or half blood.
Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains
undetermined and unliquidated; and
6. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latter’s
estate as a direct heir, one degree from Federico, not simply representing his deceased illegitimate • When children of one or more brothers or sisters of the deceased
father, Emilio I. survive, they shall inherit from the latter by representation (per
From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration stirpes), if they survive with their uncles or aunts. But if they alone
of the decedent’s estate. As Federico’s adopted son, Emilio III’s interest in the estate of Cristina is as
much apparent to this Court as the interest therein of respondent, considering that the CA even survive, they shall inherit in equal portions (per capita).
declared that "under the law, [Federico], being the surviving spouse, would have the right of succession
over a portion of the exclusive property of the decedent, aside from his share in the conjugal
partnership." Thus, we are puzzled why the CA resorted to a strained legal reasoning – Emilio III’s
nomination was subject to a suspensive condition and rendered inoperative by reason of Federico’s
death – wholly inapplicable to the case at bar.

WHAT LAW GOVERNS CAPACITY TO

 In case of grandchildren of the decedent, they always inherit by right of
representation (per stirpes) even if all the children of the decedent are deceased. SUCCEED?
Capacity to succeed is governed by the law of the
 Heirs who repudiate their share may not be represented. nation of the decedent. (Art. 1039)
A
3 classes of relative incapacity:
B
1. by reason of possible undue influence (Art.
C repudiates 1027 [1-5])
D 2. by reason of public policy and morality (Art.
1028)
 Can an adopted child represent? No. 3. by reason of unworthiness (Art. 1032)

MAGNIFICUS JURIS 28 of 40.


What if there is subsequent reconciliation?
• Under Art. 922, reconciliation renders
disinheritance ineffective. How about the
incapacity? Should there still be condonation
in writing? NO. When cause for unworthiness
is made the ground for disinheritance, Art.
922 applies. Reconciliation is enough. When
there is no disinheritance, Art. 1033 applies
RULING:
Collation takes place when there are compulsory heirs, one of its
purposes being to determine the legitime and the free portion. If there
is no compulsory heir, there is no legitime to be safeguarded. The
records do not show that the decedent left any primary, secondary, or
concurring compulsory heirs. He was only survived by his siblings, who
are his collateral relatives and, therefore, are not entitled to any
legitime – that part of the testator’s property which he cannot dispose
of because the law has reserved it for compulsory heirs.
The decedent not having left any compulsory heir who is entitled to
any legitime, he was at liberty to donate all his properties, even if
nothing was left for his siblings-collateral relatives to inherit. His
donation to petitioner, assuming that it was valid, is deemed as
donation made to a “stranger,” chargeable against the free portion of
the estate. There being no compulsory heir, however, the donated
property is not subject to collation.
MAGNIFICUS JURIS 29 of 40.
COLLATION
ARELLANO vs. PASCUAL (G.R. No. 189776, December 15, 2010)
Angel N. Pascual Jr. died intestate on January 2, 1999 leaving as heirs
his siblings, namely: petitioner Amelia P. Arellano who is represented
by her daughters Agnes P. Arellano and Nona P. Arellano, and
respondents Francisco Pascual and Miguel N. Pascual. During his
lifetime, Angel donated to Amelia a parcel of land (the donated
property) located in Teresa Village, Makati. In a petition for "Judicial
Settlement of Intestate Estate and Issuance of Letters of
Administration," filed by respondents on April 28, 2000, respondents
alleged, inter alia, that the donated property located in Teresa Village,
Makati, which was, by Deed of Donation, transferred by the decedent
to petitioner the validity of which donation respondents assailed, "may
be considered as an advance legitime" of petitioner. Provisionally
passing, however, upon the question of title to the donated property
only for the purpose of determining whether it formed part of the
decedent's estate, the probate court found the Deed of Donation valid
in light of the presumption of validity of notarized documents.
On the second issue:
The decedent’s remaining estate should thus be
partitioned equally among his heirs-siblings-collateral
relatives, herein petitioner and respondents, pursuant to
the provisions of the Civil Code, viz:
• Art. 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the
collateral relatives shall succeed to the entire estate of
the deceased in accordance with the following articles.
(underscoring supplied)
•
• Art. 1004. Should the only survivors be brothers and
sisters of the full blood, they shall inherit in equal
shares. (emphasis and underscoring supplied)
DONATIONS TO STRANGERS ARE SUBJECT TO COLLATION
Vda. De Tupas, vs. RTC of Negros Occidental (October 3, 1986)
Tupas Foundation, Inc. being a stranger and not a compulsory heir, the
donation inter vivos made in its favor was not subject to collation.
HELD: A person's prerogative to make donations is subject to certain
limitations, one of which is that he cannot give by donation more than he can
give by will. If he does, so much of what is donated as exceeds what he can
give by will is deemed inofficious and the donation is reducible to the extent
of such excess, though without prejudice to its taking effect in the donor's
lifetime or the donee's appropriating the fruits of the thing donated. Such a
donation is, moreover, collationable, that is, its value is in imputable into the
hereditary estate of the donor at the time of his death for the purpose of
determining the legitime of the forced or compulsory heirs and the freely
disposable portion of the estate. This is true as well of donations to strangers
as of gifts to compulsory heirs, although the language of Article 1061 of the
Civil Code would seem to limit collation to the latter class of donations.
`Collationable gifts' should include gifts made not only in favor of the forced
heirs, but even those made in favor of strangers, so that in computing the
legitimes, the value of the property donated should be considered part of the
donor's estate.
Deducting the legitimes from the net value of
the hereditary estate leaves the freely
disposable portion by which the donation in
question here must be measured. If the value of
the donation at the time it was made does not
exceed that difference, then it must be allowed
to stand. But if it does, the donation is
inofficious as to the excess and must be reduced
by the amount of said excess. In this case, if any
excess be shown, it shall be returned or reverted
to the sole compulsory heir of the deceased
Epifanio R. Tupas.
MAGNIFICUS JURIS 30 of 40.
The fact that the donated property no longer actually formed part of the estate of the
donor at the time of his death cannot be asserted to prevent its being brought to
collation. Collation contemplates and particularly applies to gifts inter vivos. The
further fact that the lots donated were admittedly capital or separate property of the
donor is of no moment, because a claim of inofficiousness does not assert that the
donor gave what was not his, but that he gave more than what was within his power
to give. In order to find out whether a donation is inofficious or not, the rules are:
(1) determination of the value of the property which remains at the time of the
testator's death;
(2) determination of the obligations, debts, and charges which have to be paid out
or deducted from the value of the property thus left;
(3) the determination of the difference between the assets and the liabilities, giving
rise to the hereditary estate;
(4) the addition to the net value thus found, of the value, at the time they were
made, of donations subject to collation; and
(5) the determination of the amount of the legitimes by getting from the total
thus found the portion that the law provides as the legitime of each respective
compulsory heir.
AN IRREVOCABLE DONATION IS SUBJECT TO COLLATION
Buhay De Roma vs. CA (July 23, 1987)
There is nothing in the above provisions expressly prohibiting the
collation of the donated properties. As the said court correctly
observed, the phrase "sa pamamagitan ng pagbibigay na di na
mababawing muli" merely described the donation as "irrevocable" and
should not be construed as an express prohibition against collation.
The fact that a donation is irrevocable does not necessarily exempt the
subject thereof from the collation required under Article 1061. The
intention to exempt from collation should be expressed plainly and
unequivocally as an exception to the general rule announced in Article
1062. The suggestion that there was an implied prohibition because
the properties donated were imputable to the free portion of the
decedent's estate merits little consideration. Imputation is not the
question here, nor is it claimed that the disputed donation is officious.
The sole issue is whether or not there was an express prohibition to
collate, and there was none.
PARTITION CAN BE MADE DURING THE LIFETIME
OF THE DECEDENT
J.L.T. AGRO, INC. vs. BALANSAG (G.R. No. 141882,
March 11, 2005)
Well-entrenched is the rule that all things, even
future ones, which are not outside the commerce
of man may be the object of a contract. The
exception is that no contract may be entered into
with respect to future inheritance, and the
exception to the exception is the partition inter
vivos referred to in Article 1080.
• The first paragraph of Article 1080, which provides the
exception to the exception and therefore aligns with the
general rule on future things, reads:
• ART. 1080. Should a person make a partition of his estate by
an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
• In interpreting this provision, Justice Edgardo Paras
advanced the opinion that if the partition is made by an act
inter vivos, no formalities are prescribed by the Article. The
partition will of course be effective only after death. It
does not necessarily require the formalities of a will for
after all it is not the partition that is the mode of acquiring
ownership. Neither will the formalities of a donation be
required since donation will not be the mode of acquiring
the ownership here after death; since no will has been
made it follows that the mode will be succession (intestate
succession). Besides, the partition here is merely the
physical determination of the part to be given to each heir.
MAGNIFICUS JURIS 31 of 40.
For the inheritance to be considered “future,” the
succession must not have been opened at the time
of the contract. A contract may be classified as a
contract upon future inheritance, prohibited under
the second paragraph of Article 1347, where the
following requisites concur:
a. That the succession has not yet been opened;
b. That the object of the contract forms part of the
inheritance; and
c. That the promissor has, with respect to the
object, an expectancy of a right which is purely
hereditary in nature.
Article 1056 of the old Civil Code (now Article
1080) authorizes a testator to partition inter
vivos his property, and distribute them among
his heirs, and this partition is neither a donation
nor a testament, but an instrument of a special
character, sui generis, which is revocable at any
time by the causante during his lifetime, and
does not operate as a conveyance of title until
his death. It derives its binding force on the
heirs from the respect due to the will of the
owner of the property, limited only by his
creditors and the intangibility of the legitime of
the forced heirs.

The partition inter vivos of the properties of Don
Julian is undoubtedly valid pursuant to Article 1347.
However, considering that it would become legally
operative only upon the death of Don Julian, the
right of his heirs from the second marriage to the
properties adjudicated to him under the
compromise agreement was but a mere
expectancy. It was a bare hope of succession to the
property of their father. Being the prospect of a
future acquisition, the interest by its nature was
inchoate. It had no attribute of property, and the
interest to which it related was at the time
nonexistent and might never exist.
• Article 854 provides that the preterition or omission of one,
some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or
born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be
valid insofar as they are not inofficious. Manresa defines
preterition as the omission of the heir in the will, either by
not naming him at all or, while mentioning him as father,
son, etc., by not instituting him as heir without disinheriting
him expressly, nor assigning to him some part of the
properties. It is the total omission of a compulsory heir in
the direct line from inheritance. It consists in the silence of
the testator with regard to a compulsory heir, omitting him
in the testament, either by not mentioning him at all, or by
not giving him anything in the hereditary property but
without expressly disinheriting him, even if he is mentioned
in the will in the latter case. But there is no preterition
where the testator allotted to a descendant a share less
than the legitime, since there was no total omission of a
forced heir.
MAGNIFICUS JURIS 32 of 40.
• Evidently, at the time of the execution of the
deed of assignment covering Lot No. 63 in
favor of petitioner, Don Julian remained the
owner of the property since ownership over
the subject lot would only pass to his heirs
from the second marriage at the time of his
death. Thus, as the owner of the subject lot,
Don Julian retained the absolute right to
dispose of it during his lifetime. His right
cannot be challenged by Milagros Donio and
her children on the ground that it had already
been adjudicated to them by virtue of the
compromise agreement.
• In the case at bar, Don Julian did not execute a
will since what he resorted to was a partition
inter vivos of his properties, as evidenced by the
court approved Compromise Agreement. Thus, it
is premature if not irrelevant to speak of
preterition prior to the death of Don Julian in the
absence of a will depriving a legal heir of his
legitime. Besides, there are other properties
which the heirs from the second marriage could
inherit from Don Julian upon his death. A couple
of provisions in the Compromise Agreement are
indicative of Don Julian’s desire along this line.
Hence, the total omission from inheritance of
Don Julian’s heirs from the second marriage, a
requirement for preterition to exist, is hardly
imaginable as it is unfounded.
WHAT ARE THE REQUISITES FOR AN EXTRAJUDICIAL PARTITION?
IS AN ORAL PARTITION VALID?
Heirs of Joaquin Teves vs. CA (316 SCRA 632) Pada-Kilario vs. CA (G.R. No. 134329, January 19, 2000)
• The extrajudicial settlements executed by the heirs of Joaquin Teves and Marcelina
Cimafranca are legally valid and binding. The extrajudicial settlement of a
decedent’s estate is authorized by section 1 of Rule 74 of the Rules of Court. For a The extrajudicial partition of the estate of Jacinto Pada among
partition pursuant to section 1 of Rule 74 to be valid, the following conditions
must concur: (1) the decedent left no will; (2) the decedent left no debts, or if his heirs made in 1951 is valid, albeit executed in an
there were debts left, all had been paid; (3) the heirs are all of age, or if they are unregistered private document. No law requires partition
minors, the latter are represented by their judicial guardian or legal
representatives; (4) the partition was made by means of a public instrument or among heirs to be in writing and be registered in order to be
affidavit duly filed with the Register of Deeds.
valid. The requirement in Sec. 1, Rule 74 of the Revised Rules
• Although Cresenciano, Ricardo’s predecessor-in-interest, was not a signatory to of Court that a partition be put in a public document and
the extrajudicial settlements, the partition of Lot 769-A among the heirs was made
in accordance with their intestate shares under the law. The extrajudicial registered, has for its purpose the protection of creditors and
settlements covering Lot 769-A were never registered. However, in the case of the heirs themselves against tardy claims. The object of
Vda. de Reyes vs. CA, 35 the Court, interpreting section 1 of Rule 74 of the Rules of
Court, upheld the validity of an oral partition of the decedent’s estate and registration is to serve as constructive notice to others. It
declared that the non-registration of an extrajudicial settlement does not affect its
intrinsic validity when there are no creditors or the rights of creditors are not follows then that the intrinsic validity of partition not
affected.
executed with the prescribed formalities is not undermined
when no creditors are involved.

Without creditors to take into consideration, it is

competent for the heirs of an estate to enter into an
agreement for distribution thereof in a manner and upon And neither does the Statute of Frauds under
a plan different from those provided by the rules from
which, in the first place, nothing can be inferred that a Article 1403 of the New Civil Code apply
writing or other formality is essential for the partition to because partition among heirs is not legally
be valid. The partition of inherited property need not be
embodied in a public document so as to be effective as deemed a conveyance of real property,
regards the heirs that participated therein. considering that it involves not a transfer of
property from one to the other but rather, a
The requirement of Article 1358 of the Civil Code that
acts which have for their object the creation, confirmation or ratification of title or right of
transmission, modification or extinguishment of real property that an heir is renouncing in favor of
rights over immovable property, must appear in a public
instrument, is only for convenience, non-compliance with another heir who accepts and receives the
which does not affect the validity or enforceability of the inheritance.
acts of the parties as among themselves.

MAGNIFICUS JURIS 33 of 40.

WHEN CAN PARTITION BE DEMANDED?
Santos vs. Santos (October 12, 2000)
Prescription, as a mode of terminating a relation of co-ownership,
must have been preceded by repudiation (of the co-ownership). The
act of repudiation, in turn, is subject to certain conditions: (1) a co-
owner repudiates the co-ownership; (2) such an act of repudiation is
clearly made known to the other co-owners; (3) the evidence thereon
is clear and conclusive; and (4) he has been in possession through
open, continuous, exclusive, and notorious possession of the property
for the period required by law.”
There was no showing that Eliseo Santos had complied with these
requisites. The SC was not convinced that Eliseo had repudiated the
co-ownership, and even if he did, there was no showing that the same
had been clearly made known to Ladislao. Under Article 1119 of the
New Civil Code, acts of possessory character executed in virtue of
license or tolerance of the owners shall not be available for the
purposes of possession.
BALUS vs. BALUS (G.R. No. 168970, January 15, 2010)
Herein petitioner and respondents are the children of the
spouses Rufo and Sebastiana Balus. Sebastiana died on
September 6, 1978, while Rufo died on July 6, 1984. On
January 3, 1979, Rufo mortgaged a parcel of land, which
he owns, as security for a loan he obtained from the Rural
Bank of Maigo, Lanao del Norte (Bank). The said property
was originally covered by Original Certificate of Title No.
P-439(788). Rufo failed to pay his loan so the mortgaged
property was foreclosed and was subsequently sold to
the Bank as the sole bidder at a public auction. On
November 20, 1981, a Certificate of Sale was executed by
the sheriff in favor of the Bank. The property was not
redeemed within the period allowed by law. More than
two years after the auction, or on January 25, 1984, the
sheriff executed a Definite Deed of Sale in the Bank's
favor.
MAGNIFICUS JURIS 34 of 40.
Indeed, Filipino family ties being close and well-knit as they
are, and considering that Virgilio Santos was the ward of Isidra
Santos ever since when Virgilio Santos was still an infant, it
was but natural that the Appellant did not interpose any
objection to the continued stay of Virgilio Santos and his
family on the property and even acquiesced thereto.
Appellant must have assumed too, that his brother, the
Appellee Eliseo Santos, allowed his son to occupy the property
and use the same for the time being.
Hence, such possession by Virgilio Santos and Philip Santos of
the property did not constitute a repudiation of the co-
ownership by the Appellee Eliseo Santos and of his privies for
that matter. Penultimately, the action for partition is not
barred by laches. An action to demand partition is
imprescriptible or cannot be barred by laches. Each co-owner
may demand at any time the partition of the common
property.
Thereafter, a new title was issued in the name of
the Bank. On October 10, 1989, herein petitioner
and respondents executed an Extrajudicial
Settlement of Estate adjudicating to each of them a
specific one-third portion of the subject property
consisting of 10,246 square meters. The
Extrajudicial Settlement also contained provisions
wherein the parties admitted knowledge of the fact
that their father mortgaged the subject property to
the Bank and that they intended to redeem the
same at the soonest possible time. Three years
after the execution of the Extrajudicial Settlement,
herein respondents bought the subject property
from the Bank. On October 12, 1992, a Deed of
Sale of Registered Land was executed by the Bank in
favor of respondents.
Subsequently, Transfer Certificate of Title (TCT) No.
T-39,484 was issued in the name of respondents.
Meanwhile, petitioner continued possession of the
subject lot. On June 27, 1995, respondents filed a
Complaint for Recovery of Possession and Damages
against petitioner, contending that they had already
informed petitioner of the fact that they were the
new owners of the disputed property, but the
petitioner still refused to surrender possession of
the same to them. Petitioner insists that despite
respondents' full knowledge of the fact that the
title over the disputed property was already in the
name of the Bank, they still proceeded to execute
the subject Extrajudicial Settlement, having in mind
the intention of purchasing back the property
together with petitioner and of continuing their co-
ownership thereof.
RULING:
Petitioner and respondents are arguing on the wrong
premise that, at the time of the execution of the
Extrajudicial Settlement, the subject property formed
part of the estate of their deceased father to which they
may lay claim as his heirs. The rights to a person's
succession are transmitted from the moment of his
death. In addition, the inheritance of a person consists of
the property and transmissible rights and obligations
existing at the time of his death, as well as those which
have accrued thereto since the opening of the succession.
In the present case, since Rufo lost ownership of the
subject property during his lifetime, it only follows that at
the time of his death, the disputed parcel of land no
longer formed part of his estate to which his heirs may lay
claim. Stated differently, petitioner and respondents
never inherited the subject lot from their father.
MAGNIFICUS JURIS 35 of 40.
Petitioner posits that the subject Extrajudicial
Settlement is, in and by itself, a contract between
him and respondents, because it contains a
provision whereby the parties agreed to continue
their co-ownership of the subject property by
“redeeming” or “repurchasing” the same from the
Bank. This agreement, petitioner contends, is the
law between the parties and, as such, binds the
respondents. As a result, petitioner asserts that
respondents' act of buying the disputed property
from the Bank without notifying him inures to his
benefit as to give him the right to claim his rightful
portion of the property, comprising 1/3 thereof, by
reimbursing respondents the equivalent 1/3 of the
sum they paid to the Bank.
Petitioner and respondents, therefore, were wrong in assuming that
they became co-owners of the subject lot. Thus, any issue arising from
the supposed right of petitioner as co-owner of the contested parcel of
land is negated by the fact that, in the eyes of the law, the disputed lot
did not pass into the hands of petitioner and respondents as
compulsory heirs of Rufo at any given point in time.
On the contrary, a plain reading of the provisions of the Extrajudicial
Settlement would not, in any way, support petitioner's contention that
it was his and his sibling's intention to buy the subject property from
the Bank and continue what they believed to be co-ownership thereof.
It is a cardinal rule in the interpretation of contracts that the intention
of the parties shall be accorded primordial consideration. It is the duty
of the courts to place a practical and realistic construction upon it,
giving due consideration to the context in which it is negotiated and
the purpose which it is intended to serve. Such intention is
determined from the express terms of their agreement, as well as their
contemporaneous and subsequent acts. Absurd and illogical
interpretations should also be avoided.
For petitioner to claim that the Extrajudicial Settlement is an
agreement between him and his siblings to continue what they
thought was their ownership of the subject property, even after the
same had been bought by the Bank, is stretching the interpretation of
the said Extrajudicial Settlement too far.
In the first place, as earlier discussed, there is no co-ownership to talk
about and no property to partition, as the disputed lot never formed
part of the estate of their deceased father. Furthermore, petitioner's
contention that he and his siblings intended to continue their
supposed co-ownership of the subject property contradicts the
provisions of the subject Extrajudicial Settlement where they clearly
manifested their intention of having the subject property divided or
partitioned by assigning to each of the petitioner and respondents a
specific 1/3 portion of the same. Partition calls for the segregation and
conveyance of a determinate portion of the property owned in
common. It seeks a severance of the individual interests of each co-
owner, vesting in each of them a sole estate in a specific property and
giving each one a right to enjoy his estate without supervision or
interference from the other. In other words, the purpose of partition
is to put an end to co-ownership, an objective which negates
petitioner's claims in the present case.
The will contained the following provisions,
among others:
"Xxx
e) Ang lupa't bahay sa Lunsod ng Maynila na
nasasaysay sa itaas na 2(c) na nasailalim ng TCT
No. 131044 ay ililipat at ilalagay sa pangalan
nila Ma. Pilar at Clemente hindi bilang pamana
ko sa kanila kundi upang pamahalaan at
pangalagaan lamang nila at nang ang sinoman
sa aking mga anak sampu ng apo at
kaapuapuhan ko sa habang panahon ay may
tutuluyan kung magnanais na mag-aral sa
Maynila o kalapit na mga lunsod x x x."
MAGNIFICUS JURIS 36 of 40.
PROHIBITION TO PARTITION (Art. 1083)
IN RE: PETITION FOR PROBATE OF LAST WILL AND TESTAMENT OF
BASILIO SANTIAGO (G.R. No. 179859, August 9, 2010)
Basilio Santiago (Basilio) contracted three marriages-the first to
Bibiana Lopez, the second to Irene Santiago, and the third to Cecilia
Lomotan. Basilio and his first wife bore two offsprings, Irene and
Marta, the mother of herein oppositors Felimon, Leonila, Consolacion,
Ananias, Urbano, and Gertrudes, all surnamed Soco. Basilio and his
second wife had six offsprings, Tomas, Cipriano, Ricardo, respondents
Zoilo and Felicidad, and petitioner Ma. Pilar, all surnamed Santiago.
Basilio and his third wife bore three children, Eugenia herein petitioner
Clemente, and Cleotilde, all surnamed Santiago. After Basilio died
testate on September 16, 1973, his daughter by the second marriage
petitioner Ma. Pilar filed a petition for the probate of Basilio's will. The
will was admitted to probate by Branch 10 of the RTC and Ma. Pilar
was appointed executrix.
After the executrix-petitioner Ma. Pilar filed a
"Final Accounting, Partition and Distribution in
Accordance with the Will," the probate court
approved the will by Order of August 14, 1978
and directed the registers of deeds of Bulacan
and Manila to register the certificates of title
indicated therein. Accordingly, the titles to Lot
Nos. 786, 837, 7922, 836 and 838 in Malolos,
Bulacan and Lot No. 8-C in Manila were
transferred in the name of petitioners Ma. Pilar
and Clemente.
On October 17, 2000, respondent-heirs of the
second marriage filed before the probate court a
Motion for Termination of Administration, for
Accounting, and for Transfer of Titles in the
Names of all the heirs citing that the
administration of Ma. Pilar Santiago and
Clemente Santiago over the house and lot in
Manila expired on September 16, 1993.
Consequently, Ma. Pilar Santiago and Clemente
Santiago should have ceased as such
administrators way back on September 16, 1993
and they should have transferred the above said
titles to all the heirs of the decedent.
RULING:
Petitioners object to the inclusion of the house and
lot in Manila, covered by TCT No. 131044, among
those to be transferred to the legatees-heirs as it
would contravene the testator’s intent that no one
is to own the same. The Court is not persuaded. It
is clear from Basilio’s will that he intended the
house and lot in Manila to be transferred in
petitioners’ names for administration purposes
only, and that the property be owned by the heirs
in common. But the condition set by the decedent
on the property’s indivisibility is subject to a
statutory limitation. On this point, the Court agrees
with the ruling of the appellate court, viz:
MAGNIFICUS JURIS 37 of 40.
Opposing the motion, petitioners Ma. Pilar and
Clemente argued that with the approval of the
Final Accounting, Partition and Distribution in
Accordance with the Will, and with the
subsequent issuance of certificates of title
covering the properties involved, the case had
long since been closed and terminated. The
petitioners objected to the inclusion of the
house and lot in Manila, covered by TCT No.
131044, among those to be transferred to the
heirs as it would contravene the testator's intent
that no one is to own the same.
For this Court to sustain without qualification,
[petitioners]’s contention, is to go against the
provisions of law, particularly Articles 494, 870, and
1083 of the Civil Code, which provide that the
prohibition to divide a property in a co-ownership
can only last for twenty (20) years x x x x
xxxx
x x x x Although the Civil Code is silent as to the
effect of the indivision of a property for more than
twenty years, it would be contrary to public policy
to sanction co-ownership beyond the period
expressly mandated by the Civil Code x x x x
WHAT IS THE EFFECT OF PRETERITION IN THE PARTITION?
NON VS. CA (325 SCRA 652)
The exclusion of petitioner Delia Viado, alleged to be a
retardate, from the deed of extrajudicial settlement verily has
had the effect of preterition. This kind of preterition, however,
in the absence of proof of fraud and bad faith, does not justify
a collateral attack on Transfer Certificate of Title No. 373646.
The relief instead rests on Article 1104 of the Civil Code to the
effect that where the preterition is not attended by bad faith
and fraud, the partition shall not be rescinded but the
preterited heir shall be paid the value of the share pertaining
to her. The appellate court had thus acted properly in ordering
the remand of the case for further proceedings to make the
proper valuation of the Isarog property and ascertainment of
the amount due petitioner Delia Viado.
WHEN CAN A CO-HEIR EXERCISE THE RIGHT OF
REDEMPTION IN CASE HEREDITARY RIGHTS ARE SOLD
PRIOR TO PARTITION?
GARCIA VS. CALALIMAN, (APR. 17, 1989)
The Respondents claim that the 30-day period prescribed
in Article 1088 of the New Civil Code for petitioners to
exercise the right to legal redemption had already
elapsed at that time and that the requirement of Article
1088 of the New Civil Code that notice must be in writing
is deemed satisfied because written notice would be
superfluous, the purpose of the law having been fully
served when petitioner Francisco Garcia went to the
Office of the Register of Deeds and saw for himself, read
and understood the contents of the deeds of sale.
MAGNIFICUS JURIS 38 of 40.
REILLO, ET AL. vs. HEIRS OF QUITERIO SAN JOSE AND
ANTONINA ESPIRITU SANTO (G.R. No. 166393, June 18,
2009)
When petitioners admitted that respondents Galicano,
Victoria, Catalina and Maribeth are the children and
grandchild, respectively, of the spouses Quiterio and
Antonina, they impliedly admitted that they are not the
sole heirs of Quiterio and Antonina. Under the rules, no
extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice
thereof. The respondents were not notified since the
petitioners misrepresented themselves as legitimate
descendants and sole heirs of the deceased spouses
Quiterio and Antonina in the Deed of Extrajudicial
Settlement. As such, it is only proper for the court to
annul the Deed of Extrajudicial Settlement.
HELD:
The issue has been squarely settled in the case of Castillo
v. Samonte, where the SC observed: "Both the letter and
spirit of the new Civil Code argue against any attempt to
widen the scope of the notice specified in Article 1088 by
including therein any other kind of notice, such as verbal
or by registration. If the intention of the law had been to
include verbal notice or any other means of information
as sufficient to give the effect of this notice, then there
would have been no necessity or reasons to specify in
Article 1088 of the New Civil Code that the said notice be
made in writing for, under the old law, a verbal notice or
information was sufficient." In the interpretation of a
related provision (Article 1623 of the New Civil Code)
written notice is indispensable, actual knowledge of the
sale acquired in some other manners by the
redemptioner, notwithstanding.

He or she is still entitled to written notice, as
exacted by the Code, to remove all uncertainty
as to the sale, its terms and its validity, and to
quiet any doubt that the alienation is not
definitive. The law not having provided for any
alternative, the method of notifications remains
exclusive, though the Code does not prescribe
any particular form of written notice nor any
distinctive method for written notification of
redemption.
Exception:
ALONZO VS. IAC (159 SCRA 259)
Actual knowledge was considered an equivalent to a written
notice of sale because the right of legal redemption was
invoked more than thirteen years after the sales were
concluded.
CABALES vs. COURT OF APPEALS (G.R. No. 162421, August
31, 2007)
However, as likewise established, the sale as to the undivided
share of petitioner Nelson and his mother was not valid such
that they were not divested of their ownership thereto.
Necessarily, they may redeem the subject property from
respondents-spouses. But they must do so within thirty days
from notice in writing of the sale by their co-owners vendors.
MAGNIFICUS JURIS 39 of 40.
CUIZON vs. REMOTO (G.R. No. 143027, October 11, 2005)
Eugenio, Raymunda, Patrecia , Placida were co-owners. Placida sold her share. The heirs of Placida
sought to exercise the right of legal redemption.
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all
of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the
sale, provided they do so within the period of one month from the time they were notified in writing of
the sale by the vendor.
HELD:
1. The right of legal redemption had not yet lapsed. The written notification should
come from the vendor or prospective vendor, Placida in this case, and not from
any other person. This is so because the vendor is in the best position to know
who are his co-owners that under the law must be notified of the sale. Also, the
notice by the seller removes all doubts as to fact of the sale, its perfection; and
its validity, the notice being a reaffirmation thereof, so that the party notified
need not entertain doubt that the seller may still contest the alienation. This
assurance would not exist if the buyer should give the notice.
2. Petitioners cannot exercise the right of legal redemption. The right of legal
redemption pertains to Placida’s (the seller) original co-owners, namely, Eugenio
Tabada, Raymunda Tabada and Patrecia Tabada, and their respective heirs, not
to petitioners who are the heirs of Placida.
In the instant case, the right of redemption was
invoked not days but years after the sale was made
in 1978. We are not unmindful of the fact that
petitioner Nelson was a minor when the sale was
perfected. Nevertheless, the records show that in
1988, petitioner Nelson, then of majority age, was
informed of the sale of subject property. Moreover,
it was noted by the appellate court that petitioner
Nelson was likewise informed thereof in 1993 and
he signified his intention to redeem subject
property during a barangay conciliation process.
But he only filed the complaint for legal redemption
and damages on January 12, 1995, certainly more
than thirty days from learning about the sale.
In the face of the established facts, petitioner
Nelson cannot feign ignorance of the sale of subject
property in 1978. To require strict proof of written
notice of the sale would be to countenance an
obvious false claim of lack of knowledge thereof,
thus commending the letter of the law over its
purpose, i.e., the notification of redemptioners.
The Court is satisfied that there was sufficient
notice of the sale to petitioner Nelson. The thirty-
day redemption period commenced in 1993, after
petitioner Nelson sought the barangay conciliation
process to redeem his property. By January 12,
1995, when petitioner Nelson filed a complaint for
legal redemption and damages, it is clear that the
thirty-day period had already expired.
Primary Structures Corp. vs. Sps. Valencia (G.R. No.
150060. August 19, 2003)
The thirty-day period of redemption had yet to
commence when private respondent Rosales
sought to exercise the right of redemption on 31
March 1987, a day after she discovered the sale
from the Office of the City Treasurer of Butuan City,
or when the case was initiated, on 16 October
1987, before the trial court. The written notice of
sale is mandatory. This Court has long established
the rule that notwithstanding actual knowledge of a
co-owner, the latter is still entitled to a written
notice from the selling co-owner in order to remove
all uncertainties about the sale, its terms and
conditions, as well as its efficacy and status.

Even in Alonzo vs. Intermediate Appellate Court

(150 SCRA 259), relied upon by petitioner in
contending that actual knowledge should be an
equivalent to a written notice of sale, the Court
made it clear that it was not reversing the
prevailing jurisprudence. The court simply
adopted an exception to the general rule, in
view of the peculiar circumstances of this case.
In Alonzo, the right of legal redemption was
invoked several years, not just days or months,
after the consummation of the contracts of sale
but more than thirteen years after the sales
were concluded.”

MAGNIFICUS JURIS 40 of 40.