Reserva minima and reserve maxima - The reserve minima and

reserve maxima becomes applicable only when the prepositus executes a

will instituting therein his ascendant as his heir. One-half of the estate
then passes to the latter by operation of law as legitime and the other
half by will of the descendant/testator. What properties then become
reservable?

No reserva maxima and minima in case propositus dies intestate. This is

because when the propositus dies intestate, the whole estate transfers by operation of
law and thus all properties received by gratuitous title from an ascendant or a brother or
sister by the prepositus and are transferred to the ascendant-reservor become
reservable properties so long as there lives a relative within the third degree of
consanguinity of the prepositus at the time the ascendant reservoir dies.

The theories of reserve minimal and reserve maxima operate when the prepositus does
not specifing the property from where the legitime or the free portion is to be paid out
from. The question as to which portion shall be reservable and which shall be non-
reservable is addressed by the theory of reserve minima and reserve maxima.

In case, the prepositus makes a will making the ascendant as his heir, there exists a
question as to what capacity did the ascendant-reservor receive the property. If he
receives the property as part of his legitime, then that transmission is by operation of
law. But if the reservoir receives the property not as a compulsory heir, not in payment
of his legitime, but as a voluntary heir, then the transmission is not by operation of law.
In the latter case, the nature of the reservable property is thus destroyed due to the
characterization of the property going to the ascendant.

Reserva Maxima and Reserva Minima example:

A son received from his mother P200k under her will. He also had properties of his own
worth 400k. When the son died without issue, he left all his estate [P600k] to his father
in his will. How much is the reservable property? The legitime of the father in his son’s
estate is P300k [1/2 of 600k].  Under the principle of reserva maxima, since the 200k
legitime of 300k received by the son from his mother can be included or contained in his
legitime of 300, said 200k is reservable. But under the principle of reserva minima, only
1/2 of 200k is reservable, on the theory that only 1/2 of the 200k received by the son
from his mother went to the father by operation of law.

The reserva maxima is more in consonance with the original objective of reserva
troncal, because it subjects to the reservation the largest amount possible. This theory
seeks to maximize the reservable character of the property.

The theory of reserve minima is a theory of pro-ration. The pro-ration required is the
allocation of the amounts of the reservable property and the non-servable property to
the amount paid as legitime and free portion. The reserva minima is more just and more
equitable, more in line with the philosophy of law of socialization of property, and
favored by Manresa and Scaevola.