Succession by Balane 2010

Chapter 1
GENERAL PROVISIONS
ARTICLE 774. Succession is a mode of acquisition by
virtue of which the property, rights and obligations to the
extent of the value of the inheritance, of a person are
transmitted through his death to another or others either
by his will or by operation of law. (n)
I. A new provision, from Scaevola.

II. Succession as treated in the Civil Code:
The Code has simplified the concept of succession and
treats it simply as a mode of acquiring ownership. It is one of
the seven legally recognized modes of acquiring ownership.
Hence, Article 774 is to be correlated with Article 712.1
III. Overlap of codal definition with Article 776:
A careful reading of this article and of Article 776 will
show an overlap of the two provisions. Article 774 talks of “pro-
perty, rights and obligations to the extent of the value of the
inheritance.” Article 776, on the other hand, talks of the “in-
1 Art. 712. Ownership is acquired by occupation and by intellectual
creation.
Ownership and other real rights over property are acquired and trans-
mitted by law. by donation, by testate and intestate succession, and in conse-
quence of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)
1
2 JOTTINGS AND JURISPRUDENCE Art. 774
heritance” as including “all the property, rights and obligations

of a person which are not extinguished by his death.”
For clarity and better correlation, Article 774 should
rather read:
“Succession is a mode of acquisition by virtue of
which the inheritance of a person is transmitted
through his death to another or others either by his
will or by operation of law.”
And the inheritance which is transmitted through a per-

son’s death is defined by Article 776 to include “all the prop-
erty, rights and obligations of a person which are not extin-
guished by his death.”
IV. What are transmitted:
Only transmissible rights (property here falls under the ru-
bric rights) and obligations pass by succession. It is not possible
to make a complete enumeration of what these transmissible
rights and obligations are but the criterion is simple and may
be laid down as a general rule: if the right or obligation is
strictly personal (intuitu personae), it is intransmissible; other-
wise, it is transmissible.
V. Rule regarding pecuniary obligations:

Literally construed, money obligations of the deceased
would, under Article 774, pass to the heirs, to the extent that
they inherit from him. Seemingly, therefore, this article man-
dates that the heirs receive the estate, and then pay off credi-
tors. Philippine procedural law, however, influenced by the
common-law system, has laid down a different method for the
payment of money debts, which is found in Rules 88 to 90 of
the Rules of Court. It is only after the debts are paid that the
residue of the estate is distributed among the successors. Rule
90, Sec. 1 provides:
“Rule 90, Sec. 1. When the order for the distri-
bution of residue is made.—When the debts, funeral
charges, and expenses of administration, the allow-
ance to the widow, and inheritance tax, if any,
chargeable to the estate in accordance with law, have
Art. 774 GENERAL PROVISIONS 3
been paid, the court, on the application of the execu-

tor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the
residue of the estate to the persons entitled to the
same, naming them and the proportions, or parts, to
which each Is entitled, and such persons may de-
mand and recover their respective shares from the ex-
ecutor or administrator, or any other person having
the same in his possession. If there is a controversy
before the court as to who are the lawful heirs of the
deceased person or as to the distributive shares to
which each person is entitled under the law, the con-
troversy shall be heard and decided as in ordinary
cases.
“No distribution shall be allowed until the pay-
ment of the obligations above mentioned has been
made or provided for, unless the distributees, or any
of them, give a bond, in a sum to be fixed by the
court, conditioned for the payment of said obligations
within such time as the court directs.” (Revised Rules
of Court).
In our system, therefore, money debts are, properly speak-

ing, not transmitted to the heirs nor paid by them. The estate
pays them; it is only what is left after the debts are paid that
are transmitted to the heirs.
Of this blended system, Justice J.B.L. Reyes makes the
following observation:
“It is generally adverted that our rules of succes-

sion mortis causa proceed from an imperfect blending
of three systems with contrasting philosophies: (1)
The Germanic concept of the universal heir who, upon
the death of the predecessor, directly and immediately
steps into his shoes and at one single occasion (uno
ictu)\ without any formalities whatsoever, acquires en
bloc the universality of all his surviving or transmissi-
ble rights and obligations, in an automatic subjective
novation therein, unless the heir should repudiate
and reject the inheritance: (2) the Franco^Spanish
system, where like in the German, there is an acquisi-
tion of the estate by universal title but only upon ac-
ceptance by the heir, who may do so when he

chooses, (with retroactive effect) unless required to
decide earlier by the creditors or the Court; and (3)
the Anglo-American (Common Law) system that, upon
the death of the predecessor, the estate must first be
liquidated, the assets marshaled and the debts paid
or settled under judicial supervision, by an interven-
ing trustee or personal representative (administrator
or executor) before the net residue is taken over by
the successor. The second seems to be the system of
the Civil Code, and under it, the universality of prop-
erty rights, and obligations of the decedent are
transmitted to the heirs en bloc, as an entire mass,
from the moment of death. As interpreted by the Su-
preme Court the hereditary rights of the successors
become automatically vested in them from and after
the death of their predecessor even before judicial
recognition of their heirship.”
“Upon the other hand, following the Common
Law system, the Rules of Court provide that—
'An executor or administrator shall have
the right to the possession and management of
the real as well as the personal estate of the de-
ceased so long as it is necessary for the payment
of the debts and the expenses of administration.’
with the right to dispose so much of the estate as may
be necessary to satisfy creditors.
“Furthermore, by Section 3 of Rule 87,2 an ac-
tion for recovery of title to or possession of lands in
the hands of an executor or administrator may not be
maintained by an heir or devisee until there is an or-
der of the Court assigning such lands to such heir or
devisee; while under Rule 90, Section l,3 it is only
2 "SEC. 3. Heir may not sue until share assigned.—When an executor or
administrator is appointed and assumes the trust, no action to recover the title
or possession of lands or for damages done to such lands shall be maintained
against him by an heir or devisee until there is an order of the court assigning
such lands to such heir or devisee or until the time allowed for paying debts
has expired.
3 “SEC. 1. When order for distribution of residue made.—When the
debts, funeral charges, and expenses of administration, the allowance to the

when the debts and expenses of administration and

the inheritance taxes have been paid that the Court,
after due hearing, shall assign the residue of the es-
tate to the persons entitled to the same, naming them
and the portion to which each is entitled, and only
then may such persons demand and recover their re-
spective shares from the executor or any other person
having the same in his possession.
“We are thus faced with divergent, if not contra-
dictory, principles. Do the successors acquire the
whole of the transmissible assets and liabilities of the
decedent by and upon his death, or do they only ac-
quire the residuum remaining after payment of the
debts, as implied by the Rules of Court? Or do they
acquire only the naked title at the death of the prede-
cessor, but with possession or enjoyment vested in
the administrator or personal representative until af-
ter the settlement of the claims against the estate? Ar-
ticle 774 of the Civil Code specifies, and our Supreme
Court so confirms, that by virtue of succession the
property, rights and obligations, to the extent of the
value of the inheritance of a person, are transmitted
by and at the moment of his death, implying a transfer
at that instant of the totality or universality of assets
and liabilities; but this rule is beclouded by Article
1057 which provides that ‘within 30 days after the
Court has issued an order for the distribution of the es-
tate in accordance with the Rules of Court, the heirs,
devisees and legatees shall signify to the Court having
widow, and inheritance tax, if any, chargeable to the estate in accordance with
law, have been paid, the court, on the application of the executor or adminis-
trator, or of a person interested in the estate, and after hearing upon notice,
shall assign the residue of the estate to the persons entitled to the same, nam-
ing them and the proportions, or parts, to which each is entitled, and such
persons may demand and recover their respective shares from the executor or
administrator, or any other person having the same in his possession. If there
is a controversy before the court as to who are the lawful heirs of the deceased
person or as to the distributive shares to which each person is entitled under
the law, the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations
above mentioned has been made or provided for, unless the distributees, or
any of them, give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court directs.
jurisdiction whether they accept or repudiate the in-

heritance.’ As already shown, the order of distribution
under the Rules of Court is only issued after the
debts, taxes and administration expenses have been
paid; hence it is arguable that the acceptance can no
longer refer to assets already disposed of by the ad-
ministrator, but must be limited to the net residue.
Not only this, but if title vests in the heir as of the
death of the decedent then the acceptance of the for-
mer becomes entirely superfluous, and the law should
limit itself to regulating the effects of a repudiation by
an heir or legatee, and its retroactive effect. The revi-
sion of the Code should aim at clarifying such incon-
sistencies, and above all, unifying the rules of trans-
mission of the decedent’s estate.” (“Reflections on the
Reform of Hereditary Succession," Philippine Law
Journal, July 1975, Vol. L, no. 3, pp. 279-281)
A consequence of these divergent rules (as JBL puts it) is

that creditors have to pursue their claims in the settlement
proceedings and not against the heirs.
Union Bank vs. SantibaAez
452 SCRA 228 [2005]
CALLEJO, SR.:
XXX XXX XXX

On May 31, 1980, the First Countryside Credit
Corporation (FCCC) and Efraim M. Santibanez en-
tered into a loan agreement in the amount of
PI28,000.00. The amount was intended for the pay-
ment of the purchase price of one (1) unit Ford 6600
Agricultural All-Purpose Diesel Tractor. In view
thereof, Efraim and his son, Edmund, executed a
promissory note in favor of the FCCC, the principal
sum payable in five equal annual amortizations of
P43.745.96 due on May 31, 1981 and every May 31st
thereafter up to May 31, 1985.
On December 13, 1980, the FCCC and Efraim entered into

another loan agreement, this time in the amount of
PI23,156.00. It was intended to pay the balance of the pur-
chase price of another unit of Ford 6600 Agricultural All-

Purpose Diesel Tractor, with accessories, and one (1) unit How-
ard Rotamotor Model AR 60K. Again, Efraim and his son, Ed-
mund, executed a promissory note for the said amount in favor
of the FCCC. Aside from such promissory note, they also signed
a Continuing Guaranty Agreement for the loan dated December
13, 1980.
Sometime in February 1981, Efraim died, leaving a holo-
graphic will. Subsequently in March 1981, testate proceedings
commenced before the RTC of Iloilo City, Branch 7, docketed as
Special Proceedings No. 2706. On April 9, 1981, Edmund, as
one of the heirs, was appointed as the special administrator of
the estate of the decedent. During the pendency of the testate
proceedings, the surviving heirs, Edmund and his sister Flor-
ence Santibanez Ariola, executed a Joint Agreement dated July
22, 1981, wherein they agreed to divide between themselves
and take possession of the three (3) tractors; that is, two (2)
tractors for Edmund and one (1) tractor for Florence. Each of
them was to assume the indebtedness of their late father to
FCCC, corresponding to the tractor respectively taken by them.
On August 20, 1981, a Deed of Assignment with Assump-
tion of Liabilities was executed by and between FCCC and Un-
ion Savings and Mortgage Bank, wherein the FCCC as the as-
signor, among others, assigned all its assets and liabilities to
Union Savings and Mortgage Bank.
Demand letters for the settlement of his account were sent
by petitioner Union Bank of the Philippines (UBP) to Edmund,
but the latter failed to heed the same and refused to pay. Thus,
on February 5, 1988, the petitioner filed a Complaint for sum of
money against the heirs of Efraim Santibanez, Edmund and
Florence, before the RTC of Makati City, Branch 150, docketed
as Civil Case No. 18909. Summonses were issued against both,
but the one intended for Edmund was not served since he was
in the United States and there was no information on his ad-
dress or the date of his return to the Philippines. Accordingly,
the complaint was narrowed down to respondent Florence S.
Ariola.
On December 7, 1988, respondent Florence S. Ariola filed
her Answer and alleged that the loan documents did not bind
8 JOTTINGS AND JURISPRUDENCE A"1-774
her since she was not a party thereto. Considering that the
joint agreement signed by her and her brother Edmund was not
approved by the probate court, it was null and void; hence, she
was not liable to the petitioner under the joint agreement.
On January 29, 1990, the case was unloaded and re-
raffled to the RTC of Makati City, Branch 63. Consequently,
trial on the merits ensued and a decision was subsequently
rendered by the court dismissing the complaint for lack of
merit. The decretal portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered
DISMISSING the complaint for lack of merit.
The trial court found that the claim of the peti-
tioner should have been filed with the probate court
before which the testate estate of the late Efraim San-
tibanez was pending, as the sum of money being
claimed was an obligation incurred by the said dece-
dent. The trial court also found that the Joint Agree-
ment apparently executed by his heirs, Edmund and
Florence, on July 22, 1981, was, in effect, a partition
of the estate of the decedent. However, the said
agreement was void, considering that it had not been
approved by the probate court, and that there can be
no valid partition until after the will has been pro-
bated. The trial court further declared that petitioner
failed to prove that it was the now defunct Union Sav-
ings and Mortgage Bank to which the FCCC had as-
signed its assets and liabilities. The court also agreed
to the contention of respondent Florence S. Ariola that
the list of assets and liabilities of the FCCC assigned
to Union Savings and Mortgage Bank did not clearly
refer to the decedent’s account. Ruling that the joint
agreement executed by the heirs was null and void,
the trial court held that the petitioner’s cause of ac-
tion against respondent Florence S. Ariola must nec-
essarily fail.
The petitioner appealed from the RTC decision
and elevated its case to the Court of Appeals (CA),
x x x .
xxx xxx xxx

The petitioner asserted before the CA that the

obligation of the deceased had passed to his legiti-
mate children and heirs, in this case, Edmund and
Florence; the unconditional signing of the joint
agreement marked as Exhibit “A" estopped respon-
dent Florence S. Ariola, and that she cannot deny her
liability under the said document; as the agreement
had been signed by both heirs in their personal ca-
pacity, it was no longer necessary to present the same
before the probate court for approval; the property
partitioned in the agreement was not one of those
enumerated in the holographic will made by the de-
ceased; and the active participation of the heirs, par-
ticularly respondent Florence S. Ariola, in the present
ordinary civil action was tantamount to a waiver to re-
litigate the claim in the estate proceedings.
On the other hand, respondent Florence S. Ari-
ola maintained that the money claim of the petitioner
should have been presented before the probate court.
The appellate court found that the appeal was
not meritorious and held that the petitioner should
have filed its claim with the probate court as provided
under Sections 1 and 5, Rule 86 of the Rules of Court.
It further held that the partition made in the agree-
ment was null and void, since no valid partition may
be had until after the will has been probated. Accord-
ing to the CA, page 2, paragraph (e) of the holographic
will covered the subject properties (tractors) in generic
terms when the deceased referred to them as “all
other properties.” Moreover, the active participation of
respondent Florence S. Ariola in the case did not
amount to a waiver, x x x .
xxx xxx xxx
The petitioner claims that the obligations of the
deceased were transmitted to the heirs as provided in
Article 774 of the Civil Code; there was thus no need
for the probate court to approve the joint agreement
where the heirs partitioned the tractors owned by the
deceased and assumed the obligations related thereto.
Since respondent Florence S. Ariola signed the joint
agreement without any condition, she is now estopped
from asserting any position contrary thereto. The peti-

tioner also points out that the holographic will of the
deceased did not include nor mention any of the trac-
tors subject of the complaint, and, as such was be-
yond the ambit of the said will. The active participa-
tion and resistance of respondent Florence S. Ariola in
the ordinary civil action against the petitioner’s claim
amounts to a waiver of the right to have the claim
presented in the probate proceedings, and to allow
any one of the heirs who executed the joint agreement
to escape liability to pay the value of the tractors un-
der consideration would be equivalent to allowing the
said heirs to enrich themselves to the damage and
prejudice of the petitioner.
xxx xxx xxx
In her comment to the petition, respondent Flor-
ence S. Ariola maintains that the petitioner is trying
to recover a sum of money from the deceased Efraim
Santibanez; thus the claim should have been filed
with the probate court. She points out that at the time
of the execution of the joint agreement there was al-
ready an existing probate proceedings of which the
petitioner knew about. However, to avoid a claim in
the probate court which might delay payment of the
obligation, the petitioner opted to require them to exe-
cute the said agreement.
xxx xxx xxx
The petition is bereft of merit.
xxx xxx xxx
The Court notes that the loan was contracted by
the decedent. The petitioner, purportedly a creditor of
the late Efraim Santibanez, should have thus filed its
money claim with the probate court in accordance
with Section 5, Rule 86 of the Revised Rules of Court,
which provides:
Section 5. Claims which must be filed un-
der the notice. If not filed barred; exceptions.—All
claims for money against the decedent, arising
from contract, express or implied, whether the
same be due, not due, or contingent, all claims
for funeral expenses for the last sickness of the

decedent, and judgment for money against the
decedent, must be filed within the time limited
in the notice; otherwise they are barred forever,
except that they may be set forth as counter-
claims in any action that the executor or admin-
istrator may bring against the claimants. Where
an executor or administrator commences an ac-
tion, or prosecutes an action already com-
menced by the deceased in his lifetime, the
debtor may set forth by answer the claims he
has against the decedent, instead of presenting
them independendy to the court as herein pro-
vided, and mutual claims may be set off against
each other in such action; and if final judgment
is rendered in favor of the defendant, the
amount so determined shall be considered the
true balance against the estate, as though the
claim had been presented directly before the
court in the administration proceedings. Claims
not yet due, or contingent, may be approved at
their present value.
The filing of a money claim against the dece-
dent’s estate in the probate court is mandatory. As we
held in the vintage case of Py Eng Chong v. Herrera:
. . . This requirement is for the purpose of
protecting the estate of the deceased by inform-
ing the executor or administrator of the claims
against it, thus enabling him to examine each
claim and to determine whether it is a proper
one which should be allowed. The plain and ob-
vious design of the rule is the speedy settlement
of the affairs of the deceased and the early deliv-
ery of the property to the distributees, legatees,
or heirs. The law strictly requires the prompt
presentation and disposition of the claims
against the decedent’s estate in order to settle
the affairs of the estate as soon as possible, pay
off its debts and distribute the residue.
Perusing the records of the case, nothing therein
could hold private respondent Florence S. Ariola ac-
countable for any liability incurred by her late father.
The documentary evidence presented, particularly the

promissory notes and the continuing guaranty
agreement, were executed and signed only by the late
Efraim Santibanez and his son Edmund. As the peti-
tioner failed to file its money claim with the probate
court, at most, it may only go after Edmund as co-
maker of the decedent under the said promissory
notes and continuing guaranty, of course, subject to
any defenses Edmund may have as against the peti-
tioner. As the court had not acquired jurisdiction over
the person of Edmund, we find it unnecessary to
delve into the matter further.
xxx xxx xxx
IN LIGHT OF ALL THE FOREGOING, the petition
is hereby DENIED. The assailed Court of Appeals De-
cision is AFFIRMED. No costs.
xxx xxx xxx
In a sense,it can be said that even money debts are

transmitted to and paid for by the heirs, but this would be by
indirection merely:
“The binding effect of contracts upon the heirs of

the deceased party is not altered by the provisions in
our Rules of Court that money debts of a deceased
must be liquidated and paid from his estate before the
residue is distributed among said heirs (Rule 89). The
reason is that whatever payment is thus made from
the estate is ultimately a payment by the heirs and
distributees, since the amount of the paid claim in
fact diminishes or reduces the shares that the heirs
would have been entitled to receive.” (Estate of K.H.
Hemady v. Luzon Surety, 100 Phil. 389 [1956])
Only the payment of money debts has been affected by the

Rules of Court. The transmission of other obligations not by
nature purely personal follows the rule laid down in Article
774.
Estate of K.H. Hemady vs. Luzon Surety

100 Phil. 389 (1956)
REYES, J.B.L., J.:
The Luzon Surety Co. had filed a claim against

the Estate based on twenty different indemnity
agreements, or counter bonds, each subscribed by a
distinct principal and by the deceased K.H. Hemady,
a surety solidary guarantor in all of them, in consid-
eration of the Luzon Surety Co.’s of (sic) having guar-
anteed, the various principals in favor of different
creditors, xxx
xxx xxx xxx
The Luzon Surety Co., prayed for allowance, as a
contingent claim, of the value of the twenty bonds it
had executed in consideration of the counterbonds,
and further asked for judgment for the unpaid premi-
ums and documentary stamps affixed to the bonds,
with 12 per cent interest thereon.
xxx The lower court, by order of September 23,
1953, dismissed the claims of Luzon Surety Co., on
two grounds: (1) that the premiums due and cost of
documentary stamps were not contemplated under
the indemnity agreements to be a part of the under-
taking of the guarantor (Hemady), since they were not
liabilities incurred after the execution of the counter
bonds: and (2) that “whatever losses may occur after
Hemady’s death, are not chargeable to his estate, be-
cause upon his death he ceased to be a guarantor.”
Taking up the latter point first, since it is the
one more far reaching in effects, the reasoning of the
court below ran as follows:
“The administratrix further contends that
upon the death of Hemady, his liability as a
guarantor terminated, and therefore, in the ab-
sence of a showing that a loss or damage was
suffered, the claim cannot be considered contin-
gent. This Court believes that there is merit in
this contention and finds support in Article
2046 of the new Civil Code. It should be noted
that a new requirement has been added for a

person to qualify as a guarantor, that is: integ-
rity. As correctly pointed out by the Administra-
trix, integrity is something purely personal and
is not transmissible. Upon the death of Hemady,
his integrity was not transmitted to his estate or
successors. Whatever loss therefore, may occur
after Hemady’s death, are not chargeable to his
estate because upon his death he ceased to be a
guarantor, xxx”
We find this reasoning untenable. Under the
present Civil Code (Article 1311), as well as under the
Civil Code of 1889 (Article 1257), the rule is that—
“Contracts take effect only as between the
parties, their assigns and heirs, except in the
case where the rights and obligations arising
from the contract are not transmissible by their
nature, or by stipulation or by provision of law.”
While in our successional system the responsi-
bility of the heirs for the debts of their decedent can-
not exceed the value of the inheritance they receive
from him, the principle remains intact that 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 Articles 659 and 661 of the pre-
ceding one) expressly so provide, thereby confirming
Article 1311 already quoted.
xxx xxx xxx
In Mojica vs. Fernandez, 9 Phil. 403, this Su-
preme Court ruled:
“Under the Civil Code the heirs, by virtue of
the rights of succession are subrogated to all the
rights and obligations of the deceased (Article
661) and can not be regarded as third parties
with respect to a contract to which the deceased
was a party, touching the estate of the deceased
(Barrios vs. Dolor, 2 Phil. 44).
* * * * * * * *
“The principle on which these rest Is not

affected by the provisions of the new Code of
Civil Procedure, and, in accordance with that
principle, the heirs of the deceased person can-
not be held to be “third persons” in relation to
any contracts touching the real estate of their
decedent which comes in to their hands by right
of inheritance; they take such property subject
to all the obligations resting thereon in the
hands of him from whom they derive their
rights."
(See also Galasinao vs. Austria, 51 Off. Gaz. (No.
6) p. 2874 and de Guzman us. Salak, 91 Phil. 265).
The binding effect of contracts upon the heirs of
the deceased party is not altered by the provision in
our Rules of Court that money debts of a deceased
must be liquidated before the residue is distributed
among said heirs (Rule 89). The reason is that what-
ever payment is thus made from the estate is ulti-
mately a payment by the heirs and distributees, since
the amount of the paid claim in fact diminishes or re-
duces the shares that the heirs would have been enti-
tled to receive.
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 conse-
quence of the progressive “depersonalization” of pat-
rimonial rights and duties that, as observed by Victo-
rio Polacco, has characterized the history of these in-
stitutions. From the Roman concept of a relation from
person to person, the obligation has evolved into a re-
lation from patrimony to patrimony, with the persons
occupying only a representative position, barring
those rare cases where the obligation Is strictly per-
sonal, i.e., is contracted intuitu personae, in consid-
eration of its performance by a specific person and by
no other. The transition is marked by the disappear-
ance of the imprisonment for debt.
Of the three exceptions fixed by Article 1311, the
nature of the obligation of the surety or guarantor does
not warrant the conclusion that his peculiar individ-
ual qualities are contemplated as a principal induce-

ment for the contract. What did the creditor Luzon
Surety Co. expect of K.H. Hemady when it accepted
the latter as surety in the counterbonds? Nothing but
the reimbursement of the moneys that the Luzon
Surety Co. might have to disburse on account of the
obligations of the principal debtors. This reimburse-
ment is a payment of a sum of money, resulting from
an obligation to give; and to the Luzon Surety Co., it
was indifferent that the reimbursement should be
made by Hemady himself or by some one else in his
behalf, so long as the money was paid to it.
The second exception of Article 1311, p. 1 is in-
transmissibility by stipulation of the parties. Being ex-
ceptional and contrary to the general rule, this in-
transmissibility should not be easily implied, but
must be expressly established, or at the very least,
clearly inferable from the provisions of the contract it-
self, and the text of the agreements sued upon nowhere
indicate that they are non-transferable.
“(b) Instransmisibilidad por pacto.—Lo
general es la transmisibilidad de derechos y ob-
ligaciones; la excepcion, la in transmisibilidad.
Mientras nada se diga en contrario impera el
principio de la transmision, como elemento natu-
ral a toda relation juridica, salvo las personalisi-
mas. Asi, para la no transmision es menester el
pacto expreso, porque si no, lo convenido entre
partes transciende a sus herederos.
“Siendo estos los continuadores de la per-
sonalidad del causante, sobre ellos recaen los
efectos de los vinculos juridicos creados por sus
antecesores, y para evitarlo, si asr se quiere, es
indespensable convension (sic) terrrdnante en tal
sentido.
“Por su esencia, el derecho y la obligation
tienden a ir mas alia de las personas que les
dieron vida, y a ejercer presion sobre los
sucesores de esa persona; cuando no se quiera
esto, se impone una estipulacion limitatiua expre-
samente de la transmisibilidad o de cuyos tirmi-
nos (sic) claramente se deduzca la concresion del

concreto a las mismas personas que lo otorgon
(sic).' (Scaevola, Codigo Civil, Tomo XX, pp. 541-
542) (Italics supplied).”
Because under the law (Article 1311), a person
who enters into a contract is deemed to have con-
tracted for himself and his heirs and assigns, it is un-
necessary for him to expressly stipulate to that effect;
hence, his failure to do so is no sign that he intended
his bargain to terminate upon his death. Similarly,
that the Luzon Surety Co., did not require bondsman
Hemady to execute a mortgage indicates nothing more
than the company’s faith and confidence in the finan-
cial stability of the surety, but not that his obligation
was strictly personal.
The third exception to the transmissibility of ob-
ligations under Article 1311 exists when they are “not
transmissible by operation of law." The provision
makes reference to those cases where the law ex-
presses that the rights or obligations are extinguished
by death, xxx. By contract, the articles of the Civil
Code that regulate guaranty or suretyship (Articles
2047 to 2084) contain no provision that the guaranty
is extinguished upon the death of the guarantor or
the surety.
The lower court sought to infer such a limitation
from Art. 2056, to the effect that “one who is obliged
to furnish a guarantor must present a person who
possesses integrity, capacity to bind himself, and suf-
ficient property to answer for the obligation which he
guarantees.” It will be noted, however, that the law
requires these qualities to be present only at the
time
of the perfection of the contract of guaranty. It is self-
evident that once the contract has become perfected
and binding, the supervening incapacity of the guar-
antor would not operate to exonerate him of the even-
tual liability he has contracted; and if that be true of
his capacity to bind himself, it should also be true of
his integrity, which is a quality mentioned in the arti-
cle alongside the capacity.
xxx xxx xxx
The contracts of suretyship entered into by K.H.

Hemady in favor of Luzon Surety Co. not being ren-
dered intransmissible due to the nature of the under-
taking, nor by the stipulations of the contracts them-
selves, nor by provision of law, his eventual liability
thereunder necessarily passed upon his death to his
heirs. The contracts, therefore, give rise to contingent
claims provable against his estate under Section 5,
Rule 87 (2 Moran, 1952 ed., p. 437; Gaskell & Co. vs.
Tan Sit, 43 Phil. 810, 814).
The rationale of Hemady is reiterated in Santos v. Lumbao,

519 SCRA 408 [2007]
Alvarez vs. Intermediate Appellate Court

185 SCRA 8 (1990)
FERNAN, C.J.:
This is a petition for review on certiorari seeking

the reversal of: (a) the decision of the Fourth Civil
Cases Division of the Intermediate Appellate Court
dated August 31, 1983 in AC-G.R. CV No. 56626 enti-
tled “Jesus Yanes et al. v. Dr. Rodolfo Siason et al.”
affirming the decision dated July 8, 1974 of the Court
of First Instance of Negros Occidental insofar as it or-
dered the petitioners to pay jointly and severally the
private respondents the sum of P20.000.00 represent-
ing the actual value of Lots Nos. 773-A and 773-B of
the cadastral survey of Murcia, Negros Occidental and
reversing the subject decision insofar as it awarded
the sums of P2.000.00, P5.000.00 and P2.000.00 as
actual damages, moral damages and attorney’s fees,
respectively and (b) the resolution of said appellate
court dated May 30, 1984, denying the motion for re-
consideration of its decision.
The real properties involved are two parcels of
land identified as Lot 773-A and Lot 773-B which
were originally known as Lot 773 of the cadastral sur-
vey of Murcia, Negros Occidental. Lot 773, with an
area of 156,549 square meters, was registered in the
name of the heirs of Aniceto Yanes under Original
Certificate of Title No. RO-4858 (8804) issued on Oc-
tober 9, 1917 by the Register of Deeds of Occidental

Negros (Exh. A).
Aniceto Yanes was survived by his children,
Rufino, Felipe and Teodora. Herein private respon-
dents, Estelita, Iluminado and Jesus, are the children
of Rufino who died in 1962 while the other private re-
spondents, Antonio and Rosario Yanes, are children
of Felipe. Teodora was survived by her child, Jovita
(Jovito) Alib. It is not clear why the latter is not in-
cluded as a party in this case.
Aniceto left his children Lots 773 and 823.
Teodora cultivated only three hectares of Lot 823 as
she could not attend to the other portions of the two
lots which had a total area of around twenty-four hec-
tares. The record does not show whether the children
of Felipe also cultivated some portions of the lots but
it is established that Rufino and his children left the
province to settle in other places as a result of the
outbreak of World War II. According to Estelita, from
the “Japanese time up to peace time”, they did not
visit the parcels of land in question but “after libera-
tion", when her brother went there to get their share
of the sugar produced therein, he was informed that
Fortunato Santiago, Fuentebella (Puentevella) and Al-
varez were in possession of Lot 773.
It is on record that on May 19, 1938, Fortunato
D. Santiago was issued Transfer Certificate of Title No.
RF 2694 (29797) covering Lot 773-A with an area of
37,818 square meters. TCT No. RF 2694 describes Lot
773-A as a portion of Lot 773 of the cadastral survey
of Murcia and as originally registered under OCT No.
8804.
The bigger portion of Lot 773 with an area of
118,831 square meters was also registered in the
name of Fortunato D. Santiago on September 6, 1938
under TCT No. RT-2695 (28192). Said transfer certifi-
cate of title also contains a certification to the effect
that Lot 773-B was originally registered under OCT
No. 8804.
On May 30, 1955, Santiago sold Lots 773-A and
773-B to Monico B. Fuentebella, Jr. in consideration
of the sum of P7.000.00. Consequently, on February

20, 1956, TCT Nos. T-19291 and T-19292 were issued
In Fuentebella’s name.
After Fuentebella’s death and during the settle-
ment of his estate, the administratrix thereof (Arsenia
R. Vda. de Fuentebella, his wife) filed in Special Pro-
ceedings No. 4373 in the Court of First Instance of
Negros Occidental, a motion requesting authority to
sell Lots 773-A and 773-B. By virtue of a court order
granting said motion, on March 24, 1958, Arsenia
Vda. de Fuentebella sold said lots for P6.000.00 to
Rosendo Alvarez. Hence, on April 1, 1958. TCT Nos.
T-23165 and T-23166 covering Lots 773-A and 773-B
were respectively issued to Rosendo Alvarez.
Two years later or on May 26, 1960, Teodora
Yanes and the children of her brother Rufino, namely,
Estelita, Iluminado and Jesus, filed in the Court of
First Instance of Negros Occidental a complaint
against Fortunato Santiago, Arsenia Vda. de Fuente-
bella, Alvarez and the Register of Deeds of Negros Oc-
cidental for the “return” of the ownership and posses-
sion of Lots 773 and 823. They also prayed that an
accounting of the produce of the land from 1944 up to
the filing of the complaint be made by the defendants,
that after court approval of said accounting, the share
or money equivalent due the plaintiffs be delivered to
them, and that defendants be ordered to pay plaintiffs
P500.00 as damages in the form of attorney’s fees.
During the pendency in court of said case or on
November 13, 1961, Alvarez sold Lots 773-A, 773-B
and another lot for P25.000.00 to Dr. Rodolfo Siason.
Accordingly, TCT Nos. 30919 and 30920 were issued
to Siason, who, thereafter, declared the two lots in his
name for assessment purposes.
xxx xxx xxx
On October 11, 1963, a decision was rendered
by the Court of First Instance of Negros Occidental in
Civil Case No. 5022, the dispositive portion of which
reads:
WHEREFORE, judgment is rendered, or-
dering the defendant Rosendo Alvarez to recon-
vey to the plaintiffs lots Nos. 773 and 823 of the

Cadastral Survey of Murcia, Negros Occidental,
now covered by Transfer Certificates of Title Nos.
T-23165 and T-23166 in the name of said de-
fendant, and thereafter to deliver the possession
of said lots to the plaintiffs. No special pro-
nouncement as to costs.
SO ORDERED."
xxx xxx xxx
However, execution of said decision proved un-
successful with respect to Lot 773. In his return of
service dated October 20, 1965, the sheriff stated that
he discovered that Lot 773 had been subdivided into
Lots 773-A and 773-B; that they were “in the name”
of Rodolfo Siason who had purchased them from Al-
varez, and that Lot 773 could not be delivered to the
plaintiffs as Siason was “not a party per writ of execu-
tion.”
The execution of the decision in Civil Case No.
5022 having met a hindrance, herein private respon-
dents (the Yaneses) filed on July 31, 1965, in the
Court of First Instance of Negros Occidental a petition
for the issuance of a new certificate of title and for a
declaration of nullity of TCT Nos. T-23165 and T-
23166 issued to Rosendo Alvarez. Thereafter, the
court required Rodolfo Siason to produce the certifi-
cates of title covering Lots 773 and 823.
Expectedly, Siason filed a manifestation stating
that he purchased Lots 773-A, 773-B and 658, not
Lots 773 and 823, “in good faith and for a valuable
consideration without any knowledge of any lien or
encumbrances against said propert(ies)”; that the de-
cision in the cadastral proceeding could not be en-
forced against him as he was not a party thereto; and
that the decision in Civil Case No. 5022 could neither
be enforced against him not only because he was not
a party-litigant therein but also because it had long
become final and executory. Finding said manifesta-
tion to be well-founded, the cadastral court, in its or-
der of September 4, 1965, nullified its previous order
requiring Siason to surrender the certificates of title
mentioned therein.
In 1968, the Yaneses filed an ex-parte motion for

the issuance of an alias writ of execution in Civil Case
No. 5022. Siason opposed it. In its order of September
28, 1968 in Civil Case No. 5022, the lower court, not-
ing that the Yaneses had instituted another action for
the recovery of the land in question, ruled that the
judgment therein could not be enforced against Si-
ason as he was not a party in the case.
The action filed by the Yaneses on February 21,
1968 was for recovery of real property with damages.
Named defendants therein were Dr. Rodolfo Siason,
Laura Alvarez, Flora Alvarez, Raymundo Alvarez and
the Register of Deeds of Negros Occidental. The Yane-
ses prayed for the cancellation of TCT Nos. T-19291
and 19292 issued to Siason (sic) for being null and
void; the issuance of a new certificate of title in the
name of the Yaneses “in accordance with the sheriffs
return of service dated October 20, 1965;” Siason’s
delivery of possession of Lot 773 to the Yaneses; and
if, delivery thereof could not be effected, or, if the is-
suance of a new title could not be made, that the Al-
varezes and Siason jointly and severally pay the
Yaneses the sum of P45.000.00. They also prayed
that Siason render an accounting of the fruits of Lot
773 from November 13, 1961 until the filing of the
complaint; and that the defendants jointly and sever-
ally pay the Yaneses moral damages of P20,000.00
and exemplary damages of PI0,000.00 plus attorney’s
fees of P4,000.00.
In his answer to the complaint, Siason alleged
that the validity of his titles to Lots 773-A and 773-B,
having been passed upon by the court in its order of
September 4, 1965, had become res judicata and the
Yaneses were estopped from questioning said order.
On their part, the Alvarezes stated in their answer
that the Yaneses’ cause of action had been “barred by
res judicata, statute of limitation and estoppel.”
In its decision of July 8, 1974, the lower court
found that Rodolfo Siason, who purchased the prop-
erties in question thru an agent as he was then in
Mexico pursuing further medical studies, was a buyer
in good faith for a valuable consideration. Although
the Yaneses were negligent in their failure to place a

notice of lis pendens “before the Register of Deeds of
Negros Occidental in order to protect their rights over
the property in question” in Civil Case No. 5022, eq-
uity demanded that they recover the actual value of
the land because the sale thereof executed between
Alvarez and Siason was without court approval. The
dispositive portion of the decision states:
“IN VIEW OF THE FOREGOING CONSID-
ERATION, judgment is hereby rendered in the
following manner:
A. The case against the defendant Dr.
Rodolfo Siason and the Register of Deeds are
(sic) hereby dismissed.
B. The defendants, Laura, Flora and
Raymundo, all sumamed Alvarez being the le-
gitimate children of the deceased Rosendo Alva-
rez are hereby ordered to pay jointly and sever-
ally the plaintiffs the sum of P20,000.00 repre-
senting the actual value of Lots Nos. 773-A and
773-B of Murcia Cadastre, Negros Occidental:
the sum of P2.000.00 as actual damages suf-
fered by the plaintiffs: the sum of P5.000.00 rep-
resenting moral damages and the sum of P2.000
as attorney’s fees, all with legal rate of interest
from date of the filing of this complaint up to fi-
nal payment.
C. The cross-claim filed by the defendant
Dr. Rodolfo Siason against the defendants,
Laura, Flora and Raymundo, all sumamed Alva-
rez is hereby dismissed.
D. Defendants, Laura, Flora and Ray-
mundo, all sumamed Alvarez, are hereby or-
dered to pay the costs of this suit.
SO ORDERED."
The Alvarezes appealed to the then Intermediate

Appellate Court which, in its decision of August 31,
1983, affirmed the lower court’s decision “insofar as it
ordered defendants-appellants to pay jointly and sev-
erally the plaintiffs-appellees the sum of P20.000.00
representing the actual value of Lots Nos. 773-A and

773-B of the cadastral survey of Murcia, Negros Occi-
dental, and is reversed insofar as it awarded the sums
of P2,000.00, P5,000.00 and P2,000.00 as actual
damages, moral damages and attorney’s fees, respec-
tively.”
xxx xxx xxx
Petitioners further contend that the liability aris-
ing from the sale of Lots No. 773-A and 773-B made
by Rosendo Alvarez to Dr. Rodolfo Siason should be
the sole liability of the late Rosendo Alvarez or of his
estate, after his death.
Such contention is untenable for it overlooks the
doctrine obtaining in this jurisdiction on the general
transmissibility of the rights and obligations of the
deceased to his legitimate children and heirs. Thus,
the pertinent provisions of the Civil Code state:
“Art. 774. Succession is a mode of acqui-
sition by virtue of which the property, rights and
obligations to the extent of the value of the in-
heritance, of a person are transmitted through
his death to another or others either by his will
or by operation of law.
“Art. 776. The inheritance includes all
the property, rights and obligations of a person
which are not extinguished by his death.
“Art. 1311. Contracts take effect only be-
tween the parties, their assigns and heirs, ex-
cept in case where the rights and obligations
arising from the contract are not transmissible
by their nature, or by stipulation or by provision
of law. The heir is not liable beyond the value of
the property received from the decedent.”
As explained by this Court through Associate
Justice J.B.L. Reyes in the case of Estate of Hemady
vs. Luzon Surety Co., Inc.
“The binding effect of contracts upon the
heirs of the deceased party is not altered by the
provision of our Rules of Court that money debts
of a deceased must be liquidated and paid from

his estate before the residue is distributed
among said heirs (Rule 89). The reason is that
whatever payment is thus made from the state is
ultimately a payment by the heirs or distrib-
utees, since the amount of the paid claim in fact
diminishes or reduces the shares that the heirs
would have been entitled to receive.
“Under our law, therefore, the general rule
is that a party’s contractual rights and obliga-
tions are transmissible to the successors. The
rule is a consequence of the progressive ‘deper-
sonalization’ of patrimonial rights and duties
that, as observed by Victorio Polacco, has char-
acterized 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, x x x”
Petitioners being the heirs of the late Rosendo
Alvarez, they cannot escape the legal consequences of
their father’s transaction, which gave rise to the pre-
sent claim for damages. That petitioners did not in-
herit the property involved herein is of no moment be-
cause by legal fiction, the monetary equivalent thereof
devolved into the mass of their father’s hereditary es-
tate, and we have ruled that the hereditary assets are
always liable in their totality for the payment of the
debts of the estate.
It must, however, be made clear that petitioners
are liable only to the extent of the value of their in-
heritance. With this clarification and considering peti-
tioners’ admission that there are other properties left
by the deceased which are sufficient to cover the
amount adjudged in favor of private respondents, we
see no cogent reason to disturb the findings and con-
clusions of the Court of Appeals.
26 JOTTINGS AND JURISPRUDENCE Arts. 775-777
WHEREFORE, subject to the clarification herein

above stated, the assailed decision of the Court of Ap-
peals is hereby AFFIRMED. Costs against petitioners.
SO ORDERED.
ARTICLE 775. In this Title, “decedent” is the general

term applied to the person whose property is transmitted
through succession, whether or not he left a will. If he left a
will, he is also called the testator, (n)
It is unfortunate that the Code does not use the term “in-
testate” to refer to a decedent who died without a will. This
would have prevented the ambiguity now inherent in the term
“decedent.”
ARTICLE 776. The inheritance includes all the prop-

erty, rights and obligations of a person which are not extin-
guished by his death. (659)
Vide comments under Article 774.

ARTICLE 777. The rights to the succession are trans-
mitted from the moment of the death of the decedent.
(657a)
I. This is practically a literal translation of Article 657 of

the Spanish Code, and perpetuates that Code’s infelicitous
wording:
“Art. 657. Los derechos a la sucesion de una

persona se transmiten desde el momento de su
muerte.”
II. The terminology is infelicitous because the right to the

succession is not transmitted; it becomes vested. To say that it
is transmitted upon death implies that before the decedent’s
death, the right to the succession was possessed by the dece-
dent (which is absurd). To say it vests upon death implies that
before the decedent’s death the right is merely inchoate (which
is correct).
Art. 777 JOTTINGS AND JURISPRUDENCE 27
III. This article merely specifies the time of vesting of the

successional right. It presumes that the person succeeding 1)
has a right to succeed by legitime (compulsory succession), by
will (testamentary succession), or by law (intestate succession);
2) has the legal capacity to succeed; and 3) accepts the succes-
sional portion.
IV. The vesting of the right occurs immediately upon the
decedent’s death; ie. without a moment’s interruption. From
this principle, obvious consequences flow; for example:
A. The law in force at the time of the decedent’s
death will determine who the heirs should be.
Uson vs. Del Rosario
92 Phil. 530 (1953)
BAUTISTA ANGELO, J.:
xxx xxx xxx

Maria Uson was the lawful wife of Faustino Ne-
breda who upon his death in 1945 left the lands in-
volved in this litigation. Faustino Nebreda left no
other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died in
1945, his common-law wife Maria del Rosario took
possession illegally of said lands thus depriving her of
their possession and enjoyment.
xxx xxx xxx
After trial, at which both parties presented their
respective evidence, the court rendered decision or-
dering the defendants to restore to the plaintiff the
ownership and possession of the lands in dispute
without special pronouncement as to costs. Defen-
dants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-
appellee, is the lawful wife of Faustino Nebreda, for-
mer owner of the five parcels of land litigated in the
present case. There is likewise no dispute that Maria
del Rosario, one of the defendants-appellants, was
merely a common-law wife of the late Faustino Ne-
breda with whom she had four illegitimate children,
her now co-defendants. It likewise appears that Faus-

tino Nebreda died in 1945 much prior to the effectivity
of the new Civil Code. With this background, it is evi-
dent that when Faustino Nebreda died in 1945 the
five parcels of land he was seized of at the time
passed from the moment of his death to his only heir,
his widow Maria Uson (Article 657, old Civil Code). As
this Court aptly said, “The property belongs to the
heirs at the moment of the death of the ancestor as
completely as if the ancestor had executed and deliv-
ered to them a deed for the same before his death”
(Ilustre us. Alaras Frondosa, 17 Phil. 321). From that
moment, therefore, the rights of inheritance of Maria
Uson over the lands in question became vested.
xxx xxx xxx
But defendants contend that, while it is true
that the four minor defendants are illegitimate chil-
dren of the late Faustino Nebreda and under the old
Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in
force in June, 1950, they are given the status and
rights of natural children and are entitled to the suc-
cessional rights which the law accords to the latter
(Article 2264 and Article 287, new Civil Code), and
because these successional rights were declared for
the first time in the new code, they shall be given ret-
roactive effect even though the event which gave rise
to them may have occurred under the prior legislation
(Article 2253, new Civil Code).
There is no merit in this claim. Article 2253
above referred to provides indeed that rights which
are declared for the first time shall have retroactive ef-
fect even though the event which gave rise to them
may have occurred under the former legislation, but
this is so only when the new rights do not prejudice
any vested or acquired right of the same origin. Thus,
said article provides that "if a right should be declared
for the first time in this Code, it shall be effective at
once, even though the act or event which gives rise
thereto may have been done or may have occurred
under the prior legislation, provided said new right
does not prejudice or impair any vested or acquired
right, of the same origin.’' As already stated in the

early part of this decision, the right of ownership of
Maria Uson over the lands in question became vested
in 1945 upon the death of her late husband and this
is so because of the imperative provision of the law
which commands that the rights to succession are
transmitted from the moment of death (Article 657,
old Civil Code). The new right recognized by the new
Civil Code in favor of the illegitimate children of the
deceased cannot, therefore, be asserted to the im-
pairment of the vested right of Maria Uson over the
lands in dispute.
xxx xxx xxx
Wherefore, the decision appealed from is af-
firmed xxx.
As pointed out in Montilla vs. Montilla (2 SCRA 695

[1961]): “...since it appears that [the decedent] Gil Montilla,
whose estate is now subject of intestate proceedings, died on
July 20, 1946, long before August 30, 1950, when the new
Civil Code took effect, the old Code must be made to apply to
the instant case.”
B. Ownership passes to the heir at the very moment
of death, who therefore, from that moment ac-
quires the right to dispose of his share.
De Boija vs. Vda. de Boija
46 SCRA 577 (1972)
REYES, J.B.L., J.:
xxx Francisco de Boija, upon the death of his

wife Josefa Tangco on 6 October 1940, filed a petition
for the probate of her will xxx. The will was probated
on 2 April 1941. In 1946, Francisco de Borja was ap-
pointed executor and administrator: in 1952, their
son, Jose de Boija, was appointed co-administrator.
When Francisco died, on 14 April 1954, Jose became
the sole administrator of the testate estate of his
mother, Jose (sic) Tangco. While a widower Francisco
de Borja allegedly took unto himself a second wife,
Tasiana Ongsingco. Upon Francisco’s death, Tasiana

instituted testate proceedings in the Court of First In-
stance of Nueva Ecija, where, in 1955, she was ap-
pointed special administratrix, xxx.
The relationship between the children of the first
marriage and Tasiana Ongsingco has been plagued
with several court suits and counter-suits; xxx. In or-
der to put an end to all these litigations, a compro-
mise agreement was entered into on 12 October 1963,
by and between “[T]he heir and son of Francisco de
Borja by his first marriage, namely, Jose de Boija
personally and as administrator of the Testate Estate
of Josefa Tangco,” and “(TJhe heir and surviving
spouse of Francisco de Boija by his second marriage,
Tasiana Ongsingco Vda. de Boija, assisted by her
lawyer, Atty. Luis Panaguiton, Jr.” xxx.
xxx xxx xxx
On 16 May 1966, Jose de Boija submitted for
Court approval the agreement of 12 October 1963 to
the Court of First Instance of Rizal xxx and again, on
8 August 1966, to the Court of First Instance of
Nueva Ecija xxx. Tasiana Ongsingco Vda. de Borja
opposed in both instances. The Rizal court approved
the compromise agreement, but the Nueva Ecija court
declared it void and unenforceable. Special adminis-
tratrix Tasiana Ongsingco vda. de Borja appealed the
Rizal Court’s order of approval xxx while administra-
tor Jose de Boija appealed the order of disapproval
xxx by the Court of First Instance of Nueva Ecija.
xxx xxx xxx
"In assailing the validity of the agreement of 12
October 1963, Tasiana Ongsingco and the Probate
Court of Nueva Ecija rely on this Court’s decision in
Guevara vs. Guevara, 74 Phil. 479, wherein the
Court’s majority held the view that the presentation of
a will for probate is mandatory and that the settle-
ment and distribution of an estate on the basis of in-
testacy when the decedent left a will, is against the
law and public policy. It is likewise pointed out by ap-
pellant Tasiana Ongsingco that Section 1 of Rule 74 of
the Revised Rules explicitly conditions the validity of
an extrajudicial settlement of a decedent’s estate by

agreement between heirs, upon the facts that “(if) the
decedent left no will and no debts, and the heirs are
all of age, or the minors are represented by their judi-
cial and legal representatives . . . " The will of Fran-
cisco de Boija having been submitted to the Nueva
Ecija Court and still pending probate when the 1963
agreement was made, those circumstances, it is ar-
gued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of
the compromise agreement, Jose de Boija stresses
that at the time it was entered into, on 12 October
1963, the governing provision was Section 1, Rule 74
of the original Rules of Court of 1940, which allowed
the extrajudicial settlement of the estate of a deceased
person regardless of whether he left a will or not. He
also relies on the dissenting opinion of Justice Moran,
in Guevara vs. Guevara, 74 Phil. 479, wherein was
expressed the view that if the parties have already di-
vided the estate in accordance with a decedent’s will,
the probate of the will is a useless ceremony; and if
they have divided the estate in a different manner, the
probate of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is
not applicable to the case at bar. This is apparent
from an examination of the terms of the agreement
between Jose de Borja and Tasiana Ongsingco. Para-
graph 2 of said agreement specifically stipulates that
the sum of P800.000 payable to Tasiana Ongsingco—
“shall be considered as full—complete
payment—settlement of her hereditary share in
the estate of the late Francisco de Borja as well
as the estate of Josefa Tangco xxx and to any
properties bequeathed or devised in her favor by
the late Francisco de Boija by Last Will and Tes-
tament or by Donation Inter Vivos or Mortis
Causa or purportedly conveyed to her for con-
sideration or otherwise.”
This provision evidences beyond doubt that the
ruling in the Guevara case is not applicable to the
cases at bar. There was here no attempt to settle or
32 JOTTINGS AND JURISPRUDENCE Art. I l l
distribute the estate of Francisco de Boija among the

heirs thereto before the probate of his will. The clear
object of the contract was merely the conveyance by
Tasiana Ongsingco of any and all her individual share
and interest, actual or eventual, in the estate of Fran-
cisco de Boija and Josefa Tangco. There is no stipula-
tion as to any other claimant, creditor or legatee. And
as a hereditary share in a decedent’s estate is trans-
mitted or vested immediately from the moment of the
death of such causante or predecessor in interest
(Civil Code of the Philippines, Art. 777) there is no le-
gal bar to a successor (with requisite contracting ca-
pacity) disposing of her or his hereditary share imme-
diately after such death, even if the actual extent of
such share is not determined until the subsequent
liquidation of the estate. Of course, the effect of such
alienation is to be deemed limited to what is ulti-
mately adjudicated to the vendor heir. However, the
aleatoiy character of the contract does not affect the
validity of the transaction; neither does the coetane-
ous agreement that the numerous litigations between
the parties xxx are to be considered settled and
should be dismissed, although such stipulation, as
noted by the Rizal Court, gives the contract the char-
acter of a compromise that the law favors, for obvious
reasons, if only because it serves to avoid a multiplic-
ity of suits.
C. The heirs have the right to be substituted for the de-

ceased as party in an action that survives.
Bonilla vs. Barcena
71 SCRA 491 (1976)
MARTIN, J.:
xxx xxx xxx

On March 31, 1975 Fortunata Barcena, mother
of minors Rosalio Bonilla and Salvacion Bonilla and
wife of Ponciano Bonilla, instituted a civil action in the
Court of First Instance of Abra, to quiet title over cer-
tain parcels of land located in Abra.
On May 9, 1975, defendants filed a written mo-

tion to dismiss the complaint, but before the hearing
of the motion to dismiss, the counsel for the plaintiff
moved to amend the complaint in order to include
certain allegations therein. The motion to amend the
complaint was granted and on July 17, 1975, plain-
tiffs filed their amended complaint.
On August 4, 1975, the defendants filed another
motion to dismiss the complaint on the ground that
Fortunata Barcena is dead and, therefore, has no le-
gal capacity to sue. Said motion to dismiss was heard
on August 14, 1975. In said hearing, counsel for the
plaintiff confirmed the death of Fortunata Barcena
and asked for substitution by her minor children and
her husband, the petitioners herein; but the court af-
ter the hearing immediately dismissed the case on the
ground that a dead person cannot be a real party in
interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff re-
ceived a copy of the order dismissing the complaint
and on August 23, 1975, he moved to set aside the
order of the dismissal pursuant to Sections 16 and 17
of Rule 3 of the Rules of Court.
On August 28, 1975, the court denied the mo-
tion for reconsideration filed by counsel for the plain-
tiff for lack of merit. On September 1, 1975, counsel
for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion
Bonilla be allowed to substitute their deceased
mother, but the court denied the counsel’s prayer for
lack of merit. From the order, counsel for the de-
ceased plaintiff filed a second motion for reconsidera-
tion of the order dismissing the complaint claiming
that the same is in violation of Sections 16 and 17,
Rule 3 of the Rules of Court but the same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and
sets aside its order dismissing the complaint in Civil
Case No. 856 and its orders denying the motion for
reconsideration of said order of dismissal. While it is
true that a person who is dead cannot sue in court,
yet he can be substituted by his heirs in pursuing the

case up to its completion. The records of this case
show that the death of Fortunata Barcena took place
on July 9, 1975 while the complaint was filed on
March 31, 1975. This means that when the complaint
was filed on March 31, 1975, Fortunata Barcena was
still alive, and therefore, the court had acquired juris-
diction over her person. If thereafter she died, the
Rules of Court prescribes the procedure whereby a
party who died during the pendency of the proceeding
can be substituted.
xxx xxx xxx
x x x . Article 777 of the Civil Code provides “that
the rights to the succession are transmitted from the
moment of the death of the decedent.” From the mo-
ment of the death of the decedent, the heirs become
the absolute owners of his property, subject to the
rights and obligations of the decedent, and they can-
not be deprived of their rights thereto except by the
methods provided for by law. The moment of death is
the determining factor when the heirs acquire a defi-
nite right to the inheritance whether such right be
pure or contingent. The right of the heirs to the prop-
erty of the deceased vests in them even before judicial
declaration of their being heirs in the testate or intes-
tate proceedings. When Fortunata Barcena, therefore,
died, her claim or right to the parcels of land in litiga-
tion in Civil Case No. 856, was not extinguished by
her death but was transmitted to her heirs upon her
death. Her heirs have thus acquired interest in the
properties in litigation and became parties in interest
in the case. There is, therefore, no reason for the re-
spondent Court not to allow their substitution as par-
ties in interest for the deceased plaintiff.
x x x . The question as to whether an action sur-
vives or not depends on the nature of the action and
the damage sued for. In the causes of action which
survive the wrong complained affects primarily and
principally property and property rights, the injuries
to the person being merely incidental, while in the
causes of action which do not survive the injury com-
plained of is to the person, the property and rights of
Arts. 778-780 JOTTINGS AND JURISPRUDENCE 35
properly affected being incidental. Following the fore-

going criterion, the claim of the deceased plaintiff
which is an action to quiet title over the parcels of
land in litigation affects primarily and principally
property and property rights and therefore is one that
survives even after her death. It is, therefore, the duty
of the respondent Court to order the legal representa-
tive of the deceased plaintiff to appear and to be sub-
stituted for her.
It should be emphasized that the operation of Article 777

is at the very moment of the decedent’s death; Le. the trans-
mission by succession occurs at the precise moment of death
and therefore the heir, devisee, or legatee is legally deemed to
have acquired ownership at that moment (even if, particularly
in the heir’s case, he will generally not know how much he will
be inheriting and what properties he will ultimately be receiv-
ing), and not at the time of declaration of heirs, or partition, or
distribution.
ARTICLE 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed, (n)
ARTICLE 779. Testamentary succession is that which

results from the designation of an heir, made in a will exe-
cuted in the form prescribed by law. (n)
ARTICLE 780. Mixed succession is that effected
partly by will and partly by operation of law. (n)
I. These articles are derived from Article 658 of the Span-
ish Code.4
4 “Art. 658. La sucesion se defiere por la uohmtad del hombre manifestada
en testamento y, a Jalta de este, por disposition de la ley.

La primera se llama testamentaria, y la segunda legitima.
Podra tambien defertrse en una parte por voluntad del hombre, y en otra
por disposition de la ley. ” (Codigo Civil)
Sucesion testamentaria (testamentary succes-

sion)—aquella que se defiere por la voluntad del hom-
bre manifestada en testamento.
Sucesion legitima (intestate succession)—aquella
que se defiere por disposicion de la ley, a falta de tes-
tamento.
Sucesion mixta (mixed succession)—aquella que
se defiere en una parte por voluntad del hombre, y en
otra por disposicion de la ley.
II. Article 778 enumerates three kinds of succession; the

first and the third are defined in the two succeeding articles
(testamentary in Article 779, and mixed in Article 780); legal or
intestate succession is inexplicably not defined. Curiously, the
draft Code contained a definition of this kind of succession,
which, however, seems to have gotten lost in the legislative
mill. The lost definition: “Intestate or legal succession takes
place by operation of law in the absence of a valid will.”
III. Some observations on the enumeration:
1. The enumeration cannot satisfactorily accommo-
date the system of legitimes.
In this scheme, where does the legitime fit in? Not precisely
in legal or intestate succession because:
a) legal or intestate succession operates only in
default of a will (Vide Articles 960 and 961),
while the legitime operates whether or not
there is a will, in fact prevails over a will;
b) there are instances where the rules on le-
gitime (Articles 887 et seq.) operate, to the ex-
clusion of the rules on intestacy (Articles 960
et seq.)
It is best, therefore, for clarity, to classify succession to
the legitime as a separate and distinct kind of succession,
which, for want of a better term, can be denominated com-
pulsory succession.
2. Until the effectivity date of the Family Code, there

was one exceptional case of succession by con-
tract (contractual succession)—found in Article
130 of the Civil Code:
“Art. 130. The future spouses may give each
other in their marriage settlements as much as one-
fifth of their present property, and with respect to
their future property, only in the event of death, to the
extent laid down by the provisions of this Code refer-
ring to testamentary succession.” (1331a)
Donations propter nuptias of future property, made by one

of the future spouses to the other, took effect mortis causa, and
had only to be done in the marriage settlements, which were
governed only by the Statute of Frauds (Article 122, Civil Code).
It was a true case of succession by contract in substance and
in form, the only instance of contractual succession in our civil
law.
This special kind of succession has been eliminated, how-
ever, by the Family Code (Article 84, par. 2):
xxx xxx xxx
“Donations of future property shall be governed
by the provisions on testamentary succession and the
formalities of wills.” (130a)
Since under this provision, any donation of future prop-

erty between the affianced couple is to be governed by the rules
of testamentary succession and the forms of wills, contractual
succession no longer exists in this jurisdiction. Such a dona-
tion becomes an ordinary case of testamentary succession.
3. Different Kinds of Succession:
1. Compulsory—succession to the legitime (This
prevails over all other kinds.)
2. Testamentar
y—succession by will.
3. Intestate—succession in default of a will.
4. Mixed—not a distinct kind really, but a combi-
nation of any two or all of the first three.
ARTICLE 781. The inheritance of a person includes

not only the property and the transmissible rights and obli-
gations existing at the time of his death, but also those
which have accrued thereto since the opening of the suc-
cession. (n)
Article 781 is best deleted; it serves only to confuse. The

inheritance includes only those things enumerated in Article
776. Whatever accrues thereto after the decedent’s death
(which is when the succession opens) belongs to the heir, not
by virtue of succession, but by virtue of ownership.
To say, as Article 781 does, that accruals to the inheri-
tance after the decedent’s death are included in the inheritance
is to negate the principle in Article 777 that transmission takes
place precisely at the moment of death.
If, for instance, X dies in January 1990 and his son Y in-
herits a mango plantation from him, the fruits produced by the
plantation in May 1990 belong to Y by accession, not by suc-
cession. This is so even if Y does not actually receive the land
until December 1990.
Article 781 should have left well enough alone.
Quaerendum. If the assets left behind by the decedent
are not sufficient to pay the debts, may the creditors claim the
fruits produced by the decedent’s property after his death? Or
do these fruits pertain to the heirs?
ARTICLE 782. An heir is a person called to the suc-

cession either by the provision of a will or by operation of
law.
Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a
will, (n)
I. The distinction between heir and devisee/legatee was

much more important in the old law than it is today. The dis-
tinction, however, even in our Civil Code, is not idle. On this
distinction depends the correct application of Article 854 (pre-
terition). In cases of preterition the institution of heir is an-
nulled, while the institution of legatees and devisees is effective

to the extent that the legitimes are not impaired.
II. 1) The codal definitions are neither clear nor very
helpful. They are so open-ended that an heir can fall under the
definition of a legatee/devisee and vice-versa.
(a) A testamentary provision which reads: “I give
X my fishpond in Navotas”—By the definition
of heir, is not X called to the succession by
provision of a will and therefore an heir?
(b) A testamentary provision which reads: “I

give X one-fourth of my estate”—If in the par-
tition, X receives a fishpond, can X, by defini-
tion, not be considered a devisee, having re-
ceived a gift of real property by will?
2) The definitions of the Spanish Code, if taken in
conjunction with Castan’s explanations are more helpful:
“Art. 660. Llamase heredero al que sucede a
titulo universal, y legatario al que sucede a titulo par-
ticular.”
Castan:
heir—one who succeeds to the whole or an aliquot part of
the inheritance.
devisee/legatee—those who succeed to definite, specific,
and individual properties.
Chapter 2
TESTAMENTARY SUCCESSION
SECTION 1.—WILLS
SUBSECTION I.—WILLS IN GENERAL
ARTICLE 783. A will is an act whereby a person is

permitted, with the formalities prescribed by law, to con-
trol to a certain degree the disposition of his estate, to take
effect after his death. (667a)
I. The operative words in the definition:

1. Act—The definition of a will as an act is too broad
and should have been more clearly delimited with
a more specific term such as instrument or docu-
ment, in view of the provision of Article 804 that
“every will must be in writing.” Nuncupative, or
oral, wills are not recognized in our Code.
The codal definition of will as act retains the definition in

Article 667 of the Spanish Code, which provides:
“Art. 667. El acto por el cual una persona dis-

pone para despu.es de su muerte de todos sus bienes o
de parte de ellos, se llama testamento.”
But the Spanish codal definition was accurate, because,

under the Spanish Code, unlike ours, a will was not always
written, e.g. in certain cases, a military will could be oral:
“Art. 720, 1st par. Durante una batalla, asalto,

combale, y generalmente en todo peligro proximo de ac-
cion de guerra, podra otorgarse testamento militar de
palabra ante dos testigos. ”
40
Art. 783 TESTAMENTARY SUCCESSION 41
2. Permitted—will-making Is purely statutory.

3. Formalities prescribed by law—the requirement of
form prescribed respectively for attested and holo-
graphic wills.
4. Control to a certain degree—The testator’s power of
testamentary disposition is limited by the rules on
legitimes.
5. After his death—Testamentary succession, like all
other kinds of succession in our Code, is mortis
causa.
Vitug vs. Court of Appeals

183 SCRA 755 (1990)
SARMIENTO, J.:
This case is a chapter in an earlier suit decided

by the Court involving the probate of the two wills of
the late Dolores Luchangco Vitug, who died in New
York, U.S.A.; on November 10, 1980, naming private
respondent Rowena Faustino-Corona executrix. In
our said decision, we upheld the appointment of
Nenita Alonte as co-special administrator of Mrs. Vi-
tug’s estate with her (Mrs. Vitug’s) widower, petitioner
Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a
motion asking for authority from the probate court to
sell certain shares of stock and real properties belong-
ing to the estate to cover allegedly his advances to the
estate in the sum of P667.731.66, plus interests,
which he claimed were personal funds. As found by
the Court of Appeals, the alleged advances consisted
of P58,147.40 spent for the payment of estate tax,
P518.834.27 as deficiency estate tax, and P90.749.99
as “increment thereto.” According to Mr. Vitug, he
withdrew the sums of P518,834.27 and P90.749.99
from savings account No. 35342-038 of the Bank of
America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the
motion to sell on the ground that the same funds
withdrawn from savings account No. 35342-038 were

conjugal partnership properties and part of the estate,
and hence, there was allegedly no ground for reim-
bursement. She also sought his ouster for failure to
include the sums in question for inventory and for
“concealment of funds belonging to the estate.”
Vitug insists that the said funds are his exclu-
sive property having acquired the same through a
survivorship agreement executed with his late wife
and the bank on June 19, 1970. The agreement pro-
vides:
We hereby agree with each other and with
the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter re-
ferred to as the BANK), that all money now or
hereafter deposited by us or any or either of us
with the BANK in our joint savings current ac-
count shall be the property of all or both of us
and shall be payable to and collectible or with-
drawable by either or any of us during our life-
time, and after the death of either or any of us
shall belong to and be the sole property of the
survivor or survivors, and shall be payable to
and collectible or withdrawable by such survivor
or survivors.
We further agree with each other and the
BANK that the receipt or check of either, any or
all of us during our lifetime, or the receipt or
check of the survivor or survivors, for any pay-
ment or withdrawal made for our above-
mentioned account shall be valid and sufficient
release and discharge of the BANK for such
payment or withdrawal.
The trial court upheld the validity of this agree-
ment and granted “the motion to sell some of the es-
tate of Dolores L. Vitug, the proceeds of which shall be
used to pay the personal funds of Romarico Vitug in
the total sum of P667,731.66 x x x.”
On the other hand, the Court of Appeals, in the
petition for certiorari filed by the herein private re-
spondent, held that the above-quoted survivorship
agreement constitutes a conveyance mortis causa

which “did not comply with the formalities of a valid
will as prescribed by Article 805 of the Civil Code,”
and secondly, assuming that it is a mere donation in-
ter vivos, it is a prohibited donation under the provi-
sions of Article 133 of the Civil Code.
xxx xxx xxx
In his petition, Vitug, the surviving spouse, assails the
appellate court’s ruling on the strength of our decisions in
Rivera v. People’s Bank and Trust Co., 73 Phil. 546 (1942)
and Macam v. Gatmaitan, 64 Phil. 187 (1937) in which we
sustained the validity of “survivorship agreements” and
considering them as aleatory contracts.
The petition is meritorious.
The conveyance in question is not, first of all,
one of mortis causa, which should be embodied in a
will. A will has been defined as “a personal, solemn,
revocable and free act by which a capacitated person
disposes of his property and rights and declares or
complies with duties to take effect after his death.” In
other words, the bequest or devise must pertain to the
testator. In this case, the monies subject of savings
account No. 35342-038 were in the nature of conju-
gal funds. In the case relied on, Rivera v. People’s
Bank and Trust Co., we rejected claims that a survi-
vorship agreement purports to deliver one party’s
separate properties in favor of the other, but simply,
their joint holdings:
xxx xxx xxx
There is no showing thatthefunds
exclusively be-
longed to one party, and hence it must be presumed to be
conjugal, having been acquired during the existence of the
marital relations.
Neither is the survivorship agreement a donation
inter vivos, for obvious reasons, because it was to take
effect after the death of one party. Secondly, it is not a
donation between the spouses because it involved no
conveyance of a spouse’s ownproperties to the other.
xxx xxx xxx
The validity of the contract seems debatable by

reason of its “survivor-take-all” feature, but in reality,
that contract imposed a mere obligation with a term,
the term being death. Such agreements are permitted
by the Civil Code.
Under Article 2010 of the Code:

Art. 2010. By an aleatory contract, one of
the parties or both reciprocally bind themselves
to give or to do something in consideration of
what the other shall give or do upon the hap-
pening of an event which is uncertain, or which
is to occur at an indeterminate time.
xxx xxx xxx

The conclusion is accordingly unavoidable that
Mrs. Vitug having predeceased her husband, the lat-
ter has acquired upon her death a vested right over
the amounts under savings account No. 35342-038 of
the Bank of America. Insofar as the respondent court
ordered their inclusion in the inventory of assets left
by Mrs. Vitug, we hold that the court was in error. Be-
ing the separate property of petitioner, it forms no
more part of the estate of the deceased.
xxx xxx xxx
II. Characteristics of Wills:
1. purely personal (Articles 784-785; 787)

2. free and intelligent (Article 839)
3. solemn and formal (Articles 804-814; 820-821)
4. revocable or ambulatory (Article 828)
5. mortis causa (Article 783)
6. individual (Article 818)
7. executed with animus testandi (Article 783)
8. executed with testamentary capacity (Articles 796-
803)
9. unilateral (Article 783)
10 dispositive of property (Article 783)
.
11 statutory (Article 783)
.
Re: #1—See comments under Articles 784-785 and 787.

Re: #2—The testator’s consent should not be vitiated by
the causes mentioned in Article 839, pars. 2-6 (insanity, vio-
lence, intimidation, undue influence, fraud, mistake).
Re: #3—The requirements of form depend on whether the
will is attested or holographic. Articles 805-808; 820-821 gov-
ern attested wills. Articles 810-814 govern holographic wills.
Article 804 applies to both.
Re: #4—See comments under Article 828.
Re: #5—A necessary consequence of Articles 774 and 777.
Re: #6—Joint wills are prohibited in this jurisdiction. See
comments under Article 818.
Re: #7— This characteristic is implied in Article 783.
In one interesting case, the Court of Appeals had occasion

to pass upon whether or not Rizal’s valedictory poem possessed
this characteristic and consequently, whether or not it was a
will. The crucial words are found in the poem’s thirteenth
stanza:
“Ahi te dejo todo, mis padres, mis amores.”
(To you I leave everything, my parents, my
loves.)
Declared the Court:
“An instrument which merely expresses a last
wish as a thought or advice but does not contain a
disposition of property and was not executed with
animus testandi, cannot legally be considered a will.
Such instrument, like Rizal’s ‘Ultimo Adios,’ may be
considered a will in the grammatical sense, but not in
the legal or juridical sense.” (Monttnola v. Herbosa, 3
CA Rep. 377)
(The Court had, a paragraph earlier, observed “Rizal’s

‘Ultimo Adios’ is a literaiy piece of work and was so intended.”
A perceptive and accurate comment. The Court should have left
well enough alone. The sentence that follows is not as enlight-
ening: “If it were intended as a will the poem would have been
entitled ‘Ultima Voluntad’ and not ‘Ultimo Adios.’ ” Prescinding

from the unintended comic effect of this statement, to this au-
thor’s knowledge, Rizal’s valedictory poem is untitled.)
Re: #8 — See comments under Articles 796-803.
Re: #9 — This characteristic is implied in Article 783.
Re: #10 —Article 783 seems to consider the disposition
of the testator’s estate mortis causa as the purpose of will-
making.
Re: #11—Vide no. 2 of comments under Article 783.
Quaerenda:
1. Would a document merely appointing an executor,
not containing any dispositive provision, have to
comply with the formal requirements of a will in order
to be effective? Would such a document have to be
probated?
2. Would a document containing only a disinheriting
clause have to be in the form of a will and be pro-
bated? (Vide Article 916)
In Seangio v. Reyes (508 SCRA 177 [2006]) the document,

a holographic one, (entitled Kasulatan ng Pag-aalis rig Manaj,
contained only a clause of disinheritance (of one of the testa-
tor’s sons). In the probate proceedings, one of the grounds of
the motion to dismiss was that the document “does not contain
any disposition of the estate of the deceased and thus does not
meet the definition of a will under Article 783 of the Civil Code.”
The Court held that the document, “although it may ini-
tially come across as a mere disinheritance instrument, con-
forms to the formalities of a holographic will ... An intent to
dispose mortis causa can be clearly deduced from the terms of
the instrument, and while it does not make an affirmative dis-
position of the [testator’s] property, the disinheritance of [the
son] nonetheless, is an act of disposition in itself. In other
words, the disinheritance results in the disposition of the prop-
erty of the testator ... in favor of those who would succeed in
the absence of [the disinherited heir].”
Arts. 784-786 TESTAMENTARY SUCCESSION 47
The clear implication of Seangio is that a document which

contains only a provision of disinheritance is, in legal contem-
plation, a will and must be admitted to probate to be effective.
ARTICLE 784. The making of a will is a strictly per-
sonal act; it cannot be left in whole or in part to the discre-
tion of a third person, or accomplished through the instru-
mentality of an agent or attorney. (670a)
I. This provision gives the will its purely personal charac-
ter.
II. Non-delegability of will-making—
1. It is the exercise of the disposing power that can-
not be delegated. Obviously, mechanical aspects,
such as typing, do not fall within the prohibition.
2. What constitute the exercise of the disposing
power? The following article provides the answer.
ARTICLE 785. The duration or efficacy of the desig-
nation of heirs, devisees or legatees, or the determination
of the portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person.
(670a)
The following constitute the essence of will-making or the
exercise of the disposing power, and thus are non-delegable:
1. the designation of heirs, devisees, or legatees;
2. the duration or efficacy of such designation (including
such things as conditions, terms, substitutions);
3. the determination of the portions they are to receive.
ARTICLE 786. The testator may entrust to a third

person the distribution of specific property or sums of
money that he may leave in general to specified classes or
causes, and also the designation of the persons, institutions
or establishments to which such property or sums of money
are to be given or applied. (671a)
I. This constitutes an exception to the rule of non-

delegability of will-making. Without this provision, the things
allowed to be delegated here would be non-delegable.
II. Under this provision:
A. Two things must be determined by the testator:
1. the property or amount of money to be given;
and
2. the class or the cause to be benefited.
B. Two things may be delegated by the testator:
1. the designation of persons, institutions, or es-
tablishments within the class or cause;
2. the manner of distribution.
Quaerendum. Suppose the testator specified the recipients

(by specific designation) but left to the third person the deter-
mination of the sharing, e.g. “I leave P500.000 for the PNRC,
the SPCA, and the Tala Leprosarium, to be distributed among
these institutions in such proportions as my executor may de-
termine.”
Is this valid?
One view. The letter of Article 785 seems to prohibit this,
because the recipients are referred to by name and therefore
the portions they are to take must be determined by the testa-
tor. Article 786 applies only where the testator merely specifies
the class or the cause but not the specific recipients.
Contra: This actually involves a lesser discretion for the
third person than the instances allowed by Article 786 and
should be allowed.
ARTICLE 787. The testator may not make a testa-
mentary disposition in such manner that another person
has to determine whether or not it is to be operative, (n)
I. Article 2065, par. 1 of the German Civil Code, from
which this article is derived, provides:
"2065. [Keine Bestimmung durch Dritte] (1)

Der Erblasser kann eine letztwillige Verfugung nicht
in der Weise treffen, daJ3 ein anderer zu bestimmen
hat, ob sie gelten oder nicht gelten soli.
“(2) Der Erblasser kann die Bestimmung der
Person, die eine Zuwendung erhalten soil, sowie die
Bestimmung des Gegenstandes der Zuwendung nicht
einem anderen uberlassen.”1
II. 1) This rule is consistent with, and reinforces, the

purely personal character of a will, laid down in Article 784.
2) This article should be interpreted rationally. It is
not to be so interpreted as to make it clash with the principle,
expressed later in this Code (Articles 1041-1057) that the heir
is free to accept or reject the testamentary disposition.
What this article prohibits is the delegation to a third per-
son of the power to decide whether a disposition should take
effect or not; e.g. “I leave 1/8 of my estate to A, and I authorize
B to decide whether this disposition should be given effect or
not.” This is prohibited. A, however, is free (indeed, cannot be
deprived of the freedom) to accept or renounce the testamen-
tary benefit.
The next seven articles lay down the rules of construction
and interpretation.
ARTICLE 788. If a testamentary disposition admits of

different interpretations, in case of doubt, that inter-
pretation by which the disposition is to be operative shall
be preferred, (n)
ARTICLE 789. When there is an imperfect descrip-

tion, or when no person or property exactly answers the de-
scription, mistakes and omissions must be corrected, if the
error appears from the context of the will or from extrinsic
1 “2065. [No determination by third person] [1] The testator may not
make a testamentary disposition in such a manner that another person has to

determine whether it will be effective or will not be effective.
“(2] The testator may not leave to another person the designation of the
person who is to receive a gift nor the designation of the content of the gift.”
(German Civil Code]
evidence, excluding the oral declarations of the testator as

to his intention; and when an uncertainty arises upon the
face of the will, as to the application of any of its provi-
sions, the testator’s intention is to be ascertained from the
words of the will, taking into consideration the circum-
stances under which it was made, excluding such oral dec-
larations. (n)
ARTICLE 790. The words of a will are to be taken in

their ordinary and grammatical sense, unless a clear inten-
tion to use them in another sense can be gathered, and that
other can be ascertained.
Technical words in a will are to be taken in their tech-

nical sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will
was drawn solely by the testator, and that he was unac-
quainted with such technical sense. (675a)
ARTICLE 791. The words of a will are to receive an

interpretation which will give to every expression some ef-
fect, rather than one which will render any of the expres-
sions inoperative; and of two modes of interpreting a will,
that is to be preferred which will prevent intestacy, (n)
ARTICLE 792. The invalidity of one of several dispo-

sitions contained in a will does not result in the invalidity
of the other dispositions, unless it is to be presumed that
the testator would not have made such other dispositions if
the first invalid disposition had not been made, (n)
ARTICLE 793. Property acquired after the making of

a will shall only pass thereby, as if the testator had pos-
sessed it at the time of making the will, should it expressly
appear by the will that such was his intention, (n)
ARTICLE 794. Every devise or legacy shall convey all

the interest which the testator could devise or bequeath in
the property disposed of, unless it clearly appears from the
will that he intended to convey a less interest, (n)
Article 788:
I. This is practically a literal translation of Article 2084 of
the BGB:
“2084. [Verschiedene Auslegungsmogglichkei-

ten] LaJ3t der Inhalt einer letzwilligen Verfugung ver-
schiedene Auslegungen zu, so ist im Zwelfel dlejenige
Auslegung vorzuzlehen, bel welcher die Verfugung Er-
folg habben kann.”2
II. The underlying principle here is that testacy is pre-

ferred to intestacy, because the former is the express will of the
decedent whereas the latter is only his implied will.
III. In statutory construction, the canon is worded thus:
“Ut res magis valeat quam pereat.”—That the thing may rather
be effective than be without effect.
IV. A similar principle in contractual interpretation is
found in Article 1373.3
Article 789:
I. Two kinds of ambiguity referred to in this article—
A. Latent—Not obvious on the face of the will:
“When there Is an Imperfect description, or when
no person or property exactly answers the descrip-
tion. . .”
1. latent as to person—“I institute to 1/4 of my es-

tate my first cousin Jose” (and the testator has
more than one first cousin named Jose).
2 “2084. [Different ways of interpretation] If the content of a testamen-
tary disposition admits of various interpretations, in case of doubt, the inter-

pretation shall be preferred under which the disposition may have operative
effect.”
3 “Art. 1373. If some stipulation of any contract should admit of several
meanings, it shall be understood as bearing that import which is most ade-

quate to render it effectual."
2. latent as to property—“I devise to my cousin

Pacifico my fishpond in Roxas City” (and the tes-
tator has more than one fishpond in Roxas City).
In neither case does there appear to be ambiguity on the
face of the will; the ambiguity is latent (latere—to be hidden; to
be concealed)
B. Patent— Obvious on the face of the will:
“When an uncertainty arises upon the face of the will, as
to the application of any of its provisions. .
1. patent as to person—“I institute to 1/4 of my es-
tate some of my first cousins.”
2. patent as to property—“I bequeath to my cousin
Pacifico some of my cars.”
In both cases the ambiguity is evident from a reading of
the testamentary provisions themselves; the ambiguity is patent
(patere—to be exposed).
II. How to deal with ambiguities:

A. The provisions of this article do not make a dis-
tinction in the solution of the problem of ambigui-
ties—whether latent or patent. Hence, the distinc-
tion between the two kinds of ambiguity is, in the
light of the codal provisions, an all but theoretical
one.
B. 1. The ambiguity should, as far as possible, be
cleared up or resolved, in order to give effect
to the testamentary disposition. (Again the
principle: Testacy is preferred to intestacy).
2. Method of resolving ambiguity, whether
latent or patent: any evidence admissible and
relevant, excluding in either case oral decla-
rations of testator as to his intention.
The reason for the statutory exclusion is obvious:

can a dead man refute a tale?
Article 790:
Similar rules are laid down in Rule 130, Sections 10 and
14 of the Rules of Court:
“Sec. 10. Interpretation of a writing according to

its legal meaning.—The language of a writing is to be
interpreted according to the legal meaning it bears in
the place of its execution, unless the parties intended
otherwise."
“Sec. 14. Peculiar signification of terms.—The
terms of a writing are presumed to have been used in
their primary and general application, but evidence is
admissible to show that they have a local, technical,
or otherwise peculiar signification, and were so used
and understood in the particular instance, in which
case the agreement must be construed accordingly.”
In contractual interpretation, a similar principle is ex-

pressed in Article 1370, par. 1:
“Art. 1370. If the terms of a contract are clear

and leave no doubt upon the intention of the con-
tracting parties, the literal meaning of its stipulations
shall control.”
Article 791:
A similar rule is found in Rule 130, Section 11 of the Rules
of Court:
SECTION 11. Instrument construed so as to

give effect to all provisions.—In the construction of an
instrument where there are several provisions or par-
ticulars, such a construction is, if possible, to be
adopted as will give effect to all.
In contractual interpretation, Articles 1373 and 1374 lay

down similar principles:
“Art. 1373. If some stipulation of any contract

should admit of several meanings, it shall be under-
stood as bearing that import which is most adequate
to render it effectual.
“Art. 1374. The various stipulations of a con-
tract shall be Interpreted together, attributing to the
doubtful ones that sense which may result from all of
them taken jointly.”
Article 792:
I. This article makes applicable to wills the severability or
separability principle in statutory construction frequently ex-
pressly provided in a separability clause.
II. Article 2085 of the BGB is the source of this article:
“2085. [Teilweise Unwirksamkeit] Die Unwirk-
samkeit einer von mehreren in einem Testament en-
thaltenen Verftigungen hat die Unwirksamkeit der
ubrigen Verfugungen nur zur Folge, wenn anzuneh-
men ist, daJ3 der Erblasser diese ohne die unwirk-
same Verfugung nicht getroffen haben wiirde.”
(“2085. [Partial invalidity] The invalidity of one
of several dispositions contained in a will results in
the invalidity of the other dispositions only if it is to be
presumed that the testator would not have made
these if the invalid disposition had not been made.”
[German Civil Code])
Article 793:
I. This article [an implant from the Code of Civil Proce-
dure and ultimately from American law.] creates problems
which would not have existed had it not been so nonchalantly
incorporated in the Code.
II. The problems spring from the fact that this article
makes the will speak as of the time it is made, rather than at
the time of the decedent’s death (which is more logical because
that is when the will takes effect [Art. 777]).
III. Per the terms of this article, therefore:
Example No. 1: X executes a will in 1980 with a provision:
“I leave to A 1/4 of my estate.” When he made the will, his es-
tate was worth P100,000. At the time of his death in 1990, X’s
estate was worth P500.000. Per Article 793, A is entitled to only

P25.000.
Example No. 2: X executes a will in 1985 containing a leg-
acy: “I give to M all my shares in BPI.” The testator dies in
1990, owning, at the time of his death, ten times as many BPI
shares as he did when he made the will. Under Article 793, the
shares acquired after the will was executed are not included in
the legacy.
IV. Article 793 therefore departs from the codal philo-
sophy of Articles 774 and 776 and constitutes an exception to
the concept of succession as linked to death and rendered le-
gally effective by death.
V. As a suggestion for law reform—the rule should be
turned around thus: “Property acquired after the making of a
will passes thereby unless the contrary clearly appears from
the words or the context of the will.”
VI. In the meantime, it is suggested that this article be
liberally construed. Can the word “expressly” in this article be
interpreted to mean “clearly” even if it might be stretching a
point?
Article 794:
I. This article should be read together with Article 929.
II. General rule: In a legacy or devise the testator gives
exactly the interest he has in the thing (Article 794).
Exceptions: He can give a less interest (Article 794) or a
greater interest (Article 929) than he has.
In the latter case, if the person owning the interest to be
acquired does not wish to part with it, the solution in Article
931 can be applied; i.e. the legatee or devisee shall be entitled
only to the just value of the interest that should have been ac-
quired.
ARTICLE 795. The validity of a will as to its form de-

pends upon the observance of the law in force at the time it
is made, (n)
I. Aspects of Validity of Wills

A. Extrinsic—refers to the requirement of form (formal
validity)
1. Governing law as to time:
a. For Filipinos—the law in force when the will
was executed (Article 795)
b. For foreigners—same rule (NOTE: The assump-
tion here, of course, is that the will is being
probated here).
2. Governing law as to place:
For Filipinos—
1) law of citizenship
2) law of domicile
3) law of residence
4) law of place of execution, or
5) Philippine law
(Vide comments under Articles 815-817).

b. For foreigners—same choices
B. Intrinsic.—refers to the substance of the provisions
(substantive validity)
1. Governing law as to time:
a. For Filipinos—the law as of the time of death
(Article 22634)
b. For foreigners—depends on their personal law
4 ART. 2263. Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be governed by the Civil
Code of 1889, by other previous laws, and by the Rules of Court. The inheri-
tance of those who, with or without a will, die after the beginning of the effec-
tivity of this Code, shall be adjudicated and distributed in accordance with this
new body of laws and by the Rules of Court; but the testamentary provisions
shall be carried out insofar as they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be respected; however,
their amount shall be reduced if in no other manner can every compulsory heir
be given his full share according to this Code. (Rule 12a)
(Article 16, par. 2;5 Article 10396)

2. Governing law as to place:
a. For Filipinos—Philippine law (Article 16, par. 2;
Article 1039)
b. For foreigners—their national law (Article 16,
par. 2; Article 1039)
SUBSECTION 2.—TESTAMENTARY CAPACITY AND INTENT
ARTICLE 796. All persons who are not expressly pro-

hibited by law may make a will. (662)
ARTICLE 797. Persons of either sex under eighteen
years of age cannot make a will, (n)
ARTICLE 798. In order to make a will it is essential that
the testator be of sound mind at the time of its execution, (n)
ARTICLE 799. To be of sound mind, it is not neces-
sary that the testator be in full possession of all his reason-
ing faculties, or that his mind be wholly unbroken, unim-
paired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time
of making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the char-
acter of the testamentary act. (n)
ARTICLE 800. The law presumes that every person is
of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the per-
5 ART. 16, par. 2 x x x However, Intestate and testamentary successions,
both with respect to the order of succession and to the amount of successional
rights and to the intrinsic validity of testamentary provisions, shall be regu-
lated by the national law of the person whose succession is under considera-
tion, whatever may be the nature of the property and regardless of the country
wherein said property may be found. (10a)
6 ART. 1039. Capacity to succeed is governed by the law of the nation of
the decedent, (n)

son who opposes the probate of the will; but if the testator,
one month or less, before making his will was publicly
known to be insane, the person who maintains the validity
of the will must prove that the testator made it during a
lucid interval, (n)
ARTICLE 801. Supervening incapacity does not in-

validate an effective will, nor is the will of an incapable
validated by the supervening of capacity, (n)
Articles 796-801 lay down the rules on testamentary

capacity.
I. Testamentary capacity [testamentifactio; testamentifac-

cion activa)—the legal capacity to make a will.
II. Who have testamentary capacity—all natural persons,
unless disqualified by law. Juridical persons are not granted
testamentary capacity.
Disqualified persons:
A. Those under 18 (Article 797)
Under E.O. 292, the Administrative Code of 1987, which
took effect on November 24, 1989, years are now reckoned ac-
cording to the Gregorian calendar.7 Sec. 31, Book I provides:
“Sec. 31. Legal Periods.—“Year” shall be un-

derstood to be twelve calendar months; “month,” of
thirty days, unless it refers to a specific calendar
month in which case it shall be computed according
to the number of days the specific month contains;
“day,” to a day of twenty-four hours; and “night,” from
sunset to sunrise.
B. Those of unsound mind (Article 798)

1. Unsoundness of mind (Insanity)
— absence of the qualities of soundness of mind
7 For decedents who died before effective date of E.O. 292, computation
would have to be made under the old law.

— defined by the Code only by indirection because

only soundness of mind is defined. (Article 799)
2. Soundness of mind (sanity) defined:
Negatively
i) Not necessary that testator be in full pos-
session of reasoning faculties;
ii) Not necessary that testator’s mind be
wholly unbroken, unimpaired, unshattered
by disease, injury, or other cause.
Positively
Ability to know three things:
i) nature of estate to be disposed of;
ii) proper objects of one’s bounty; and
iii) character of testamentary act.
Re: i) The testator should have a fairly accurate
knowledge of what he owns. The word “accurate”
should of course be understood in a relative
sense. The more one owns, the less accurate is
one’s knowledge of his estate expected to be. A
modern-day Croesus whose assets might include
billions of dollars (not to mention other curren-
cies) worth of fixed and liquid assets is going to
have a far less accurate picture of his economic
empire than a poverty-stricken laborer whose
wealth consists of two pairs of faded denims.
Re: ii) The testator should know, under ordinary cir-
cumstances, his relatives in the most proximate
degrees, his knowledge expectedly decreasing as
the degrees become more remote. And certainly
if the testator thinks, for example, that Adolf Hit-
ler is his father, this would be a sign that the
testator does not know the proper objects of his
bounty (unless of course Hitler is his father).
Re: iii) It is not required, in order for this requisite to be

present, that the testator know the legal nature
of a will with the erudition of a civilist. All that
he need know is that the document he is execut-
ing is one that disposes of his property upon
death.
3. Legal importance and implication of mental capacity—

the law is interested in the legal consequences of the testator’s
mental capacity or incapacity, not in the medical aspects of
mental disease. Conceivably, the testator could be mentally ab-
errant medically but testamentarily capable or, vice versa,
mentally competent medically but testamentarily incompetent.
The criterion is simple: as long as the testator, at the time
he made the will, was capable of perceiving the three things
mentioned above, he has testamentary capacity, whatever else
he may be medically. Otherwise, he has no testamentary capac-
ity, no matter what else he may be medically.
As explained in Ortega v. Valmonte (478 SCRA 247 [2005]):
“Between the highest degree of soundness of

mind and memory which unquestionably carries with
it full testamentary capacity, and that degree of men-
tal aberration generally known as insanity or idiocy,
there are numberless degrees of mental capacity or
incapacity and while on one hand it has been held
that mere weakness of mind, or partial imbecility from
disease of body, or from age, will not render a person
incapable of making a will: a weak or feebleminded
person may make a valid will, provided he has under-
standing and memory sufficient to enable him to
know what he is about to do and how or to whom he
is disposing of his property. To constitute a sound
and disposing mind, it is not necessary that the mind
be unbroken or unimpaired or unshattered by disease
or otherwise. It has been held that testamentary inca-
pacity does not necessarily require that a person shall
actually be insane or of unsound mind.” [citing Alsua-
Betts v. CA, (92 SCRA 332 [1979])
4. Presumption: General rule—rebuttable presumption

of sanity (Article 800)
(a) Exceptions—Two instances of rebuttable pre-
sumption of insanity:
i) when the testator, one month or less, before
the execution of the will was publicly known
to be insane (Article 800);
ii) when the testator executed the will after be-
ing placed under guardianship or ordered
committed, in either case, for insanity [un-
der Rules 93 and 101, respectively, of the
Rules of Court], and before said order has
been lifted.
[Basis of the second exception is the following statement in
Torres vs. Lopez, 48 Phil. 774, at pp. 811-812:
Counsel for the appellee make capital of the tes-
tator being under guardianship at the time he made
his will. Citing section 306 of the Code of Civil Proce-
dure and certain authorities, they insist that the effect
of the judgment is conclusive with respect to the con-
dition of the person. To this statement we cannot
write down our conformity. The provisions of the cited
section were taken from California, and there the Su-
preme Court has never held what is now urged upon
us by the appellee. The rule announced that in some
states, by force of statute, the finding of insanity is
conclusive as to the existence of insanity during the
continuance of adjudication, is found to rest on local
statutes, of which no counterpart is found in the Phil-
ippines. (32 C.J. 647; Gridley vs. Boggs [1882], 62
Cal. 190; In the matter of the Estate of Johnson
[1881], 57 Cal. 529.) Even where the question of in-
sanity is put in issue in the guardianship proceed-
ings, the most that can be said for the finding is that
it raises a presumption of incapacity to make a will
but does not invalidate the testament if competency
can be shown. The burden of proving sanity in such
case is cast upon the proponents.]
5. Time for determining mental capacity—time of execu-

tion of will; no other temporal criterion is to be applied (Article
801).
ARTICLE 802. A married woman may make a will
without the consent of her husband, and without the au-
thority of the court, (n)
I. An amusingly sexist provision. It contains an errone-
ous and unintended suggestion that a married man does not
have the same privilege.
II. Suggested rewording:
“A married person may make a will without his or her
spouse’s consent.”
ARTICLE 803. A married woman may dispose by will
of all her separate property as well as her share of the con-
jugal partnership or absolute community property, (n)
I. Same observations as those on the preceding article.
II. Article 97 of the Family Code supersedes this in part:
“Art. 97. Either spouse may dispose by will of

his or her interest in the community property.” (n)
SUBSECTION 3.—FORMS OF WILLS
ARTICLE 804. Every will must be in writing and exe-

cuted in a language or disject known to the testator, (n)
I. A. This article lays down common requirements, t.e. re-
quirements that apply to the two kinds of wills recognized by
the Code: the attested and the holographic.
Articles 805-808 lay down special requirements for at-
tested wills. Articles 810-814 lay down special requirements for
holographic wills.
B. Two common requirements laid down by Art. 804:

(1) in writing
(2) in a language or dialect known to the testator.
Re:(1) Oral wills (the testamentum nuncupativum of

the Institutes) are not recognized in the Code.
[Such wills are allowed under the Code of
Muslim Personal Laws of the Philippines [PD
1083], Art. 102[2]).
Re:(2) a) It is otiose, for the purpose of this article,
to attempt to draw a distinction between
a language and a dialect That is best left
to linguists and cultural anthropologists.
b) The provisions of Article 804 are manda-
tory. Consequently, failure to comply
with the two requirements nullifies the
will.
Suroza vs. Honrado

110 SCRA 388 (1981)
AQUINO, J.:
Should disciplinary action be taken against re-

spondent judge for having admitted to probate a will,
which on its face is void because it is written in Eng-
lish, a language not known to the illiterate testatrix,
and which is probably a forged will because she and
the attesting witnesses did not appear before the no-
tary as admitted by the notary himself?
xxx xxx xxx
Mauro Suroza, a corporal in the 45th Infantry of
the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 xxx. They were
childless. They reared a boy named Agapito who used
the surname Suroza and who considered them as his
parents xxx.
Mauro died in 1942. Marcelina, as a veteran's
widow, became a pensioner of the Federal Govern-
ment. That explains why on her death she had accu-
mulated some cash in two banks.
Agapito and Nenita begot a child named Lilia

who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and
his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent xxx.
xxx xxx xxx
On a date not indicated in the record, the
spouses Antonio Sy and Hermogena Talan begot a
child named Marilyn Sy, who, when a few days old,
was entrusted to Arsenia de la Cruz (apparently a girl-
friend of Agapito) and who was later delivered to
Marcelina Salvador Suroza who brought her up as a
supposed daughter of Agapito and as her grand-
daughter xxx. Marilyn used the surname Suroza. She
stayed with Marcelina but was not legally adopted by
Agapito xxx.
Marcelina supposedly executed a notarial will in
Manila on July 23, 1973, when she was 73 years old.
That will, which is in English, was thumbmarked by
her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by
her xxx. In that will, Marcelina bequeathed all her es-
tate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the
Veteran’s Hospital in Quezon City. At the time of her
death, she was a resident of 7374 San Maximo Street,
Olimpia, Makati, Rizal. She owned a 150-square me-
ter lot and house in that place, xxx
On January 13, 1975, Marina Paje, alleged to be
a laundrywoman of Marcelina xxx and the executrix
in her will xxx filed xxx a petition for the probate of
Marcelina’s alleged will. The case was assigned to
Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado
commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence, xxx
In an order dated March 31, 1975, Judge Hon-
rado appointed Marina as administratrix. On the fol-
lowing day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the
Bank of America to allow Marina to withdraw the sum

of P10.000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon
Castro, the custodian of the passbooks, to deliver
them to Marina.
Upon motion of Marina, Judge Honrado issued
another order dated April 11, 1975, instructing a
deputy sheriff to eject the occupants of the testatrix’s
house, among whom was Nenita V. Suroza, and to
place Marina in possession thereof.
That order alerted Nenita to the existence of the
testamentary proceeding for the settlement of
Marcelina’s estate. She and the other occupants of
the decedent’s house filed on April 18 in the said pro-
ceeding a motion to set aside the order of April 11
ejecting them. They alleged that the decedent’s son
Agapito was the sole heir of the deceased, that he has
a daughter named Lilia, that Nenita was Agapito’s
guardian and that Marilyn was not Agapito’s daughter
nor the decedent’s granddaughter, xxx
In spite of the fact that Judge Honrado was al-
ready apprised that persons, other than Marilyn, were
claiming Marcelina’s estate, he issued on April 23 an
order probating her supposed will wherein Marilyn
was the instituted heiress xxx.
On April 24, Nenita filed in the testate case an
omnibus petition ‘to set aside proceedings, admit op-
position with counter-petition for administration and
preliminary injunction.’ Nenita in that motion reiter-
ated her allegation that Marilyn was a stranger to
Marcelina, that the will was not duly executed and at-
tested, that it was procured by means of undue influ-
ence employed by Marina and Marilyn and that the
thumbmarks of the testatrix were procured by fraud
or trick.
xxx xxx xxx
To that motion was attached an affidavit of
Zenaida A. Penaojas, the housemaid of Marcelina,
who swore that the alleged will was falsified xxx.
xxx xxx xxx

In a motion dated December 5, 1975, for the

consolidation of all pending incidents, Nenita V. Su-
roza reiterated her contention that the alleged will is
void because Marcelina did not appear before the no-
tary and because it is written in English which is not
known to her xxx.
Judge Honrado in his order of June 8, 1976 ‘de-
nied’ the various incidents ‘raised’ by Nenita xxx.
Instead of appealing from that order and the or-
der probating the will, Nenita ‘filed a case to annul’
the probate proceedings xxx. That case xxx was also
assigned to Judge Honrado. He dismissed it in his or-
der of February 16, 1977 xxx.
Judge Honrado in his order dated December 22,
1977, after noting that the executrix had delivered the
estate to Marilyn, and that the estate tax had been
paid, closed the testamentary proceeding.
About ten months later, in a verified complaint
dated October 12, 1978, filed in this Court, Nenita
charged Judge Honrado with having probated the
fraudulent will of Marcelina. The complainant reiter-
ated her contention that the testatrix was illiterate as
shown by the fact that she affixed her thumbmark to
the will and that she did not know English, the lan-
guage in which the will was written. (In the decree of
probate Judge Honrado did not make any finding that
the will was written in a language known to the testa-
trix.)
xxx xxx xxx
The 1978 complaint against Judge Honrado was
brought to the attention of this Court in the Court
Administrator’s memorandum of September 25, 1980.
The case was referred to Justice Juan A. Sison of the
Court of Appeals for investigation, report and recom-
mendation. He submitted a report dated October 7,
1981.
On December 14, 1978, Nenita filed in the Court
of Appeals against Judge Honrado a petition for cer-
tiorari and prohibition wherein she prayed that the
will, the decree of probate and all the proceedings in

the probate case be declared void.
Attached to the petition was the affidavit of Do-
mingo P. Aquino, who notarized the will. He swore
that the testatrix and the three attesting witnesses did
not appear before him and that he notarized the will
‘just to accommodate a brother-lawyer on the condi-
tion’ that said lawyer would bring to the notary the
testatrix and the witnesses but the lawyer never com-
plied with his commitment.
The Court of Appeals dismissed the petition be-
cause Nenita’s remedy was an appeal and her failure
to do so did not entitle her to resort to the special civil
action of certiorari xxx.
Relying on that decision, Judge Honrado filed on
November 17, 1981 a motion to dismiss the adminis-
trative case for having allegedly become moot and
academic.
We hold that disciplinary action should be taken
against respondent judge for his improper disposition
of the testate case which might have resulted in a
miscarriage of justice because the decedent’s legal
heirs and not the instituted heiress in the void will
should have inherited the decedent’s estate.
xxx xxx xxx
Administrative action may be taken against a
judge of the court of first instance for serious miscon-
duct or inefficiency xxx.
Inefficiency implies negligence, incompetence,
ignorance and carelessness. A judge would be inex-
cusably negligent if he failed to observe in the per-
formance of his duties that diligence, prudence and
circumspection which the law requires in the rendi-
tion of any public service. (In re Climaco, Adm. Case
No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the
will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix,
could have readily perceived that the will is void.
In the opening paragraph of the will, it was

stated that English was a language ‘understood and
known’ to the testatrix. But in its concluding para-
graph, it was stated that the will was read to the tes-
tatrix ‘and was translated into F;ilipino language.’ xxx
That could only mean that the will was written in a
language not known to the illiterate testatrix and,
therefore, it is void because of the mandatory
pr7ovision of article 804 of the Civil Code that every
will must be executed in a language or dialect known
to the testator. Thus, a will written in English, which
was not known to the Igorot testator, is void and was
disallowed (Acop v. Piraso, 52 Phil. 660).
xxx xxx xxx
In spite of the absence of an opposition, respon-
dent judge should have personally conducted the
hearing on the probate of the will so that he could
have ascertained whether the will was validly exe-
cuted.
Under the circumstances, we find this negli-
gence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the
testate case of Marcelina S. Suroza, a fine equivalent
to his salary for one month is imposed on respondent
judge (his compulsory retirement falls on December
25, 1981)
c) Neither the will nor the attestation clause need state

compliance with this requirement. This can be proved by ex-
trinsic evidence. (Lopez vs. Liboro, 81 Phil. 429 [1948]; Capo-
nong-Noble vs. Abaja, 450 SCRA. 265 [2005])
d) Presumption of compliance: It may sometimes be pre-
sumed that the testator knew the language in which the will
was written.
Abangan vs. Abangan

40 Phil. 476 (1919)
AVANCENA, J.:
On September 19, 1917, the Court of First In-

stance of Cebu admitted to probate Ana Abangan’s
will executed July, 1916. From the decision the oppo-
nents appealed.
xxx xxx xxx
xxx (I)t is alleged the records do not
show that the testatrix knew the dialect in which
the will is written. But the circumstance appear-
ing in the will itself that same was executed in
the city of Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough, in
the absence of any proof to the contrary, to pre-
sume that she knew this dialect in which this
will is written.
For the foregoing considerations, the
judgment appealed from is hereby affirmed with
costs against the appellants.
To the same effect was the ruling in Gonzales vs.

Laurel. 46 Phil. 750 (1923).
On the authority of these cases it seems that, in
order for the presumptions to apply, the following
must appear:
1) the will must be in a language or dialect
generally spoken in the place of execution; and
2) the testator must be a native or resident of
said locality.
Properly speaking, compliance with the language require-

ment is not then presumed but proved by these attendant cir-
cumstances.
ARTICLE 805. Every will, other than a holographic

will, must be subscribed at the end thereof by the testator
himself or by the testator’s name written by some other
person in his presence, and by his express direction, and

attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another.
The testator or the person requested by him to write
his name and the instrumental witnesses of the will, shall
also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be num-
bered correlatively in letters placed on the upper part of
each page.
The attestation shall state the number of pages used
upon which the will is written, and the fact that the testa-
tor signed the will and every page thereof, or caused some
other person to write his name, under his express direction,
in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them, (n)
ARTICLE 806. Every will must be acknowledged be-
fore a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the
will, or file another with the office of the Clerk of Court, (n)
I. These two articles lay down the special requirements
for attested (ordinary/notarial) wills, as follows:
(1) subscribed by the testator or his agent in his
presence and by his express direction at the end
thereof, in the presence of the witnesses;
(2) attested and subscribed by at least three credible
witnesses in the presence of the testator and of
one another;
(3) the testator, or his agent, must sign every page,
except the last, on the left margin in the presence
of the witnesses;
(4) the witnesses must sign every page, except the
last, on the left margin in the presence of the tes-
tator and of one another;
(5) all pages numbered correlatively in letters on the

upper part of each page;
(6) attestation clause, stating
a) the number of pages of the will;
b) the fact that the testator or his agent under
his express direction signed the will and
every page thereof, in the presence of the
witnesses;
c) the fact that the witnesses witnessed and signed
the will and every page thereof in the presence of
the testator and one another,
(7) acknowledgment before a notary public.
II. A. Some Discrepancies:
1. Par. 1, Article 805—No statement that the testator
must sign in the presence of the witnesses.
2. Par. 2, Article 805—No statement that the testator
and the witnesses must sign every page in one
another’s presence.
[These two things, however, are required to be stated in
the attestation clause. The only conclusion, therefore, is that
these are requirements that are to be complied with, since it
cannot be presumed that the attestation clause was meant to
tell a lie.]
3. On the other hand, the attestation clause is not
required to state that the agent signed in the tes-
tator’s presence—a circumstance mandated by
the first and second paragraphs of the article.
B. Indication of Date—There is no requirement that
an attested will should be dated, unlike a holo-
graphic will.
Consequently, a variance between the indicated dates of
execution and acknowledgment does not in itself invalidate the
will. (Ortega v. Valmonte, 478 SCRA 247 [2005]).
III. Some Comments on the Requirements:

Re: (1) subscribed by the testator or his agent in
his presence and by his express direction at
the end thereof, in the presence of the wit-
nesses:
a) subscribed by the testator—The article
uses two words, referring to this requirement,
apparently interchangeably: subscribe and sign.
Strictly speaking, they are not exactly synony-
mous. To subscribe necessarily denotes writing,
more precisely, to write under; to sign simply
means to place a distinguishing mark. Thus,
signing has a broader meaning than subscrib-
ing; not every signature is necessarily a sub-
scription; not every distinguishing mark is a
writing.
i) Thumb mark as signature.
Is the placing of the testator’s thumb-
print, for instance, a signature within the
contemplation of this article? Does it
comply with the statutory requirement?
Payad vs. Tolentino
62 Phil. 848 (1936)
GODDARD, J.\
Both parties in this case appeal from an order of

the trial court denying the probate of the alleged will
of Leoncia Tolentino, deceased. That court found that
the will in question was executed by the deceased on
the date appearing thereon, September 7, 1933, one
day before the death of the testatrix, contrary to the
contention of the oppositor that it was executed after
her death. The court, however, denied probate on the
ground that the attestation clause was not in confor-
mity with the requirements of law in that it is not
stated therein that the testatrix caused Attorney Al-
mario to write her name at her express direction.
xxx xxx xx
As to the contention of the petitioner-appellant,

as stated above, the trial court denied probate of the
will on the sole ground that the attestation clause
does not state that the testatrix requested Attorney
Almario to write her name. The last paragraph of the
questioned will reads in part as follows:
“En prueba de todo lo cual, firmo el presente tes-
tamento con mi marca digital, porque no puedo estam-
par mi firma a causa de mi debilidad, rogando al
abogado M. Almario que ponga mi nombre en el sitio
donde he de estampar mi marca digital ***.”
The evidence of record establishes the fact that
Leoncia Tolentino, assisted by Attorney Almario,
placed her thumb mark on each and every page of the
questioned will and that said attorney merely wrote
her name to indicate the place where she placed said
thumb mark. In other words, Attorney Almario did
not sign for the testatrix. She signed by placing her
thumb mark on each and every page thereof. “A stat-
ute requiring a will to be ‘signed’ is satisfied if the sig-
nature is made by the testator’s mark.” (Quoted by
this court from 28 R.C.L. p. 117; De Gala vs. Gonza-
les and Ona, 53 Phil. 104, 108.) It is clear, therefore,
that it was not necessary that the attestation clause
in question should state that the testatrix requested
Attorney Almario to sign her name inasmuch as the
testatrix signed the will in question in accordance
with law.
The appealed order of the trial court is reversed
and the questioned will of Leoncia Tolentino, de-
ceased, is hereby admitted to probate with the costs
of this appeal against the oppositor-appellant.
Matias vs. Salud

L-10751 June 23, 1958
REYES, J.B.L., J.:
Appeal from an order of the Court of First In-

stance of Cavite xxx denying the probate of the pur-
ported will of the late Gabina Raquel.
xxx xxx xxx

The document in question appears to be com-

posed of three pages. On the lower half of the second
page, preceding the attestation clause appears the
signature “Gabina Raquel” which is apparently of ad-
mitted authenticity. Alongside it is a smudge in violet
ink, with blurred ridge lines, claimed by the propo-
nents to be a thumbmark affixed by the testatrix. On
the third page, at the end of the attestation clause
appear the signatures appearing on the left margin of
each page; and on the upper part of each page’s left
margin appears a violet ink smudge similar to the one
previously described, accompanied by the written
words “Gabina Raquel" and underneath said name
“by Lourdes Samonte.”
xxx xxx xxx
The proponent’s evidence is to the effect that the
deceased instructed Attorney Agbunag to draft her
will; that it was brought to her in the morning of
January 27, 1950; that she had the witnesses sum-
moned and received them in the ‘ante sola' of her
house; that when the witnesses were seated around a
table with her and Attorney Agbunag, the will was
read by the latter; that Gabina Raquel manifested
conformity thereto and thumbmarked the foot of the
document and the left margin of each page. Allegedly
upon Agbunag’s insistence, she attempted to sign
with his fountain pen, but was only able to affix the
signature at the end of the testamentary dispositions
in the lower half of page two because immediately af-
ter, she dropped the pen, grasping her right shoulder
and complaining of pain. After 20 minutes, Attorney
Agbunag, seeing that Gabina Raquel could not pro-
ceed, instructed Lourdes Samonte to write “Gabina
Raquel by Lourdes Samonte” next to each thumb-
mark, and thereafter witnesses Lourdes Samonte,
Felipa Samala and Modesta Gonzales signed, in that
order, at the foot of the attestation clause and at the
left margin of each page. It is to be noted that witness
Modesta Gonzales, a 64-year old woman did not tes-
tify as she was found to be suffering from high blood
pressure, and proponent’s expert evidence was to the
effect that her memory was impaired, and unusual

excitement might cost her life.
The probate having been opposed by Basilia Sa-
lud, a niece of Gabina Raquel, the case was set for
trial. After hearing, Judge Primitivo Gonzales of the
Court of First Instance of Cavite rendered judgment
upholding the contentions of the oppositor and denied
the document’s admission to probate, principally on
the following grounds:
(1) That the attestation clause did not
state that the testatrix and the witnesses signed
each and every page of the will; and while the
left margins of each page exhibit the words ‘Ga-
bina Raquel by Lourdes Samonte,’ the attesta-
tion does not express that Lourdes was ex-
pressly directed to sign for the testatrix.
xxx xxx xxx
The trial court refused credence to the evidence
for the proponents on the basis of the expert testi-
mony of Captain Jose Fernandez of the Philippine
Constabulary’s Criminal Laboratory, to the effect that
(1) fingerprints appearing at the end and left margins
of the will were impressed over the name of the testa-
trix, and after the name was written, contrary to what
the proponent’s witnesses asserted: (2) that the words
“Gabina Raquel by Lourdes Samonte” in the upper left
hand margin of page two of the will were falsified and
appear to have been written over a previous tracing;
(3) that the person who wrote “Gabina Raquel by
Lourdes Samonte” is different from the one who wrote
“Lourdes Samonte” as signature of an attesting wit-
ness; (4) that the signature ‘Lourdes Samonte’ on the
left margin of page 3 of the testament was written
only after that of Felipa Samal, when the testimony
for the proponent was that they were written in the
reverse order; and (5) that the pen used in signing
“Gabina Raquel" at the foot of the will had separated
nibs, while the other signatures in the document were
written with a round point pen, again contrary to the
contention for the proponent that only one pen was
used.
After careful consideration of the testimony on

record, we are of the opinion that the facts adverted to
by the expert for the contestant do not clearly support
the conclusions drawn by him. Thus, his assertion
that the fingerprints were affixed after writing the
name of the testatrix appears to be an inference
drawn from the fact that the ink of the writing failed
to spread along the ridge lines of the fingerprints. This
conclusion obviously failed to take into account the
fact that the evidence is that some 10 or 20 minutes
lapsed between the affixing of the fingerprints and the
writing of the marginal signatures, due to the fact that
they were not written until after a long wait for the
testatrix's attack of pain to subside. There was suffi-
cient time for the fingerprint (which was made in rub-
ber stamp ink) to dry, and recognized authorities on
the matter point out that “ink lines over rubber
stamps will spread out if the stamp is not dry” (So-
derman-O’Connel, Modem Criminal Investigation, 2d
Ed., p. 453); and “if the stamp impression is allowed
to dry thoroughly before the writing is written over it,
the ink will not run out as it does on a damp ink line”
(Osborn, Questioned Documents, 2d Ed., p. 514). To
such effect, the only composition of the rubber stamp
ink no doubt contributes. Thus, while the spreading
out or running out of the writing ink along the stamp-
ing ink lines proves that the writing was made later,
the absence of spread does not prove that stamping
ink lines were made after the writing was done.
xxx xxx xxx
Finally, the contestant urges that the fingermark
of the testatrix can not be regarded as her valid signa-
ture since it does not show distinct identifying ridge
lines; and thence, that the attestation clause, tran-
scribed earlier in this opinion, should be held defec-
tive because it fails to state that Lourdes Samonte
signed for the testator. This Court has repeatedly held
that the legal requisite that the will should be signed
by testator is satisfied by a thumbprint or other mark
affixed by him (De Gala vs. Ona, 53 Phil. 104; Dolar
vs. Diancin, 55 Phil. 479; Neyra vs. Neyra, 42 O.G.
2817; Lopez vs. Liboro, 46 O.G. [Supp. to No. 1] 211);
and that where such mark is affixed by the decedent,

it is unnecessary to state in the attestation clause
that another person wrote the testator’s name at his
request (Payad vs. Tolentino, 62 Phil. 849). While in
some of these cases the signing by mark was de-
scribed in the will or in the attestation clause, it does
not appear that the Court ever held that the absence
of such description is a fatal defect.
Appellant relies on the case of Garcia v. La-
cuesta, G.R. L-4067, Nov. 29, 1951, wherein this
Court denied probate holding that a will signed with a
cross written after the testator’s name is not a suffi-
cient signature. But in that case no showing was
made that the cross mark was the testator’s habitual
signature nor was any explanation given why he
should use a cross when he knew how to sign. In the
case now before us, it was shown that the herpes zos-
ter that afflicted the right arm and shoulder of the tes-
tatrix made writing a difficult and painful act, to the
extent that, after writing one signature on the second
page, she dropped the pen because of an attack of
pain that lasted many minutes, and evidently dis-
couraged attempts to sign.
As to the clarity of the ridge impressions, it is so
dependent on aleatory circumstances (consistency of
the ink, overinking, slipping of the finger, etc.) as to
require a dexterity that can be expected of very few
persons; and we do not believe testators should be re-
quired to possess the skill of trained officers. It is to
be conceded that where a testator employs an unfa-
miliar way of signing, and both the attestation clause
and the will are silent on the matter, such silence is a
factor to be considered against the authenticity of the
testament; but the failure to describe the unusual sig-
nature by itself alone is not sufficient to refuse pro-
bate when the evidence for the proponent fully satis-
fies the court (as it does satisfy us in this case) that
the will was executed and witnessed as required by
law.
WHEREFORE, the judgment appealed from is
reversed and the document xxx ordered admitted to
probate.
To the same effect were the rulings in De Gala v. Gonzales,

53 Phil. 104 (1929); Dolar u. Diancin, 55 Phil. 479 (1930); Lopez
v. Liboro, 81 Phil. 429 (1948).
On the authority of these rulings, therefore, the testator’s
thumbprint is always a valid and sufficient signature for the
purpose of complying with the requirement of the article. While
in most of these cases, the testator was suffering from some
infirmity which made the writing of the testator’s name difficult
or impossible, there seems to be no basis for limiting the valid-
ity of thumbprints only to cases of illness or infirmity. As ob-
served by the Court in De Gala u. Gonzales, supra, quoting the
case of Estate of Maria Salva, G.R. No. 26881, [May 17, 1927]:
“ ‘xxx When, therefore, the law says that the will
shall be ‘signed’ by the testator or testatrix, the law is
fulfilled not only by the customary written signature
but by the testator or testatrix’s thumbmark. The
construction put upon the word ‘signed’ by most
courts is the original meaning of a signum or sign,
rather than the derivative meaning of a sign manual
or handwriting. A statute requiring a will to be ‘signed’
is satisfied if the signature is made by the testator’s
mark. (28 R.C.L., pp. 116-117)’ ”
ii) A cross as signature:
Garcia vs. Lacuesta

90 Phil. 489 (1951)
PARAS, C.J.:
This is an appeal from a decision of the Court of

Appeals disallowing the will of Antero Mercado dated
January 3, 1943. The will is written in the Ilocano
dialect and contains the following attestation clause:
"We, the undersigned, by these presents do
declare that the foregoing testament of Antero
Mercado was signed by himself and also by us
below his name and of this attestation clause
and that of the left margin of the three pages
thereof. Page three the continuation of this at-
testation clause; this will is written in Ilocano
dialect which is spoken and understood by the

testator, and it bears the corresponding number
in letter which compose of three pages and all of
them were signed in the presence of the testator
and witnesses, and the witnesses in the pres-
ence of the testator and all and each and every
one of us witnesses.
“In testimony, whereof, we sign this testa-
ment, this the third day of January, one thou-
sand nine hundred forty-three, (1943) A.D.
(Sgd.) “NUMERIANO EVANGELISTA
(Sgd.) “ROSENDO CORTES
(Sgd.) “BIBIANA ILLEGIBLE”
The will appears to have been signed by Atty.

Florentino Javier who wrote the name of Antero
Mercado, followed below by ‘A ruego del testador’ and
the name of Florentino Javier. Antero Mercado is al-
leged to have written a cross immediately after his
name, xxx
In our opinion, the attestation clause is fatally
defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator’s
name under his express direction, as required by Sec-
tion 618 of the Code of Civil Procedure. The herein pe-
titioner xxx argues, however, that there is no need for
such recital because the cross written by the testator
after his name is a sufficient signature and the signa-
ture of Atty. Florentino Javier is a surplusage. Peti-
tioner’s theory is that the cross is as much a signa-
ture as a thumbmark, the latter having been held suf-
ficient by this Court in the cases of De Gala vs. Gonza-
les and Ona, 53 Phil. 104; Dolar vs. Diancin, 55 Phil.
479; Payad v. Tolentino, 62 Phil. 848; Neyra vs.
Neyra, 76 Phil. 296 and Lopez us. Liboro, 81 Phil.
429.
It is not here pretended that the cross appearing
on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name.
After mature reflection, we are not prepared to liken
the mere sign of a cross to a thumbmark, and the
reason is obvious. The cross cannot and does not

have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us

to determine whether there is a sufficient recital in the
attestation clause as to the signing of the will by the
testator in the presence of the witnesses, and by the
latter in the presence of the testator and of each
other.
A sign of the cross, therefore, placed by the testator does

not comply with the statutory requirement of signature, unless
it is the testator’s usual manner of signature or one of his
usual styles of signing. The reason for the rule is explained in
Garcia.
b) signing by an agent of the testator —
i) Two requisites for signing by the agent:
1. must sign in testator’s presence, and
2. by his express direction.
ii) What agent must write:
Barut vs. Cabacungan
21 Phil. 461 (1912)
MORELAND, J.:
xxx xxx xxx

This appeal arises out of an application on the
part of Pedro Barut to probate the last will and testa-
ment of Maria Salomon, deceased. It is alleged in the
petition for probate that Maria Salomon died on the
7th day of November, 1908, in the pueblo of Sinait,
Ilocos Sur, leaving a last will and testament bearing
date March 2, 1907. Severo Agayan, Timotea
Inoselda, Catalino Ragasa, and A.M. Jimenez are al-
leged to have been witnesses to the execution thereof.
By the terms of said will Pedro Barut received the lar-
ger part of decedent’s property.
xxx After disposing of her property the testatrix

revoked all former wills by her made. She also stated
in said will that being unable to read or write, the

same had been read to her by Ciriaco Concepcion and
Timotea Inoselda and that she had instructed Severo
Agayan to sign her name to it as testatrix.
xxx xxx xxx
In the case before us the learned probate court
found that the will was not entitled to probate upon
the sole ground that the handwriting of the person
who it is alleged signed the name of the testatrix to
the will for and on her behalf looked more like the
handwriting of one of the other witnesses to the will
than that of the person whose handwriting it was al-
leged to be. We do not believe that the mere dissimi-
larity in writing thus mentioned by the court is suffi-
cient to overcome the uncontradicted testimony of all
the witnesses to the will that the signature of the tes-
tatrix was written by Severo Agayan at her request
and in her presence and in the presence of all the
witnesses to the will. It is immaterial who writes the
name of the testatrix provided it is written at her re-
quest and in her presence and in the presence of all
the witnesses to the execution of the will.
The court seems, by inference at least, to have
had in mind that under the law relating to the execu-
tion of a will it is necessary that the person who signs
the name of the testatrix must afterwards sign his
own name; and that, in view of the fact that, in the
case at bar, the name signed below that of the testa-
trix as the person who signed her name, being, from
its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is ac-
cordingly invalid, such fact indicating that the person
who signed the name of the testatrix failed to sign his
own. We do not believe that this contention can be
sustained. Section 618 of the Code of Civil Procedure
reads as follows:
“No will, except as provided in the preced-
ing section, shall be valid to pass any estate,
real or personal, nor charge or affect the same,
unless it be in writing and signed by the testa-
tor, or by the testator’s name written by some
other person in his presence, and by his express

direction, and attested and subscribed by three
or more credible witnesses in the presence of the
testator and of each other. * * *”
This is the important part of the section under
the terms of which the court holds that the person
who signs the name of the testator for him must also
sign his own name.
xxx xxx xxx
From these provisions it is entirely clear that,
with respect to the validity of the will, it is unimpor-
tant whether the person who writes the name of the
testatrix signs his own or not. The important thing is
that it clearly appears that the name of the testatrix
was signed at her express direction in the presence of
three witnesses and that they attested and subscribed
it in her presence and in the presence of each other.
That is all the statute requires. It may be wise as a
practical matter that the one who signs the testator’s
name signs also his own; but that is not essential to
the validity of the will. Whether one person or another
signed the name of the testatrix in this case is abso-
lutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows
that the requirement laid down by the trial court, if it
did lay it down, is absolutely unnecessary under the
law; and the reasons underlying the provisions of the
statute relating to the execution of wills do not in any
sense require such a provision. From the standpoint
of language it is an impossibility to draw from the
words of the law the inference that the person who
signs the name of the testator must sign his own
name also. The law requires only three witnesses to a
will, not four.
Nor is such requirement found in any other
branch of the law. The name of a person who is un-
able to write may be signed by another by express di-
rection to any instrument known to the law. There is
no necessity whatever, so far as the validity of the in-
strument is concerned, for the person who writes the
name of the principal in the document to sign his own
name also. As a matter of policy it may be wise that

he do so inasmuch as it would give such intimation as
would enable a person proving the document to dem-
onstrate more readily the execution by the principal.
But as a matter of essential validity of the document,
it is unnecessary. The main thing to be established in
the execution of the will is the signature of the testa-
tor. If that signature is proved, whether it be written
by himself or by another at his request, it is nonethe-
less valid, and the fact of such signature can be
proved as perfectly and as completely when the per-
son signing for the principal omits to sign his own
name as it can when he actually signs. To hold a will
invalid for the lack of the signature of the person sign-
ing the name of the principal is, in the particular
case, a complete abrogation of the law of wills, as it
rejects and destroys a will which the statute expressly
declares is valid.
There have been cited three cases which it is al-
leged are in opposition to the doctrine which we have
herein laid down. They are Ex parte Santiago (4 Phil.
Rep. 692), Ex parte Arcenas (4 Phil. Rep. 700), and
Guison vs. Concepcion (5 Phil. Rep. 551). Not one of
these cases is in point.
The headnote in the case last above stated gives
an indication of what all of the cases are and the
question involved in each one of them. It says:
“The testatrix was not able to sign her
name to the will, and she requested another
person to sign it for her. Instead of writing her
name he wrote his own upon the will. Held, That
the will was not duly executed.”
All of the above cases are precisely of this char-
acter. Every one of them was a case in which the per-
son who signed the will for the testator wrote his own
name to the will instead of writing that of the testator,
so that the testator’s name nowhere appeared at-
tached to the will as the one who executed it. The
case of Ex parte Arcenas contains the following para-
graph:
“Where a testator does not know how, or is

unable for any reason, to sign the will himself, it
shall be signed in the following manner: ‘John
Doe, by the testator, Richard Roe’; or in this
form: ‘By the testator, John Doe, Richard Roe.’
All this must be written by the witness signing at
the request of the testator.”
The only question for decision in that case, as
we have before stated, was presented by the fact that
the person who was authorized to sign the name of
the testator to the will actually failed to sign such
name but instead signed his own thereto. The deci-
sion in that case related only to that question.
Aside from the presentation of an alleged subse-
quent will the contestants in this case have set forth
no reason whatever why the will involved in the pre-
sent litigation should not be probated. The due and
legal execution of the will by the testatrix is clearly es-
tablished by the proofs in this case. Upon the facts,
therefore, the will must be probated.
Barut was cited and essentially reiterated in Balonan v.

Abellana, 109 Phil. 358 (1960). The essential thing, for validity,
is that the agent write the testator’s name, nothing more. It
would be a good thing, but not required, for the agent to indi-
cate the fact of agency or authority as: “For the testator Juan
de la Cruz, by Jose Santos.” Barut, however, is clear on what is
essential.
iii) May the agent be one of the attesting wit-
nesses?
If there are more than three witnesses — Certainly.

If there are only three — Uncertain. The statement in In re
Will of Tan Diuco, 45 Phil. 807 (1924) (“. . . the testator or per-
son acting in his stead, as well as the three witnesses sign on
the left margin. . .”) is too indirect and oblique to be taken as
an authoritative statement that a witness cannot sign on behalf
of the testator.
Note that in Barut, the agent was one of the attesting wit-
nesses, but then there were four witnesses there, making the
question moot.
c) Signing at the end:
i) If the will contains only dispositive provisions,
there will be no ambiguity as to where the end
of the will is.
If, however, the will contains non-dispositive paragraphs
after the testamentary dispositions, one can refer to two kinds
of end:
the physical end—where the writing stops; or
the logical end—where the last testamentary disposition
ends.
Surely, signing at the physical end is always permissible;
but equally permissible is signing at the logical end. The non-
dispositive portions are not essential parts of the will.
The Supreme Court in Azuela v. CA (487 SCRA 119 [2006])
though not explicitly adopting this position, has professed itself
sympathetic to it.
ii) Signing before the end invalidates not
only the dispositions that come after, but
the entire will, because then one of the
statutory requirements would not have
been complied with.
d) Signing in the presence of witnesses:
Nera vs. Rimando

18 Phil. 451 (1911)
CARSON, J.:
The only question raised by the evidence in this

case as to the due execution of the instrument pro-
pounded as a will in court below, is whether one of
the subscribing witnesses was present in the small
room where it was executed at the time when the tes-
tator and the other subscribing witnesses attached

their signatures; or whether at that time he was out-
side, some eight or ten feet away, in a large room
connecting with the smaller room by a doorway,
across which was hung a curtain which made it im-
possible for one in the outside room to see the testator
and the other subscribing witnesses in the act of at-
taching their signatures to the instrument.
A majority of the members of the court is of
opinion that this subscribing witness was in the small
room with the testator and the other subscribing wit-
nesses at the time when they attached their signa-
tures to the instrument, and this finding, of course,
disposes of the appeal and necessitates the affir-
mance of the decree admitting the document to pro-
bate as the last will and testament of the deceased.
The trial judge does not appear to have consid-
ered the determination of this question of fact of vital
importance in the determination of this case, as he
was of the opinion that under the doctrine laid down
in the case of Jaboneta vs. Gustilo (5 Phil. 541) the al-
leged fact that one of the subscribing witnesses was in
the outer room when the testator and the other de-
scribing witnesses signed the instrument in the inner
room, had it been proven, would not be sufficient in
itself to invalidate the execution of the will. But we are
unanimously of the opinion that had this subscribing
witness been proven to have been in the outer room at
the time when the testator and the other subscribing
witnesses attached their signatures to the instrument
in the inner room, it would have been invalid as a will,
the attaching of those signatures under such circum-
stances not being done “in the presence” of the wit-
ness in the outer room. This is because the line of vi-
sion from this witness to the testator and the other
subscribing witnesses would necessarily have been
impeded by the curtain separating the inner room
from the outer one “at the moment of inscription of
each signature."
In the case just cited, on which the trial court
relied, we held that:
“The true test of presence of the testator

and the witnesses in the execution of a will is
not whether they actually saw each other sign,
but whether they might have seen each other
sign, had they chosen to do so, considering their
mental and physical condition and position with
relation to each other at the moment of inscrip-
tion of each signature.”
But it is especially to be noted that the position
of the parties with relation to each other at the mo-
ment of the subscription of each signature, must be
such that they may see each other sign if they choose
to do so. This, of course, does not mean that the tes-
tator and the subscribing witnesses may be held to
have executed the instrument in the presence of each
other if it appears that they would not have been able
to see each other sign at that moment, without chang-
ing their relative positions or existing conditions. The
evidence in the case relied upon by the trial judge dis-
closes that “at the moment when the witness Javel-
lana signed the document he was actually and physi-
cally present and in such position with relation to
Jaboneta that he could see everything that took place
by merely casting his eyes in the proper direction and
without any physical obstruction to prevent his doing
so.” And the decision merely laid down the doctrine
that the question whether the testator and the sub-
scribing witnesses to an alleged will sign the instru-
ment in the presence of each other does not depend
upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription
by each of them, but that at that moment existing
conditions and their position with relation to each
other were such that by merely casting the eyes in the
proper direction they could have seen each other sign.
To extend the doctrine further would open the door to
the possibility of all manner of fraud, substitution,
and the like, and would defeat the purpose for which
this particular condition is prescribed in the code as
one of the requisites in the execution of a will.
The decree entered by the court below admitting
the instrument propounded therein to probate as the
last will and testament of Pedro Rimando, deceased,

is affirmed with costs of this instance against the ap-
pellant.
As explained in Nera, quoting the Jaboneta ruling, actual

seeing is not required, but the ability to see each other (i.e. the
testator and the witnesses) “by merely casting their eyes in the
proper direction.”
Re: (2) attested and subscribed by at least three credible
one another:
a) Two distinct things are required of the wit-
nesses here:
1. attesting—which is the act of witnessing
2. subscribing—which is the act of signing
their names in the proper places of the
will. (Taboada v. Rosal, 118 SCRA 195
[1982]; Caneda vs. CA, 222 SCRA 781
[1993])
Both must be done.

1) Does Article 805 require the witnesses to sign at the
end of the will?
The case of Taboada v. Rosal (118 SCRA 195 [1982]), in

which this issue was raised, involved a will signed at the end by
the testator. The witnesses’ signatures, however, were not
found at the end but on the lefthand margin of that page.
Taboada ruled that the will fully satisfied the statutory re-
quirement. It went on to state: “While perfection in the draft-
ing of a will may be desrirable, unsubstantial departure from
the usual forms should be ignored, especially where the au-
thenticity of the will is not assailed.”
The implication in Taboada is that, literally and ideally,
the witnesses should sign at the end of the will, though failure
in this regard may be overlooked.
Quaerendurrv. May the witness, like the testator, affix his
thumbmark, in lieu of writing his name?
Article 820 requires a witness to be able to read and write

but that does not answer the query definitively. Neither does
the Payad ruling, supra, because that involved the testator’s
thumbprint. The point, until ruled upon squarely, is debatable.
b) Signing in the presence of the testator and of one
another:
The Nera ruling on the meaning of presence applies here.
Re: (3) the testator, or his agent, must sign every page,
except the last, on the left margin in the pres-
ence of the witnesses
a) The last page need not be signed by the tes-
tator on the margin because, being the page
where the end of the will is, it already con-
tains the testator’s signature.
b) There is a mandatory and a directory part
to this requirement:
1. the mandatory part—the signing on
every page in the witnesses’ presence.
2. the directory part—the place of the sign-
ing, Le. the left margin; the signature
can be affixed anywhere on the page.
c) If the entire document consists of only two
sheets, the first containing the will and the
second, the attestation clause, there need
not be any marginal signatures at all (Aban-
gan v. Abangan, 40 Phil. 476 [1919])
Icasiano vs. Icasiano
11 SCRA 422 (1964)
REYES, J.B.L., J.:
xxx xxx xxx

This special proceeding was begun on October 2,
1958 by a petition for the allowance and admission to
probate of the original, Exhibit “A” as the alleged will
of Josefa Villacorte, deceased, and for the appoint-

ment of petitioner Celso Icasiano as executor thereof.
xxx xxx xxx
The evidence presented for the petitioner is to
the effect that Josefa Villacorte died in the City of Ma-
nila on September 12, 1958; that on June 2, 1956,
the late Josefa Villacorte executed a last will and tes-
tament in duplicate at the house of her daughter Mrs.
Felisa Icasiano at Pedro Guevara Street, Manila, pub-
lished before and attested by three instrumental wit-
nesses, namely: attorneys Justo P. Torres, Jr. and
Jose V. Natividad, and Mr. Vinlcio B. Diy; that the will
was acknowledged by the testatrix and by the said
three instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for
the City of Manila; and that the will was actually pre-
pared by attorney Fermin Samson, who was also pre-
sent during the execution and signing of the dece-
dent’s last will and testament, together with former
Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano, and a little girl. Of the said three instrumen-
tal witnesses to the execution of the decedent’s last
will and testament, attorneys Torres and Natividad
were in the Philippines at the time of the hearing, and
both testified as to the due execution and authenticity
of the said will. So did the Notary Public before whom
the will was acknowledged by the testatrix and attest-
ing witnesses, and also attorney Fermin Samson, who
actually prepared the document. The latter also testi-
fied upon cross examination that he prepared one
original and two copies of Josefa Villacorte’s last will
and testament at his house in Baliuag, Bulacan, but
he brought only one original and one signed copy to
Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will,
which was surrendered simultaneously with the filing
of the petition and marked as Exhibit “A" consists of
five pages, and while signed at the end and in every
page, it does not contain the signature of one of the
attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to
the amended and supplemental petition and marked
as Exhibit “A-l" Is signed by the testatrix and her

three attesting witnesses in each and every page.
xxx xxx xxx
Witness Natividad, who testified on his failure to
sign page three (3) of the original, admits that he may
have lifted two pages instead of one when he signed
the same, but affirmed that page three (3) was signed
in his presence.
xxx xxx xxx
On the question of law, we hold that the inad-
vertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lift-
ing of two pages in the course of signing, is not per se
sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact
that the testatrix and two other witnesses did sign the
defective page, but also by its bearing the coincident
imprint of the seal of the notary public before whom
the testament was ratified by testatrix and all three
witnesses. The law should not be so strictly and liter-
ally interpreted as to penalize the testatrix on account
of the inadvertence of a single witness over whose
conduct she had no control, where the purpose of the
law to guarantee the identity of the testament and its
component pages is sufficiently attained, no inten-
tional or deliberate deviation existed, and the evidence
on record attests to the full observance of the statu-
tory requisites. Otherwise, as stated in Vda. de Gil vs.
Murciano, 49 Off. Gaz. 1459, at 1479 (decision on re-
consideration) “witnesses may sabotage the will by
muddling or bungling it or the attestation clause.”
That the failure of witness Natividad to sign page
three (3) was entirely through pure oversight is shown
by his own testimony as well as by the duplicate copy
of the will, which bears a complete set of signatures in
every page. The text of the attestation clause and the
acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the
time.
This would not be the first time that this Court

departs from a strict and literal application of the
statutory requirements, where the purposes of the law
are otherwise satisfied. Thus, despite the literal tenor
of the law, this Court has held that a testament, with
the only page signed at its foot by testator and wit-
nesses, but not in the left margin, could nevertheless
be probated (Abangan vs. Abangan, 41 Phil. 476); and
that despite the requirement for the correlative letter-
ing of the pages of a will, the failure to make the first
page either by letters or numbers is not a fatal defect
(Lopez vs. Liboro, 81 Phil. 429). These precedents ex-
emplify the Court’s policy to require satisfaction of the
legal requirements in order to guard against fraud
and bad faith but without undue or unnecessary cur-
tailment of the testamentary privilege.
The appellants also argue that since the original
of the will is in existence and available, the duplicate
(Exh. A-l) is not entitled to probate. Since they op-
posed probate of original because it lacked one signa-
ture in its third page, it is easily discerned that op-
positors-appellants run here into a dilemma; if the
original is defective and invalid, then in law there is
no other will but the duly signed carbon duplicate
(Exh. A-l), and the same is probatable. If the original
is valid and can be probated, then the objection to the
signed duplicate need not be considered, being super-
fluous and irrelevant. At any rate, said duplicate, Ex-
hibit A-l, serves to prove that the omission of one
signature in the third page of the original testament
was inadvertent and not intentional.
Notes on Icasiano: The Icasiano holding cannot, and

should not, be taken as a departure from the rule that the will
should be signed by the witnesses on every page. The carbon
duplicate, it will be noted, was regular in all respects. Should
the first copy (Exh. A) have been disregarded and the carbon
duplicate alone considered? There was a dilemma involved here
which the Court resolved thus:
“The appellants also argue that since the origi-

nal of the will is in existence and available, the dupli-
cate (Exh. A-l) is not entitled to probate. Since they

opposed probate of original because it lacked one sig-
nature in its third page, it is easily discerned that op-
positors-appellants run here into a dilemma; if the
original is defective and invalid, then in law there is
no other will but the duly signed carbon duplicate
(Exh. A-l), and the same is probatable. If the original
is valid and can be probated, then the objection to the
signed duplicate need not be considered, being super-
fluous and irrelevant. At any rate, said duplicate, Ex-
hibit A-l, serves to prove that the omission of one
signature in the third page of the original testament
was inadvertent and not intentional.” (at p. 430)
In any event, a cavalier disregard of the formal require-

ments of wills, in reliance on Icasiano, is not recommended.
c) Signing in the presence:

Vide the Nera ruling, supra.
Re: (4) the witnesses must sign every page, except
the last, on the left margin in the presence
of the testator and of one another;
a) The previous comments also explain this re-
quirement.
b) order of signing—The order of signing, inso-
far as all the signing requirements of this ar-
ticle are concerned, is immaterial, provided
everything is done in a single transaction.
However, if the affixation of the signatures is
done in several transactions, then it is re-
quired for validity that the testator affix his
signature ahead of the witnesses. Note that
Art. 699 of the Spanish Code has not been
reproduced in ours:
“699. Todas las Jormalidades expresadas
en esta seccion se practicaran en un solo acto,
sin que sea licita ninguna interrupcion, salvo la
que pueda ser motivada por algun accidente
pasajero. ”
94 Jottings and Jurisprudence ^806
“ART. 699. All the formalities men-

tioned in this section shall take place con-
secutively, and no interruption shall be al-
lowed except such as may be caused by some
trifling occurrence.” (Fisher, The Spanish Civil
Code, p. 273)
Re: (5) all pages numbered correlatively in letters on the

upper part of each page;
As in No. 3, supra, there is a mandatory and a directory

part to this requirement:
1. the mandatory part—pagination by means of a
conventional system. The obvious purpose of this
is to prevent insertion or removal of pages.
2. the directory part—the pagination in letters on the
upper part of each page.
The case of Azuela v. CA (487 SCRA 119 [2006]) may be an

indication of a future endorsement of this view.
Re: (6) attestation clause, stating:

1. the number of pages of the will;
2. the fact that the testator or his agent under
his express direction signed the will and every
page thereof in the presence of the witnesses;
and
3. the fact that the witnesses witnessed and
signed the will and every page thereof in the
presence of the testator and of one another.
a) The attestation clause is the affair of the wit-
nesses, therefore, it need not be signed by the tes-
tator. (Fernandez v. Vergel de Dios, 46 Phil. 922
(1924))
b) The signatures of the witnesses must be at the
bottom of the attestation clause.
Cagro vs. Cagro

92 Phil. 1032 (1953)
PARAS, C.J.:
The main objection insisted upon by the appel-

lants is that the will Is fatally defective, because Its at-
testation clause Is not signed by the attesting wit-
nesses. There Is no question that the signatures of the
three witnesses to the will do not appear at the bot-
tom of the attestation clause, although the page con-
taining 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 signa-
tures. An unsigned attestation clause cannot be con-
sidered 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 signa-
tures 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 bot-
tom thereof, be admitted as sufficient, it would be
easy to add such clause to a will on a subsequent oc-
casion and in the absence of the testator and any or
all of the witnesses.
xxx xxx xxx
BAUTISTA ANGELO, J., dissenting:

I dissent. In my opinion the will in question has
substantially complied with the formalities of the law
and, therefore, should be admitted to probate. It ap-
pears that the will was signed by the testator and was
attested by three instrumental witnesses, not only at

the bottom, but also on the left-hand margin. The
witnesses testified not only that the will was signed by
the testator in their presence and in the presence of
each other but also that when they did so, the attesta-
tion clause was already written thereon. Their testi-
mony has not been contradicted. The only objection
set up by the oppositors to the validity of the will is
the fact that the signatures of the instrumental wit-
nesses do not appear immediately after the attestation
clause.
This objection is too technical to be entertained.
In the case of Abangan us. Abangan, (40 Phil. 476),
this court said that when the testamentary disposi-
tions “are wholly written on only one sheet signed at
the bottom by the testator and three witnesses (as in
the instant case), their signatures on the left margin
of said sheet would be completely purposeless.” In
such a case, the court said, the requirement of the
signatures on the left hand margin was not necessary
because the purpose of the law—which is to avoid the
substitution of any of the sheets of the will, thereby
changing the testator’s dispositions—has already
been accomplished. We may say the same thing in
connection with the will under consideration because
while the three instrumental witnesses did not sign
immediately after the attestation clause, the fear en-
tertained by the majority that it may have been only
added on a subsequent occasion and not at the sign-
ing of the will, has been obviated by the uncontra-
dicted testimony of said witnesses to the effect that
such attestation clause was already written in the will
when the same was signed.”
c) The fact that the attestation clause was written

on a separate page has been held to be a matter
of “minor importance” and apparently will not af-
fect the validity of the will (Villqflor v. Tobias, 53
Phil. 714 [1927]).
Re: (7) acknowledgment before a notary public.
(a)
Javellana vs. Ledesma

97 Phil. 258 (1955)
REYES, J.B.L., J.:
By order of July 23, 1953, the Court of First In-

stance of Iloilo admitted to probate the documents in
the Visayan dialect xxx as the testament and codicil
duly executed by the deceased Da. Apolinaria Le-
desma Vda. de Javellana, on March 30, 1950, and
May 29, 1952, respectively, with Ramon Tabiana, Glo-
ria Montinola de Tabiana and Vicente Yap as wit-
nesses. The contestant, Da. Natea Ledesma, sister
and nearest surviving relative of said deceased, ap-
pealed from the decision, insisting that the said ex-
hibits were not executed in conformity with law. xxx
The Issue was concentrated into three specific
questions: (1) whether the testament of 1950 was exe-
cuted by the testatrix in the presence of the instru-
mental witnesses; (2) whether the acknowledgment
clause was signed and the notarial seal affixed by the
notary without the presence of the testatrix and the
witnesses; and (3) if so, whether the codicil was
thereby rendered invalid and ineffective. These ques-
tions are the same ones presented to us for resolu-
tion.
xxx xxx xxx
The most important variation noted by the con-
testants concerns that signing of the certificate of ac-
knowledgment (in Spanish) appended to the codicil in
Visayan, xxx. Unlike the testament, this Codicil was
executed after the enactment of the new Civil Code,
and, therefore, had to be acknowledged before a no-
tary public (Art. 806). Now, the instrumental wit-
nesses (who happen to be the same ones who attested
the will of 1950) asserted that after the codicil had
been signed by the testatrix and the witnesses at San
Pablo Hospital, the same was signed and sealed by
notary public Gimotea on the same occasion. On the
other hand, Gimotea affirmed that he did not do so,
but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily im-
ply conscious perversion of truth on the part of the

witnesses, but appears rather due to a well-
established phenomenon, the tendency of the mind,
in recalling past events, to substitute the usual and
habitual for what differs slightly from it (II Moore on
Facts, p. 878; The Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below,
whether or not the notary signed the certification of
acknowledg-ment in the presence of the testatrix and
the witnesses, does not affect the validity of the codi-
cil. Unlike the Code of 1889 (Art. 699), the new Civil
Code does not require that the signing of the testator,
witnesses and notary should be accomplished in one
single act. A comparison of Articles 805 and 806 of
the new Civil Code reveals that while testator and wit-
nesses must sign in the presence of each other, all
that is thereafter required is that “every will must be
acknowledged before a notary public by the testator
and the witnesses" (Art. 806); i.e., that the latter
should avow to the certifying officer the authenticity of
their signatures and the voluntariness of their actions
in executing the testamentary disposition. This was
done in the case before us. The subsequent signing
and sealing by the notary of his certification that the
testament was duly acknowledged by the participants
therein is no part of the acknowledgment itself nor of
the testamentary act. Hence, their separate execution
out of the presence of the testatrix and her witnesses
can not be said to violate the rule that testaments
should be completed without interruption (Andalis us.
Pulgueras, 59 Phil. 643), or, as the Roman maxim
puts it, 'uno eodem die ac tempore in eodem loco,’ and
no reversible error was committed by the Court in so
holding. It is noteworthy that Article 806 of the new
Civil Code does not contain words requiring that the
testator and the witnesses should acknowledge the
testament on the same day or occasion that it was
executed.
The decision admitting the will to probate is af-
firmed with costs against appellant.
Ratio in Javellana: The certification of acknowledgment

need not be signed by the notary in the presence of the testator
and the witnesses.
Obiter: Article 806 does not require that the testator and
the witnesses must acknowledge on the same day that it was
executed.
Logical inference: Neither does the article require that the
testator and the witnesses must acknowledge in one another’s
presence.
[If the acknowledgment is done by the testator and the
witnesses separately, all of them must retain their respective
capacities until the last one has acknowledged.]
Quaerendwn: Should the notary be present when the will
is executed?
b) The notary public cannot be counted as one of
the attesting witnesses.
Cruz vs. Villasor
54 SCRA 31 (1973)
ESGUERRA, J.:
The only question presented for determination,

on which the decision of the case hinges, is whether
the supposed last will and testament of Valente Z.
Cruz xxx was executed in accordance with law, par-
ticularly Articles 805 and 806 of the new Civil Code,
the first requiring at least three credible witnesses to
attest and subscribe to the will, and the second re-
quiring the testator and the witnesses to acknowledge
the will before a notary public.
Of the three instrumental witnesses thereto,
namely, Deogracias T. Jamaoas, Jr., Dr. Francisco
Panares, and Atty. Angel H. Teves, Jr., one of them,
the last named, is at the same time the Notary Public
before whom the will was supposed to have been ac-
knowledged. Reduced to simpler terms, the question
was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each
other, considering that the three attesting witnesses

must appear before the notary public to acknowledge
the same. As the third witness is the notary public
himself, petitioner argues that the result is that only
two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private re-
spondent-appellee, Manuel B. Lugay, who is the sup-
posed executor of the will, following the reasoning of
the trial court, maintains that there is substantial
compliance with the legal requirement of having at
least three attesting witnesses even if the notary pub-
lic acted as one of them, bolstering up his stand with
57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:
“It is said that there are practical reasons
for upholding a will as against the purely techni-
cal reason that one of the witnesses required by
law signed as certifying to an acknowledgment of
the testator’s signature under oath rather than
as attesting the execution of the instrument.”
After weighing the merits of the conflicting
claims of the parties, We are inclined to sustain that
of the appellant that the last will and testament in
question was not executed in accordance with law.
The notary public before whom the will was acknowl-
edged cannot be considered as the third instrumental
witness since he cannot acknowledge before himself
his having signed the will. To acknowledge before
means to avow (Javellana v. Ledesma, 97 Phil. 258,
262; Castro v. Castro, 100 Phil. 239, 247); to own as
genuine, to assent, to admit; and ‘before’ means in
front or preceding in space or ahead of. (The New
Webster Encyclopedic Dictionary of the English Lan-
guage, p. 72; Funk & Wagnalls New Standard Diction-
ary of the English Language, p. 252; Webster’s New In-
ternational Dictionary 2d, p. 245.) Consequently, if the
third witness were the notary public himself, he would
have to avow, assent, or admit his having signed the
will in front of himself. This cannot be done because he
cannot split his personality into two so that one will
appear before the other to acknowledge his participa-
tion in the making of the will. To permit such a situa-

tion to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of notary public is,
among others, to guard against any illegal or immoral
arrangements. Balinon v. De Leon, (50 O.G. 583).
That function would be defeated if the notary public
were one of the attesting or instrumental witnesses.
For them (sic) he would be interested in sustaining
the validity of his own act. It would place him in an
inconsistent position and the very purpose of the ac-
knowledgment, which is to minimize fraud (Report of
the Code Commission, pp. 106-107), would be
thwarted.
Admittedly, there are American precedents hold-
ing that a notary public may, in addition, act as a
witness to the execution of the document he has nota-
rized. (Mahilum v. Court of Appeals, 64 O.G. 4017; 17
SCRA 482; Sawyer v. Cox, 43 111. 130). There are oth-
ers holding that his signing merely as a notary in a
will nonetheless makes him a witness thereunder
(Ferguson v. Ferguson, 47 S.E. 2d. 346; In Re Doug-
las' Will, 83 N.Y.S. 2d. 641; Ragsdal v. Hill, 269 S.W.
2d. 911; Tyson v. Utterback, 122 So. 496; In Re Bay-
bee's Estate, 160 N.W. 900; Merill v. Boal, 132 A. 721;
See also Trenwith v. Smallwood, 15 So. 1030). But
these authorities do not serve the purpose of the law
in this jurisdiction or are not decisive of the issue
herein, because notaries public and witnesses re-
ferred to in the aforecited cases merely acted as in-
strumental, subscribing or attesting witnesses, and
not as acknowledging witnesses. Here the notary pub-
lic acted not only as attesting witness but also as ac-
knowledging witness, a situation not envisaged by Ar-
ticle 805 (sic) of the Civil Code which reads:
“ART. 806. Every will must be acknowl-
edged before a notary public by the testator and
the witnesses. The notary public shall not be re-
quired to retain a copy of the will or file another
with the office of the Clerk of Court.” [Underscor-
ing supplied]
To allow the notary public to act as third wit-

ness, or one of the attesting and acknowledging wit-
nesses, would have the effect of having only two at-
testing witnesses to the will which would be in contra-
vention to the provisions of Article 805 requiring at
least three credible witnesses to act as such and of
Article 806 which requires that the testator and the
required number of witnesses must appear before the
notary public to acknowledge the will. The result
would be, as has been said, that only two witnesses
appeared before the notary public for that purpose. In
the circumstances, the law would not be duly ob-
served.
Probate of the last will and testament of Valente

Z. Cruz xxx is declared not valid and hereby set aside.
c) Affixing of documentary stamp is not required

for validity. (Gabucan v. Manta, 95 SCRA 752
[1980]).
ARTICLE 807. If the testator be deaf, or a deaf-mute,

he must personally read the will, if able to do so; otherwise,
he shall designate two persons to read it and communicate
to him, in some practicable manner, the contents thereof,
(n)
ARTICLE 808. If the testator is blind, the will shall be

read to him twice; once, by one of the subscribing wit-
nesses, and again, by the notary public before whom the
will is acknowledged, (n)
I. These two articles lay down special requirements for

handicapped testators:
A. For deaf/deaf-mute testator:
1) if able to read—he must read the will person-
ally
2) if unable to read—he must designate two per-
sons to read the will and communicate to him,
in some practicable manner its contents.
Quaerendum: Does this mean the two persons must per-

form the task each in turn?
B. For blind testator:
Will to be read to him twice, once by one of the subscrib-

ing witnesses, and another time by the notary.
II. Provision of Article 808 mandatory:
Garcia vs. Vasquez

32 SCRA 489 (1970)
REYES, J.B.L., J.:
Foremost of the questions to be determined here

concerns the correctness of the order allowing the
probate of the 1960 will.
The records of the probate proceeding fully es-
tablish the fact that the testatrix, Gliceria A. del
Rosario, during her lifetime, executed two wills: one
on 9 June 1956 consisting of 12 pages and written in
Spanish, a language that she knew and spoke, wit-
nessed by Messrs. Antonio Cabrera, Jesus Y. Ayala
and Valentin Marquez, and acknowledged before no-
tary public Jose Ayala; and another dated 29 Decem-
ber 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco De-
cena and Francisco Lopez and acknowledged before
notary public Remigio M. Tividad.
Called to testify on the due execution of the
1960 will, instrumental witnesses Decena, Lopez and
Rosales uniformly declared that they were individually
requested by Alfonso Precilla (the late husband of pe-
titioner special administratrix) to witness the execu-
tion of the last will of Dona Gliceria A. del Rosario;
that they arrived at the house of the old lady at No.
2074 Azcarraga, Manila, one after the other, in the af-
ternoon of 29 December 1960; that the testatrix at the
time was apparently of clear and sound mind, al-
though she was being aided by Precilla when she
walked; that the will, which was already prepared,
was first read “silently” by the testatrix herself before

she signed it; that the three witnesses thereafter
signed the will in the presence of the testatrix and the
notary public and of one another. There is also testi-
mony that after the testatrix and the witnesses to the
will acknowledged the instrument to be their volun-
tary act and deed, the notary public asked for their
respective residence certificates which were handed to
him by Alfonso Precilla, clipped together; that after
comparing them with the numbers already written on
the will, the notary public filled in the blanks in the
instrument with the date, 29 January 1960, before he
affixed his signature and seal thereto. They also testi-
fied that on that occasion no pressure or influence
has been exerted by any person upon the testatrix to
execute the will.
Of course, the interest and active participation of
Alfonso Precilla in the signing of this 1960 will are
evident from the records. The will appeared to have
been prepared by one who is not conversant with the
spelling of Tagalog words, and it has been shown that
Alfonso Precilla is a Cebuano who speaks Tagalog
with a Visayan accent. The witnesses to the will, two
of whom are fellow Visayans, admitted their relation-
ship or closeness to Precilla. It was Precilla who in-
structed them to go to the house of Gliceria del
Rosario on 29 December 1960 to witness an impor-
tant document, and who took their residence certifi-
cates from them a few days before the will was signed.
Precilla had met the notary public and witnesses
Rosales and Lopez at the door of the residence of the
old woman; he ushered them to the room at the sec-
ond floor where the signing of the document took
place; then he fetched witness Decena from the lat-
ter's haberdashery shop a few doors away and
brought him to the house of the testatrix. And when
the will was actually executed Precilla was present.
The oppositors-appellants in the present case,
however, challenging the correctness of the probate
court’s ruling, maintain that on 29 December 1960
the eyesight of Gliceria del Rosario was so poor and
defective that she could not have read the provisions
of the will, contrary to the testimonies of witnesses

Decena, Lopez and Rosales.
On this point, we find the declarations in court
of Dr. Jesus V. Tamesis veiy material and illuminat-
ing. Said opthalmologist, whose expertise was admit-
ted by both parties, testified, among other things, that
when Dona Gliceria del Rosario saw him for consulta-
tion on 11 March 1960 he found her left eye to have
cataract (opaque lens), and that it was “above normal
pressure,” denoting a possible glaucoma, a disease
that leads to blindness.
xxx xxx xxx
The records also show that although Dr. Tame-
sis operated on the left eye of the decedent at the
Lourdes Hospital on 8 August 1960; as of 23 August
1960, in spite of the glasses her vision was only
“counting fingers” at five feet. The cross examination
of the doctor further elicited the following responses:
“Q: After she was discharged from the hospital,
you prescribed lenses for her or glasses?
“A: After her discharge from the hospital, she
was coming to my clinic for further examination and
then sometime later glasses were prescribed.
xxx xxx xxx
“Q: And the glasses prescribed by you enabled
her to read, Doctor?
“A: As far as my record is concerned, with the
glasses for the left eye which I prescribed—the eye
which I operated—she could see only forms but not
read. That is on the left eye.
“Q: How about the right eye?
"A: The same although the vision on the right
eye is even better than the left eye.”
Then, confronted with a medical certificate xxx
issued by him on 29 November 1965 certifying that
Gliceria del Rosario was provided with aphakic lenses
and “had been under medical supervision up to 1963
with apparently good vision,” the doctor had this to

say:
“Q: When you said that she had apparently
good vision you mean that she was able to read?
“A: No, not necessarily, only able to go around,
take care of herself and see.
xxx xxx xxx
“Q: What about the vision in the right eye, was
that corrected by the glasses?
“A: Yes, with the new prescription which I is-
sued on 30 August 1960. It is in the clinical record.
"Q: The vision in the right eye was corrected?
“A: Yes. That is the vision for distant objects.”
The foregoing testimony of the ophthalmologist
who treated the deceased and, therefore, has first
hand knowledge of the actual condition of her eye-
sight from August, 1960 up to 1963, fully establish
the fact that notwithstanding the operation and re-
moval of the cataract in her left eye and her being fit-
ted with aphakic lenses (used by cataract patients),
her vision remained mainly for viewing distant objects
and not for reading print. Thus, the conclusion is in-
escapable that with the condition of her eyesight in
August, 1960, and there is no evidence that it had
improved by 29 December 1960, Gliceria del Rosario
was incapable of reading, and could not have read the
provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instru-
mental witnesses stated that she read the instrument
“silently” xxx which is a conclusion and not a fact.
Against the background of defective eyesight of
the alleged testatrix, the appearance of the will xxx
acquires striking significance. Upon its face, the tes-
tamentary provisions, the attestation clause and ac-
knowledgment were crammed together into a single
sheet of paper, so much so that the words had to be
written very close to the top, bottom and two sides of
the paper, leaving no margin whatsoever; the word
“and” had to be written by the symbol "apparently
to save on space. Plainly, the testament was not pre-

pared with regard for the defective vision of Dona Gli-
ceria. Further, typographical errors like “HULINH" for
“HULING” (last), “Alfonsa” for “Alfonso,” “MERCRDRS”
for “MERCEDES,” “instrumental” for “Instrumental,”
and “acknowledged" for “acknowledge,” remained un-
corrected, thereby indicating that execution thereof
must have been characterized by haste. It is difficult
to understand that so important a document contain-
ing the final disposition of one’s worldly possessions
should be embodied in an informal and untidily writ-
ten instrument; or that the glaring spelling errors
should have escaped her notice if she actually re-
tained the ability to read the purported will and had
done so. The record is thus convincing that the sup-
posed testatrix could not have physically read or un-
derstood the alleged testament xxx and that its ad-
mission to probate was erroneous and should be re-
versed.
That Dona Gliceria should be able to greet her
guests on her birthday, arrange flowers and attend to
kitchen tasks shortly prior to the alleged execution of
the testament xxx as appears from the photographs
xxx in no way proves that she was able to read a
closely typed page, since the acts shown do not re-
quire vision at close range. It must be remembered
that with the natural lenses removed her eyes had
lost the power of adjustment to near vision, the sub-
stituted glass lenses being rigid and uncontrollable by
her. Neither is the signing of checks xxx by her in-
dicative of ability to see at normal reading distances.
Writing or signing of one’s name, when sufficiently
practiced, becomes automatic, so that one need only
to have a rough indication of the place where the sig-
nature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified
in the photograph xxx reinforces the contention of op-
positors that the alleged testatrix could not see at
normal reading distance: the signatures in the checks
are written far above the printed base, lines, and the
names of the payees as well as the amounts written
do not appear to be in the handwriting of the alleged
testatrix, being in a much firmer and more fluid hand

than hers.
Thus, for all intents and purposes of the rules

on probate, the deceased Gliceria del Rosario was, as
appellants oppositors contend, not unlike a blind tes-
tator, and the due execution of her will would have
required observance of the provisions of Article 808 of
the Civil Code.
xxx xxx xxx

The rationale behind the requirement of reading
the will to the testator if he is blind or incapable of
reading the will himself (as when he is illiterate), is to
make the provisions thereof known to him, so that he
may be able to object if they are not in accordance
with his wishes. That the aim of the law is to insure
that the dispositions of the will are properly commu-
nicated to and understood by the handicapped testa-
tor, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be
read to the latter, not only once, but twice, by two dif-
ferent persons, and that the witnesses have to act
within the range of his (the testator's) other senses.
In connection with the will here in question,

there is nothing in the records to show that the above
requisites have been complied with. Clearly, as al-
ready stated, the 1960 will sought to be probated suf-
fers from infirmity that affects its due execution.
[Note: In a Resolution on a Motion for Reconsideration

(Precilla v. Narciso, 46 SCRA 538) the Court, through Mr. Jus-
tice Barredo (with Justice JBL Reyes, Chief Justice Concepcion,
and Justices Makalintal and Castro dissenting) resolved to re-
mand the case to the court a quo to receive additional evidence
on whether the testatrix was effectively blind or not. The ruling
in the original case, however, that if the testator is blind, the
provision of Art. 808 is mandatory, was not modified or over-
turned].
1. The requirement has been liberally applied, the

Supreme Court declaring substantial compliance
to be sufficient.
Alvarado vs. Gaviola, Jr.

226 SCRA 348 (1993)
BELLOSILLO, J.:
Before us is an appeal from the Decision dated

11 April 1986 of the First Civil Cases Division of the
then Intermediate Appellate Court, now Court of Ap-
peals, which affirmed the Order dated 27 June 1983
of the Regional Trial Court of Sta. Cruz, Laguna, ad-
mitting to probate the last will and testament with
codicil of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido
Alvarado executed a notarial will entitled “Huling Ha-
bilin” wherein he disinherited an illegitimate son (peti-
tioner) and expressly revoked a previously executed
holographic will at the time awaiting probate before
Branch 4 of the Regional Trial Court of Sta. Cruz, La-
guna.
As testified to by the three instrumental wit-
nesses, the notary public and by private respondent
who were present at the execution, the testator did
not read the final draft of the will himself. Instead,
private respondent, as the lawyer who drafted the
eight-paged document, read the same aloud in the
presence of the testator, the three instrumental wit-
nesses and the notary public. The latter four followed
the reading with their own respective copies previ-
ously furnished them.
Meanwhile, Brigido’s holographic will was sub-
sequently admitted to probate on 9 December 1977.
On the 29th day of the same month, a codicil entitled
“Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na May Petsa Nobiembre
5, 1977 ni Brigido Alvarado” was executed changing
some dispositions in the notarial will to generate cash
for the testator’s eye operation. Brigido was then suf-
fering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of
the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private re-
spondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as

those of the notarial will) and the notary public who
followed the reading using their own copies.
A petition for the probate of the notarial will and
codicil was filed upon the testator’s death on 3 Janu-
ary 1979 by private respondent as executor with the
Court of First Instance, now Regional Trial Court, of
Siniloan, Laguna. Petitioner, in turn, filed an Opposi-
tion on the following grounds: that the will sought to
be probated was not executed and attested as re-
quired by law: that the testator was insane or other-
wise mentally incapacitated to make a will at the time
of its execution due to senility and old age; that the
will was executed under duress, or influence of fear or
threats; that it was procured by undue and improper
pressure and influence on the part of the beneficiary
who stands to get the lion’s share of the testator’s es-
tate; and lastly, that the signature of the testator was
procured by fraud or trick.
When the oppositor (petitioner) failed to sub-
stantiate the grounds relied upon in the Opposition, a
Probate Order was issued on 27 June 1983 from
which an appeal was made to respondent court. The
main thrust of the appeal was that the deceased was
blind within the meaning of the law at the time his
“Huling Habilin” and the codicil attached thereto was
executed; that since the reading required by Art. 808
of the Civil Code was admittedly not complied with,
probate of the deceased’s last will and codicil should
have been denied.
On 11 April 1986, the Court of Appeals rendered
the decision under review with the following findings:
that Brigido Alvarado was not blind at the time his
last will and codicil were executed; that assuming his
blindness, the reading requirement of Art. 808 was
substantially complied with when both documents
were read aloud to the testator with each of the three
instrumental witnesses and the notary public follow-
ing the reading with their respective copies of the in-
struments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there
was substantial compliance since its purpose of mak-
ing known to the testator the contents of the drafted

will was served.
The issues now before us can be stated thus:
Was Brigido Alvarado blind for purposes of Art. 808 at
the time his “Huling Habilin” and its codicil were exe-
cuted? If so, was the double-reading requirement of
said article complied with?
Regarding the first issue, there is no dispute on
the following facts: Brigido Alvarado was not totally
blind at the time the will and codicil were executed.
However, his vision on both eyes was only of “count-
ing fingers at three (3) feet” by reason of the glaucoma
which he had been suffering from for several years
and even prior to his first consultation with an eye
specialist on 14 December 1977.
The point of dispute is whether the foregoing cir-
cumstances would qualify Brigido as “blind” testator
under Art. 808 which reads:
“Art. 808. If the testator is blind, the will
shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary
public before whom the will is acknowledged.”
Petitioner contends that although his father was
not totally blind when the will and codicil were exe-
cuted, he can be so considered within the scope of the
term as it is used in Art. 808. To support his stand,
petitioner presented before the trial court a medical
certificate issued by Dr. Salvador R. Salceda, Director
of the Institute of Ophthalmology (Philippine Eye Re-
search Institute), the contents of which were inter-
preted in layman’s terms by Dr. Ruperto Roasa,
whose expertise was admitted by private respondent.
Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer
read either printed or handwritten matters as of 14
December 1977, the day of his first consultation.
On the other hand, the Court of Appeals, con-
trary to the medical testimony, held that the testator
could still read on the day the will and the codicil
were executed but chose not to do so because of “poor
eyesight." Since the testator was still capable of read-

ing at that time, the court a quo concluded that Art.
808 need not be complied with.
We agree with petitioner, in this respect.
Regardless of respondent’s staunch contention
that the testator was still capable of reading at the
time his will and codicil were prepared, the fact re-
mains and this was testified to by his witnesses, that
Brigido did not do so because of his "poor," “defec-
tive,” or “blurred” vision making it necessary for pri-
vate respondent to do the actual reading for him.
The following pronouncement in Garcia vs.
Vasquez provides an insight into the scope of the term
“blindness” as used in Art. 808, to wit:
“The rationale behind the requirement of
reading the will to the testator if he is blind or in-
capable of reading the will himself (as when he is
illiterate), is to make the provisions thereof known
to him, so that he may be able to object if they are
not in accordance with his wishes x x x x”
Clear from the foregoing is that Art. 808 applies
not only to blind testators but also to those who, for
one reason or another, are “incapable of reading
the(ir) will(s).” Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the
separate occasions of their execution due to his
“poor," “defective,” or “blurred” vision, there can be no
other course for us but to conclude that Brigido Alva-
rado comes within the scope of the term “blind” as it
is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so con-
formably with his instructions. Hence, to consider his
will as validly executed and entitled to probate, it is
essential that we ascertain whether Art. 808 had been
complied with.
Article 808 requires that in case of testators like
Brigido Alvarado, the will shall be read twice; once, by
one of the instrumental witnesses and, again, by the
notary public before whom the will was acknowledged.
The purpose Is to make known to the incapacitated

testator the contents of the document before signing
and to give him an opportunity to object if anything is
contrary to his Instructions.
That Art. 808 was not followed strictiy is beyond
cavil. Instead of the notary public and an instrumen-
tal witness, it was the lawyer (private respondent) who
drafted the eight-paged will and the five-paged codicil
who read the same aloud to the testator, and read
them only once, not twice as Art. 808 requires.
Private respondent however insists that there
was substantial compliance and that the single read-
ing suffices for purposes of the law. On the other
hand, petitioner maintains that the only valid compli-
ance is a strict compliance or compliance to the letter
and since it is admitted that neither the notary public
nor an instrumental witness read the contents of the
will and codicil to Brigido, probate of the latter’s will
and codicil should have been disallowed.
We sustain private respondent’s stand and nec-
essarily, the petition must be denied.
This Court has held in a number of occasions
that substantial compliance is acceptable where the
purpose of the law has been satisfied, the reason be-
ing that the solemnities surrounding the execution of
wills are intended to protect the testator from all
kinds of fraud and trickery but are never intended to
be so rigid and inflexible as to destroy the testamen-
tary privilege.
In the case at bar, private respondent read the
testator’s will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the
notary public. Prior and subsequent thereto, the tes-
tator affirmed, upon being asked, that the contents
read corresponded with his instructions. Only then
did the signing and acknowledgment take place.
There is no evidence, and petitioner does not so al-
lege, that the contents of the will and codicil were not
sufficiently made known and communicated to the
testator. On the contrary, with respect to the “Huling
Habilin,” the day of the execution was not the first
time that Brigido had affirmed the truth and authen-

ticity of the contents of the draft. The uncontradicted
testimony of Atty. Rino is that Brigido Alvarado al-
ready acknowledged that the will was drafted in ac-
cordance with his expressed wishes even prior to 5
November 1977 when Atty. Rino went to the testator’s
residence precisely for the purpose of securing his
conformity to the draft.
Moreover, it was not only Atty. Rino who read
the documents on 5 November and 29 December
1977. The notary public and the three instrumental
witnesses likewise read the will and codicil, albeit si-
lently. Afterwards, Atty. Nonia de la Pena (the notary
public) and Dr. Crescente O. Evidente (one of the in-
strumental witnesses and the testator’s physician)
asked the testator whether the contents of the docu-
ments were of his own free will. Brigido answered in
the affirmative. With four persons following the read-
ing word for word with their own copies, it can be
safely concluded that the testator was reasonably as-
sured that what was read to him (those which he af-
firmed were in accordance with his instructions), were
the terms actually appearing on the typewritten
documents. This is especially true when we consider
the fact that the three instrumental witnesses were
persons known to the testator, one being his physi-
cian (Dr. Evidente) and another (Potenciano C. Rani-
eses) being known to him since childhood.
The spirit behind the law was served though the
letter was not. Although there should be strict com-
pliance with the substantial requirements of the law
in order to insure the authenticity of the will, the for-
mal 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.
As a final word to convince petitioner of the pro-
priety of the trial court’s Probate Order and its affir-
mance by the Court of Appeals, we quote the following
pronouncement in Abangan v. Abangan, to wit:
“The object of the solemnities surrounding
the execution of wills is to close the door against
bad faith and fraud, to avoid the substitution of

wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the sub-
ject should be interpreted in such a way as to
attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So
when an interpretation already given assures
such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of
the testator’s will, must be disregarded' (italics
supplied)
Brigido Alvarado had expressed his last wishes
in clear and unmistakable terms in his “Huling Habi-
lin” and the codicil attached thereto. We are unwilling
to cast these aside for the mere reason that a legal re-
quirement intended for his protection was not fol-
lowed strictly when such compliance had been ren-
dered unnecessary by the fact that the purpose of the
law, i.e., to make known to the incapacitated testator
the contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance
suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the
assailed Decision of respondent Court of Appeals
dated 11 April 1986 is AFFIRMED. Considering the
length of time that this case has remained pending,
this decision is immediately executory. Costs against
petitioner.
SO ORDERED.”
2. It should be noted that both the sense of Article

808 and the implication in Garcia are that the bur-
den of proof is upon the proponent of the will that
the special requirement of the article was complied
with. At the same time, there is no requirement
that compliance with the requirement be stated ei-
ther in the will or the attestation clause.
3. Rule in case of illiterate testator - The suggestion

in both Garcia and Alvarado is that an illiterate tes-
tator, because of his incapacity to read the will is
not unlike a blind testator. Consequently, Article
808 should apply.
4. If Article 808 is mandatory, by evident analogy Ar-
ticle 807 would also be mandatory. Failure to com-
ply with either would result in nullity and denial of
probate.
ARTICLE 809. In the absence of bad faith, forgery, or

fraud, or undue and improper pressure and influence, de-
fects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it
is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of Article
805. (n)
An attempt to temper the strictness of the formal require-

ments of attested wills, but the law may have thrown away the
baby with the bath-water.
Justice J.B.L. Reyes has criticized this provision as “liber-
alization running riot.” Sufficient guidelines should have been
given to limit discretion. Justice Reyes suggests a possible re-
wording:
“In the absence of bad faith, forgery, or fraud, or

undue and improper pressure and influence, defects
and imperfections in the form of attestation or in the
language used therein shall not render the will invalid
if such defects and imperfections can be supplied by
an examination of the will itself and it is proved that
the will was in fact executed and attested in substan-
tial compliance with all the requirements of Article
805." {Lawyers Journal, November 30, 1950, p. 566.)
Examples:
1) A failure by the attestation clause to state that
the testator signed every page can be liberally
construed, since that fact can be checked by a
visual examination.
2) A failure by the attestation clause to state that
the witnesses signed in one another’s presence
should be considered a more serious, indeed a
fatal, flaw, since the attestation clause is the
only textual guarantee of compliance.
These observations of Justice J.B.L. Reyes have been
adopted by the Supreme Court.
Caneda v. Court of Appeals
222 SCRA 781 (1993)
REGALADO, J.:
Presented for resolution by this Court in the

present petition for review on certiorari is the issue of
whether or not the attestation clause contained In the
last will and testament of the late Mateo Caballero
complies with the requirements of Article 805, in rela-
tion to Article 809, of the Civil Code.
The records show that on December 5, 1978,
Mateo Caballero, a widower without any children and
already in the twilight years of his life, executed a last
will and testament at his residence in Talisay, Cebu
before three attesting witnesses, namely, Cipriano La-
buca, Gregorio Cabando and Flaviano Toregosa. The
said testator was duly assisted by his lawyer, Atty.
Emilio Lumontad, and a notary public, Atty. Filoteo
Manigos, in the preparation of that last will. It was
declared therein, among other things, that the testa-
tor was leaving by way of legacies and devises his real
and personal properties to Presentacion Gaviola, An-
gel Abatayo, Rogelio Abatayo, Isabelito Abatayo, Be-
noni G. Cabrera and Marcosa Alcantara, all of whom
do not appear to be related to the testator.
Four months, later, or on April 4, 1979, Mateo
Caballero himself filed a petition docketed as Special
Proceeding No. 3899-R before Branch II of the then
Court of First Instance of Cebu seeking the probate of
his last will and testament. The probate court set the
petition for hearing on August 20, 1979 but the same
and subsequent scheduled hearings were postponed

for one reason or another. On May 29, 1980, the tes-
tator passed away before his petition could finally be
heard by the probate court. On February 25, 1981,
Benoni Cabrera, one of the legatees named in the will,
sought his appointment as special administrator of
the testator’s estate, the estimated value of which was
P24.000.00, and he was so appointed by the probate
court in its order of March 6, 1981.
Thereafter, herein petitioners, claiming to be
nephews and nieces of the testator, instituted a sec-
ond petition, entitled “In the Matter of the Intestate
Estate of Mateo Caballero” and docketed as Special
Proceeding No. 3965-R, before Branch IX of the afore-
said Court of First Instance of Cebu. On October 18,
1982, herein petitioners had their said petition for in-
testate proceedings consolidated with Special Pro-
ceeding No. 3899-R in Branch II of the Court of First
Instance of Cebu and opposed thereat the probate of
the testator’s will and the appointment of a special
administrator for his estate.
Benoni Cabrera died on February 8, 1982 hence
the probate court, now known as Branch XV of the
Regional Trial Court of Cebu, appointed William
Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for
the return of the records of Special Proceeding No.
3965-R to the archives since the estate proceedings
for the probate of the will had to be heard and re-
solved first. On March 26, 1984 the case was reraffled
and eventually assigned to Branch XII of the Regional
Trial Court of Cebu where it remained until the con-
clusion of the probate proceedings.
In the course of the hearing in Special Proceed-
ing No. 3899-R, herein petitioners appeared as op-
positor and objected to the allowance of the testator’s
will on the ground that on the alleged date of its exe-
cution, the testator was already in a poor state of
health such that he could not have possibly executed
the same. Petitioners likewise reiterated the issue as
to the genuineness of the signature of the testator
therein.
On the other hand, one of the attesting wit-

nesses, Cipriano Labuca, and the notary public, Atty.
Filoteo Manigos, testified that the testator executed
the will in question in their presence while he was of
sound and disposing mind and that, contrary to the
assertions of the oppositors, Mateo Caballero was in
good health and was not unduly influenced in any
way in the execution of his will. Labuca also testified
that he and the other witnesses attested and signed
the will in the presence of the testator and of each
other. The other two attesting witnesses were not pre-
sented in the probate hearing as they had died by
then.
On April 5, 1988, the probate court rendered a
decision declaring the will in question as the last will
and testament of the late Mateo Caballero, on the ra-
tiocination that:
“x x x The self-serving testimony of the two
witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that
indeed Mateo Caballero executed this Last Will
and Testament now marked Exhibit ‘C’ on De-
cember 5, 1978. Moreover, the fact that it was
Mateo Caballero who initiated the probate of his
Will during his lifetime when he caused the filing
of the original petition now marked Exhibit ‘D’
clearly underscores the fact that this was indeed
his Last Will. At the start, counsel for the op-
positors manifested that he would want the sig-
nature of Mateo Caballero in Exhibit ‘C’ exam-
ined by a handwriting expert of the NBI but it
would seem that despite their avowal and inten-
tion for the examination of this signature of
Mateo Caballero in Exhibit ‘C’, nothing came out
of it because they abandoned the idea and in-
stead presented Aurea Caballero and Helen Ca-
ballero Campo as witnesses for the oppositors.
“All told, it is the finding of this Court that
Exhibit ‘C’ is the Last Will and Testament of
Mateo Caballero and that it was executed in ac-
cordance with all the requisites of law.”
Undaunted by said judgment of the probate

court, petitioners elevated the case to the Court of
Appeals in CA-G.R. CV No. 19669. They asserted
therein that the will in question is null and void for
the reason that its attestation clause is fatally defec-
tive since it fails to specifically state that the instru-
mental witnesses to the will witnessed the testator
signing the will in their presence and that they also
signed the will and all the pages thereof in the pres-
ence of the testator and of one another.
On October 15, 1991, respondent court promul-
gated its decision affirming that of the trial court, and
ruling that the attestation clause in the last will of
Mateo Caballero substantially complies with Article
805 of the Civil Code, thus:
“The question therefore is whether the at-
testation clause in question may be considered
as having substantially complied with the re-
quirements of Art. 805 of the Civil Code. What
appears in the attesta-tion clause which the op-
positors claim to be defective is ‘we do certify
that the testament was read by him and the tes-
tator, Mateo Caballero, has published unto us
the foregoing will consisting of THREE PAGES,
including the acknowledgement, each page
numbered correlatively in letters on the upper
part of each page, as his Last Will and Testa-
ment, and he has signed the same and every
page thereof, on the spaces provided for his sig-
nature and on the left hand margin in the pres-
ence of the said testator and in the presence of
each, and all of us’ (Italics supplied).
‘To our thinking, this is sufficient compli-
ance and no evidence need be presented to indi-
cate the meaning that the said will was signed
by the testator and by them (the witnesses) in
the presence of all of them and of one another.
Or as the language of the law would have it that
the testator signed the will ‘in the presence of
the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another.’ If not completely or Ideally perfect in

accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial
compliance with the requirement of the law."
Petitioners moved for the reconsideration of said
ruling of respondent court, but the same was denied
in the latter’s resolution of January 14, 1992, hence
this appeal now before us. Petitioners assert that re-
spondent court has ruled upon said issue in a man-
ner not in accord with the law and the settled juris-
prudence on the matter and are now questioning once
more, on the same ground as that raised before re-
spondent court, the validity of the attestation clause
in the last will of Mateo Caballero.
We find the present petition to be meritorious,
as we shall shortly hereafter explain, after some prefa-
tory observations which we feel should be made in aid
of the rationale for our resolution of the controversy.
xxx xxx xxx
“Art. 805. Every will other than a holo-
graphic will, must be subscribed at the end
thereof by the testator himself or by the testa-
tor’s name written by some other person in his
presence, and by his express direction, and at-
tested and subscribed by three or more credible
one another.
The testator or the person requested by
him to write his name and the instrumental wit-
nesses of the will, shall also sign, as aforesaid,
each and every page thereof, except the last, on
the left margin, and all the pages shall be num-
bered correlatively in letters placed on the upper
part of each page.
The attestation shall state the number of
pages used upon which the will is written, and
the fact that the testator signed the will and
every page thereof, or caused some other person
to write his name, under his express direction,
in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will

and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language
not known to the witnesses, it shall be inter-
preted to them.”
In addition, the ordinary will must be acknowl-
edged before a notary public by the testator and the
attesting witnesses, hence it is likewise known as a
notarial will. Where the testator is deaf or a deaf-
mute, Article 807 requires that he must personally
read the will, if able to do so. Otherwise, he should
designate two persons who will read the will and
communicate its contents to him in a practicable
manner. On the other hand, if the testator is blind,
the will should be read to him twice; once, by anyone
of the witnesses thereto, and then again, by the no-
tary public before whom it is acknowledged.
The other kind of will is the holographic will,
which Article 810 defines as one that is entirely writ-
ten, dated, and signed by the hand of the testator
himself. This kind of will, unlike the ordinary type,
requires no attestation by witnesses. A common re-
quirement in both kinds of wills is that they should be
in writing and must have been executed in a language
or dialect known to the testator.
However, in the case of an ordinary or attested
will, its attestation clause need not be written in a
language or dialect known to the testator since it does
not form part of the testamentary disposition. Fur-
thermore, the language used in the attestation clause
likewise need not even be known to the attesting wit-
nesses. The last paragraph of Article 805 merely re-
quires that, in such a case, the attestation clause
shall be interpreted to said witnesses.
An attestation clause refers to that part of an
ordinary will whereby the attesting witnesses certify
that the instrument has been executed before them
and to the manner of the execution of the same. It is
a separate memorandum or record of the facts sur-
rounding the conduct of execution and once signed by
the witnesses, it gives affirmation to the fact that

compliance with the essential formalities required by
law has been observed. It is made for the purpose of
preserving in a permanent form a record of the fact
that attended the execution of a particular will, so
that in case of failure of the memory of the attesting
witnesses, or other casualty, such facts may still be
proved.
Under the third paragraph of Article 805, such a
clause, the complete lack of which would result in the
invalidity of the will, should state (1) the number of
pages used upon which the will is written; (2) that the
testator signed, or expressly caused another to sign,
the will and every page thereof in the presence of the
attesting witnesses; and (3) that the attesting wit-
nesses witnessed the signing by the testator of the will
and all its pages, and that said witnesses also signed
the will and every page thereof in the presence of the
testator and of one another.
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 omis-
sion of one or some of its pages and to prevent any
increase or decrease in the pages, whereas the sub-
scription of the signatures of the testator and the at-
testing witnesses is made for the purpose of authenti-
cation and identification, and thus indicates that the
will is the very same instrument executed by the tes-
tator and attested to by the witnesses.
Further, by attesting and subscribing to the will,
the witnesses thereby declare the due execution of the
will as embodied in the attestation clause. The at-
testation clause, therefore, provides strong legal guar-
anties for the due execution of a will and to insure the
authenticity thereof. As it appertains only to the wit-
nesses and not to the testator, it need be signed only
by them. Where it is left unsigned, it would result in
the invalidation of the will as it would be possible and
easy to add the clause on a subsequent occasion in
the absence of the testator and the witnesses.
In its report, the Code Commission commented

on the reasons of the law for requiring the formalities
to be followed in the execution of wills, in the following
manner:
“The underlying and fundamental objec-
tives permeating the provisions on the law on
wills in this Project consists in the liberalization
of the manner of their execution with the end in
view of giving the testator more freedom in ex-
pressing his last wishes, but with sufficient
safeguards and restrictions to prevent the com-
mission of fraud and the exercise of undue and
improper pressure and influence upon the testa-
tor.
“This objective is in accord with the mod-
em tendency with respect to the formalities in
the execution of wills, x x x”
2. An examination of the last will and testa-
ment of Mateo Caballero shows that it is comprised of
three sheets all of which have been numbered correla-
tively, with the left margin of each page thereof bear-
ing the respective signatures of the testator and the
three attesting witnesses. The part of the will contain-
ing the testamentary dispositions is expressed in the
Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in ques-
tion, on the other hand, is recited in the English lan-
guage and is likewise signed at the end thereof by the
three attesting witnesses thereto. Since it is the pro-
verbial bone of contention, we reproduce it again for
facility of reference:
“We, the undersigned attesting Witnesses,
whose Residences and postal addresses appear
on the Opposite of our respective names, we do
hereby certify that the Testament was read by
him and the testator, MATEO CABALLERO, has
published unto us the foregoing Will consisting
of THREE PAGES, including the Acknowledg-
ment, each page numbered correlatively in let-
ters on the upper part of each page, as his Last
Will and Testament and he has signed the same
and eveiy page thereof, on the spaces provided

for his signature and on the left hand margin, in
the presence of the said testator and in the pres-
ence of each and all of us.”
It will be noted that Article 805 requires that the
witnesses should both attest and subscribe to the will
in the presence of the testator and of one another.
“Attestation” and “subscription” differ in meaning. At-
testation is the act of the senses, while subscription is
the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was
published as such, and to certify the facts required to
constitute an actual and legal publication; but to sub-
scribe a paper published as a will is only to write on
the same paper the names of the witnesses, for the
sole purpose of identification.
In Taboada vs. Rosal, we clarified that attesta-
tion consists in witnessing the testator’s execution of
the will in order to see and take note mentally that
those things are done which the statute requires for
the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscrip-
tion is the signing of the witnesses’ names upon the
same paper for the purpose of identification of such
paper as the will which was executed by the testator.
As it involves a mental act, there would be no means,
therefore, of ascertaining by a physical examination of
the will whether the witnesses had indeed signed in
the presence of the testator an of each other unless
this is substantially expressed in the attestation.
It is contended by petitioners that the afore-
quoted attestation clause, in contravention of the ex-
press requirements of the third paragraph of Article
805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses
witnessed the testator sign the will and all its pages in
their presence and that they, the witnesses, likewise
signed the will and every page thereof in the presence
of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of
the attestation clause herein assailed is the fact that
while it recites that the testator indeed signed the will

and all its pages in the presence of the three attesting
witnesses and states as well the number of pages that
were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their
respective signatures to the will in the presence of the
testator and of each other.
The phrase “and he has signed the same and
every page thereof, on the spaces provided for his sig-
nature and on the left hand margin,” obviously refers
to the testator and not the instrumental witnesses as
it is immediately preceded by the words “as his Last
Will and Testament.” On the other hand, although the
words “in the presence of the testator and in the pres-
ence of each and all of us” may, at first blush, appear
to likewise signify and refer to the witnesses, it must,
however, be interpreted as referring only to the testa-
tor signing in the presence of the witnesses since said
phrase immediately follows the words “he has signed
the same and every page thereof, on the spaces pro-
vided for his signature and on the left hand margin.”
What is then clearly lacking, in the final logical analy-
sis, is the statement that the witnesses signed the will
and every page thereof in the presence of the testator
and of one another.
It is our considered view that the absence of that
statement required by law is a fatal defect or imper-
fection which must necessarily result in the disallow-
ance of the will that is here sought to be admitted to
probate. Petitioners are correct in pointing out that
the aforestated defect in the attestation clause obvi-
ously cannot be characterized as merely involving the
form of the will or the language used therein which
would warrant the application of the substantial com-
pliance rule, as contemplated in the pertinent provi-
sion thereon in the Civil Code, to wit:
“Art. 809. In the absence of bad faith, for-
gery, or fraud, or undue and improper pressure
and influence, defects and imperfections in the
form of attestation or in the language used
therein shall not render the will invalid if it is
proved that the will was in fact executed and at-
tested in substantial compliance with all the re-

quirements of Article 805" (Italics supplied.)
While it may be true that the attestation clause
is indeed subscribed at the end thereof and at the left
margin of each page by the three attesting witnesses,
it certainly cannot be conclusively inferred therefrom
that the said witnesses affixed their respective signa-
tures in the presence of the testator and of each other
since, as petitioners correctly observed, the presence
of said signatures only establishes the fact that it was
indeed signed, but it does not prove that the attesting
witnesses did subscribe to the will in the presence of
the testator and of each other. The execution of a will
is supposed to be one act so that where the testator
and the witnesses sign on various days or occasions
and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.
We believe that the following comment of former
Justice J.B.L. Reyes regarding Article 809, wherein he
urged caution in the application of the substantial
compliance rule therein, is correct and should be ap-
plied in the case under consideration, as well as to fu-
ture cases with similar questions:
“x x x The rule must be limited to disre-
garding those defects that can be supplied by an
examination of the will itself: whether all the
pages are consecutively numbered; whether the
signatures appear in each and every page;
whether the subscribing witnesses are three or
the will was notarized. All these are facts that
the will itself can reveal, and defects or even
omissions concerning them in the attestation
clause can be safely disregarded. But the total
number of pages, and whether all persons re-
quired to sign did so in the presence of each other
must substantially appear in the attestation
clause, being the only check against perjury in the
probate proceedings." (Emphasis ours.)
3. We stress once more that under Article 809,
the defects or imperfections would not render a will
invalid should it be proved that the will was really
executed and attested In compliance with Article 805.

In this regard, however, the manner of proving the
due execution and attestation has been held to be
limited to merely an examination of the will itself
without resorting to evidence aliunde, whether oral or
written.
The foregoing considerations do not apply where
the attestation clause totally omits the fact that the
attesting witnesses signed each and every page of the
will in the presence of the testator and of each other.
In such a situation, the defects is not only in the form
or the language of the attestation clause but the total
absence of a specific element required by Article 805
to be specifically stated in the attestation clause of a
will. That is precisely the defect complained of in the
present case since there is no plausible way by which
we can read into the questioned attestation clause
any statement, or an implication thereof, that the at-
testing witnesses did actually bear witness to the
signing by the testator of the will and all its pages and
that said instrumental witnesses also signed the will
and every page thereof in the presence of the testator
and of one another.
Furthermore, the rule on substantial compliance
in Article 809 cannot be invoked or relied on by re-
spondents since it presupposes that the defects in the
attestation clause can be cured or supplied by the
text of the will or a consideration of matters apparent
therefrom which would provide the data not expressed
in the attestation clause or from which it may neces-
sarily be gleaned or clearly inferred that the acts not
stated in the omitted textual requirements were actu-
ally complied with in the execution of the will. In
other words, the defects must be remedied by intrin-
sic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts
required to have been performed by the attesting wit-
nesses can be supplied only by extrinsic evidence
thereof, since an overall appreciation of the contents
of the will yields no basis whatsoever from which such
facts may be plausibly deduced. What private respon-
dent insists on are the testimonies of his witnesses al-
leging that they say the compliance with such re-

quirements by the instrumental witnesses, oblivious
of the fact that he is thereby resorting to extrinsic evi-
dence to prove the same and would accordingly be do-
ing by indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on Au-
gust 30, 1950, there was a divergence of views as to
which manner of interpretation should be followed in
resolving issues centering on compliance with the le-
gal formalities required in the execution of wills. The
formal requirements were at that time embodied pri-
marily in Section 618 of Act No. 190, the Code of Civil
Procedure. Said decision was later amended by Act
No. 2645, but the provisions respecting said formali-
ties found in Act No. 190 and the amendment thereto
were practically reproduced and adopted in the Civil
Code.
One view advanced the liberal or substantial
compliance rule. This was first laid down in the case
of Abangan v. Abangan, where it was held that the ob-
ject of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a
way as to attain these primordial ends. Nonetheless,
it was also emphasized that one must not lose sight of
the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will,
hence when an interpretation already given assures
such ends, any other interpretation whatsoever that
adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator’s
last will, must be disregarded. The subsequent cases
of Avera vs. Garcia, Aldaba vs. Roque, Unson vs.
Abella, Pecson vs. Coronet, Fernandez vs. Vergel de
Dios, et al., and Nayve vs. Mojal, et aL all adhered to
this position.
The other view which advocated the rule that
statutes which prescribe the formalities that should
be observed in the execution of wills are mandatory in
nature and are to be strictly construed was followed
in the subsequent cases of In the Matter of the Estate

of Saguinsin, In re Will of Andrada Uy Coque vs. Sioca,
In re Estate of Neumark, and San vs. Quintana
Gumban vs. Gorecho, et al., provided the Court
with the occasion to clarify the seemingly conflicting
decisions in the aforementioned cases. In said case of
Gumban, the attestation clause had failed to state that
the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testa-
tor. The will in question was disallowed, with these
reasons therefor:
“In support of their argument on the as-
signment of error above-mentioned, appellants
rely on a series of cases of this court beginning
with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will
of Andrada ([1921], 42 Phil., 405), and In re Es-
tate of Neumark ([1923], 46 Phil., 841), and end-
ing with Sano vs. Quintana ([1925], 48 Phil.,
506), Appellee counters with the citation of a se-
ries of cases beginning with Abangan vs. Aban-
gan ([1919], 40 Phil., 476), continuing through
Aldaba vs. Roque ([1922], 43 Phil., 378), and
Fernandez vs. Vergel de Dios ([1924], 46 Phil.,
922), and culminating in Nayve vs. Mojal and
Aguilar ([1924], 47 Phil. 152). In its last analy-
sis, our task is to contrast and, if possible, con-
ciliate, the last two decisions cited by opposing
counsel, namely, those of Sano vs. Quintana,
supra, and Nayve vs. Mojal and Aguilar, supra
“In the case of Sano vs. Quintana, supra it
was decided that an attestation clause which
does not recite that the witnesses signed the will
and each and every page thereof on the left mar-
gin in the presence of the testator is defective,
and such a defect annuls the will. The case of
Uy Coque vs. Sioca, supra, was cited, but the
case of Nayve vs. Mojal and Aguilar, supra was
not mentioned. In contrast, is the decision in
Nayve vs. Mojal and Aguilar, supra wherein it
was held that the attestation clause must state
the fact that the testator and the witnesses re-

ciprocally saw the signing of the will, for such an
act cannot be proved by the mere exhibition of
the will, if it is not stated therein. It was also
held that the fact that the testator and the wit-
nesses signed each and every page of the will
can be proved also by the mere examination of
the signatures appearing on the document itself,
and the omission to state such evidence facts
does not invalidate the will.
“It is a habit of courts to reaffirm or distin-
guish previous cases; seldom do they admit in-
consistency in doctrine. Yet here, unless aided
by casuistry of the extreme type, it would be im-
possible to reconcile the Mojal and Quintana de-
cisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other,
we reverse.
“In resolving this puzzling question of au-
thority, three outstanding points may be men-
tioned. In the first place, the Mojal decision was
concurred in by only four members of the court,
less than a majority, with two strong dissenting
opinions; the Quintana decision was concurred
in by seven members of the court, a clear major-
ity, with one formal dissent. In the second place,
the Mojal decision was promulgated in Decem-
ber, 1924, while the Quintana decision was
promulgated in December 1925; the Quintana
decision was thus subsequent in point of time.
And in the third place, the Quintana decision is
believed more nearly to conform to the applica-
ble provisions of the law.
“The right to dispose of property by will is
governed entirely by statute. The law of the case
is here found in section 61 of the Code of Civil
Procedure, as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It
is in part provided in section 61, as amended
that ‘No will * * * shall be valid * * * unless * * *;
It is further provided in the same section that
The attestation shall state the number of sheets
or pages used, upon which the will is written,

and the fact that the testator signed the will and
every page thereof, or caused some other person
to write his name, under his express direction,
in the presence of three witnesses, and the latter
witnessed and signed the will and all pages
thereof in the presence of the testator and of
each other.’ Codal section 634 provides that “The
will shall be disallowed in either of the following
cases: 1. If not executed and attested as in this
Act provided.' The law not alone carefully makes
use of the imperative, but cautiously goes fur-
ther and makes use of the negative, to enforce
legislative intention. It is not within the province
of the courts to disregard the legislative purpose
so emphatically and clearly expressed.
“We adopt and reaffirm the decision in the case
of Sano vs. Quintana, supra, and, to the extent neces-
sary, modify the decision in the case of Nayve vs. Mo-
jal and Aguilar, supra.” (Emphasis in the original
text).
But after the Gumban clarificatory pronounce-
ment, there were decisions of the Court that once
more appeared to revive the seeming diversity of views
that was earlier threshed out therein. The cases of
Quinto vs. Morata, Rodriguez vs. Alcala, Echevarria vs.
Sarmiento, and Testate Estate of Toray went the way of
the ruling as restated in Gumban. But De Gala vs.
Gonzales, et al., Rey vs. Cartagena, De Ticson vs. De
Gorostiza, Sebastian vs. Panganiban, Rodriguez vs.
Yap, Grey vs. Fabia, Leynez vs. Leynez, Martir vs. Mar-
tir, Alcala vs. De Villa, Sabado vs. Fernandez, Mendoza
vs. Pilapil, and Lopez us. Liboro, veered away from the
strict interpretation rule and established a trend to-
ward an application of the liberal view.
The Code Commission, cognizant of such a con-
flicting welter of views and of the undeniable inclina-
tion towards a liberal construction, recommended the
codification of the substantial compliance rule, as it
believed this rule to be in accord with the modem
tendency to give a liberal approach to the interpreta-
tion of wills. Said rule thus became what is now Arti-
cle 809 of the Civil Code, with this explanation of the

Code Commission:
“The present law provides for only one form of
executing a will, and that is, in accordance with the
formalities prescribed by Section 618 of the Code of
Civil Procedure as amended by Act No. 2645. The Su-
preme Court of the Philippines had previously upheld
the strict compliance with the legal formalities and
had even said that the provisions of Section 618 of
the Code of Civil Procedure, as amended regarding the
contents of the attestation clause were mandatory,
and non-compliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions neces-
sarily restrained the freedom of the testator in dispos-
ing of his property.
“However, in recent years the Supreme Court
changed its attitude and has become more liberal in
the Interpretation of the formalities in the execution of
wills. This liberal view is enunciated in the cases of
Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939;
Leynez vs. Leynez, G.R. No. 46097, October 18, 1939;
Martir vs. Martxr, G.R. No. 46995, June 21, 1940; and
Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
“In the above mentioned decisions of our Su-
preme Court, it has practically gone back to the origi-
nal provisions of Section 618 of the Code of Civil Pro-
cedure before its amendment by Act No. 2645 in the
year 1916. To turn this attitude into a legislative dec-
laration and to attain the main objective of the pro-
posed Code in the liberalization of the manner of exe-
cuting wills, article 829 of the Project is recom-
mended, which reads:
‘Art. 829. In the absence of bad faith,
forgery, or fraud, or undue and improper pres-
sure and influence, defects and imperfections in
the form of attestation or In the language used
therein shall not render the will invalid it is
proved that the will was in fact executed and at-
tested in substantial compliance with all the re-
quirements of article 829.’
The so-called liberal rule, the Court said in Gil

vs. Marciano, “does not offer any puzzle or difficulty,
nor does it open the door to serious consequences.
The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not
allow evidence aliunde to fill a void in any part of the
document or supply missing details that should ap-
pear in the will itself. They only permit a probe into
the will, an exploration into its confines, to ascertain
its meaning or to determine the existence or absence
of the requisite formalities of law. This clear, sharp
limitation eliminates uncertainty and ought to banish
any fear of dire results."
It may thus be stated that the rule, as it now
stands, is that omission which can be supplied by an
examination of the will itself, without the need of re-
sorting to extrinsic evidence, will not be fatal and, cor-
respondingly, would not obstruct the allowance to
probate of the will being assailed. However, those
omissions which cannot be supplied except by evi-
dence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.
WHEREFORE, the petition is hereby GRANTED
and the impugned decision of respondent court is
hereby REVERSED and SET ASIDE. The court a quo
is accordingly directed to forthwith DISMISS its Spe-
cial Proceeding No. 3899-R (Petitioner for the Probate
of the Last Will and Testament of Mateo Caballero)
and to REVIVE Special Proceeding No. 3965-R (In the
Matter of the Intestate Estate of Mateo Caballero) as
an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED.
ARTICLE 810. A person may execute a holographic

will which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and
need not be witnessed. (678a, 668a)
I. In contrast to the requirements of an attested will,

those of a holographic will are the soul of simplicity. These re-
quirements are three: (1) completely handwritten by the testa-
tor; (2) dated by him; and (3) signed by him.
1. The simplicity of the holographic will is its obvi-
ous advantage—with it go other benefits: secrecy,
inexpensiveness, brevity. That very simplicity,
however, is also its obvious disadvantage: the
danger of forgery, the greater difficulty of deter-
mining testamentary capacity, the increased risk
of duress.
Apropos are the comments of Justice JBL Reyes:
“Holographic wills are peculiarly dangerous In
case of persons who have written very little. The valid-
ity of these wills depends exclusively on the authentic-
ity of the handwriting, and if writing standards are
not procurable, or not contemporaneous, the courts
are left to the mercy of the mendacity of witnesses.”
“It is questionable whether the recreation of the
holographic testament will prove wise. Its simplicitly
is an invitation to forgery, specially since its text may
be extremely short: ‘All to X’ or ‘the free part to X’,
plus a date and signature. Such short documents can
defy real experts in handwriting, specially in the ab-
sence of contemporaneous writing standards. If we
want to permit the testator to keep his wishes secret,
in order to avoid importunity, it can be done on the
basis of the closed will (testamento cerrado) of Arts.
706 to 715 of the Code of 1889 (called “mystic wills”
in Louisiana).”
II. The three requirements:

A. Entirely handwritten by the testator—If the testa-
tor executes only part of the will in his handwrit-
ing, and other parts of the will are not so written,
the entire will is void, because then the article
would be violated.
B. Dated by the testator:
Rozas vs. De Jesus

134 SCRA 245 (1985)
GUTIERREZ, JR., J.:
After the death of spouses Andres G. de Jesus

and Bibiana Roxas de Jesus, Special Proceeding No.
81503 entitled “In the Matter of the Intestate Estate of
Andres G. de Jesus and Bibiana Roxas de Jesus” was
filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas
was appointed administrator. After Letters of Admini-
stration had been granted to the petitioner, he deliv-
ered to the lower court a document purporting to be
the holographic Will of the deceased Bibiana de Je-
sus.
xxx xxx xxx
Petitioner Simeon R. Roxas testitied that after
his appointment as administrator, he found a note-
book belonging to the deceased Bibiana R. de Jesus
and that on pages 21, 22, 23 and 24 thereof, a letter-
wili addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R.
de Jesus was found. The will is dated “FEB./61” and
states: “This is my will which I want to be respected
altho it is not written by a lawyer, xxx”
The testimony of Simeon R. Roxas was corrobo-
rated by the testimonies of Pedro Roxas de Jesus and
Manuel Roxas de Jesus who likewise testified that the
letter dated “FEB./61” is the holographic Will of their
deceased mother Bibiana R. de Jesus. Both recog-
nized the handwriting of their mother and positively
identified her signature. They further testified that
their deceased mother understood English, the lan-
guage in which the holographic Will is written, and
that the date “FEB./61” was the date when said Will
was executed by their mother.
xxx xxx xxx

The only issue is whether or not the date

“FEB./61” appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compli-
ance with Article 810 of the Civil Code xxx.
xxx xxx xxx
The petitioners contend that while Article 685 of
the Spanish Civil Code and Article 688 of the Old Civil
Code require the testator to state in his holographic
Will the “year, month, and day of its execution,” the
present Civil Code omitted the phrase “Ano, mes y
dia” and simply requires the holographic Will should
be dated. The petitioners submit that the liberal con-
struction of the holographic Will should prevail.
Respondent Luz Henson on the other hand
submits that the purported holographic Will is void
for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month,
and day of its execution. The respondent contends
that Article 810 of the Civil Code was patterned after
Section 1277 of the California Code and Section 1588
of the Louisiana Code whose Supreme Courts had
consistently ruled that the required date includes the
year, month, and day, and that if any of these is
wanting, the holographic Will is invalid. The respon-
dent further contends that the petitioner cannot plead
liberal construction of Article 810 of the Civil Code be-
cause statutes prescribing the formalities to be ob-
served in the execution of holographic Wills are
strictly construed.
We agree with the petitioner.
This will not be the first time that this Court de-
part from a strict and literal application of the statu-
tory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the
purpose of which, in case of doubt is to prevent intes-
tacy.
xxx xxx xxx
xxx, a complete date is required to provide
against such contingencies as that of two competing
wills executed on the same day, or of a testator be-

coming insane on the day on which a Will was exe-
cuted [Velasco v. Lopez, 1 Phil. 720). There is no con-
tingency in this case.
xxx xxx xxx

As a general rule, the “date” in a holographic
Will should include the day, month, and year of its
execution. However, when as in the case at bar, there
is no appearance of fraud, bad faith, undue influence
and pressure and the authenticity of the Will is estab-
lished and the only issue is whether or not the date
“FEB./61” appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate
of the holographic Will should be allowed under the
principle of substantial compliance.
Date is defined in Black’s Law Dictionary as the “spec-

ification or mention, in a written instrument, of the time (day,
month and year) when it was made (executed).” Roxas states:
“As a general rule, the ‘date’ in a holographic will should in-
clude the day, month and year of its execution.”
The point can be raised whether the Roxas ruling was not
being far too liberal in allowing “FEB/61” as a sufficient date,
even granting that there was no fraud, bad faith, undue influ-
ence or duress.
A less controversial liberal interpretation by the Court of
this requirement is found in Labrador v. Court of Appeals :
Labrador vs. Court of Appeals

184 SCRA 170 (1990)
PARAS, J.\
The sole issue in this case is whether or not the

alleged holographic will of one Melecio Labrador is
dated, as provided for in Article 810 of the New Civil
Code.
The antecedent and relevant facts are as follows:

On June 10, 1972, Melecio Labrador died in the Mu-
nicipality of Iba, Province of Zambales, where he was
residing, leaving behind a parcel of land designated as
Lot No. 1916 under Original Certificate of Title No. P-
1652, and the following heirs, namely: Sagrado, En-
rica, Cristobal, Jesus, Gaudencio, Josefina, Juliana,
Hilaria and Jovita, all sumamed Labrador, and a hol-
gographic will.
On July 28, 1975, Sagrado Labrador (now de-
ceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a peti-
tion for the probate docketed as Special Proceeding
No. 922-1 of the alleged holographic will of the late
Melecio Labrador.
Subsequently, on September 30, 1975, Jesus
Labrador (now deceased but substituted by his heirs),
and Gaudencio Labrador filed an opposition to the pe-
tition on the ground that the will has been extin-
guished or revoked by implication of law, alleging
therein that on September 30, 1971, that is, before
Melecio’s death, for the consideration of Six Thousand
(P6.000) Pesos, testator Melecio executed a Deed of
Absolute Sale, selling, transferring and conveying in
favor of oppositors Jesus and Gaudencio Lot No. 1916
and that as a matter of fact, O.C.T. No. P-1652 had
been cancelled by T.C.T. No. T-21178. Earlier how-
ever, in 1973, Jesus Labrador sold said parcel of land
to Navat for only Five Thousand (P5.000) Pesos.
(Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975,
against his brothers, Gaudencio and Jesus, for the
annulment of said purported Deed of Absolute Sale
over a parcel of land which Sagrado allegedly had al-
ready acquired by devise from their father Melecio
Labrador under a holographic will executed on March
17, 1968, the complaint for annulment docketed as
Civil Case No. 934-1, being premised on the fact that
the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted
their respective evidence, the trial court rendered a
joint decision dated February 28, 1985, allowing the

probate of the holographic will and declaring null and
void the Deed of Absolute Sale. The court a quo had
also directed the respondents (the defendants in Civil
Case No. 934-1) to reimburse to the petitioners the
sum of P5,000.00 representing the redemption price
for the property paid by the plaintiff-petitioner
Sagrado with legal interest thereon from December
20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the

Court of Appeals, which on March 10, 1988 modified
said joint decision of the court a quo by denying the
allowance of the probate of the will for being undated
and reversing the order of reimbursement. Petitioners’
Motion for Reconsideration of the aforesaid decision
was denied by the Court of Appeals, in the resolution
of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors com-

mitted by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT AL-
LOWING AND APPROVING THE PROBATE OF THE
HOLOGRAPHIC WILL OF THE TESTATOR MELECIO
LABRADOR: and
xxx xxx xxx

The alleged undated holographic will written in
Ilocano translated into English, is quoted as follows:
“ENGLISH INTERPRETATION OF THE WILL OF

THE LATE MELECIO LABRADOR WRITTEN IN ILO-
CANO
BY ATTY. FIDENCIO L. FERNANDEZ
I— First Page
This is also where it appears in writing of
the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR
which is the fishpond located and known place
as Tagale.
And this place that is given as the share to

him, there is a measurement of more or less one
hectare, and the boundary at the South is the
property and assignment share of ENRICA LAB-
RADOR, also their sister, and the boundary in
the West is the sea, known as the SEA as it is,
and the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who like-
wise is also their brother. That because it is now
the time for me being now ninety three (93)
years, then I feel it is the right time for me to
partition the fishponds which were and had
been bought or acquired by us, meaning with
their two mothers, hence there shall be no dif-
ferences among themselves, those among broth-
ers and sisters, for it is I myself their father who
am making the apportionment and delivering to
each and everyone of them the said portion and
assignment so that there shall not be any cause
of troubles or differences among the brothers
and sisters.
II— Second Page

And this is the day in which we agreed that
we are making the partitioning and assigning
the respective assignment of the said fishpond,
and this being in the month of March, 17th day,
in the year 1968, and this decision and or in-
struction of mine is the matter to be followed.
And the one who made this writing is no other
than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am
making in writing and it is this that should be
followed and complied with in order that any dif-
ferences or troubles may be forestalled and
nothing will happen along these troubles among
my children, and that they will be in good rela-
tions among themselves, brothers and sisters;
And those improvements and fruits of the
land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by
name of Bayog, it is their right to get if they so
need, in order that there shall be nothing that

anyone f them shall complain against the other,
and against anyone of the brothers and sisters.
Ill—Third Page:
And that referring to the other places of
property, where the said property is located, the
same being the fruits of our earnings of the two
mothers of my children, there shall be equal
portion of each share among themselves, and or
to be benefitted with all those property, which
property we have been able to acquire.
That in order that there shall be basis of
the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits
of our labor which their two mothers, I am sign-
ing my signature below hereof, and that this is
what should be complied with, by all the broth-
ers and sisters, the children of their two mothers
- JULIANA QUINTERO PILARISA and CASIANA
AQUINO VILLANUEVA Your father who made
this writing (WILL), and he is, MELECIO LAB-
RADOR y RALUTIN." (p. 46, Rollo)
The petition, which principally alleges that
the holographich will is really dated, although
the date is not in its usual place, is impressed
with merit.
The will has been dated in the hand of the
testator himself in perfect compliance with Arti-
cle 810. It is worthy of note to quote the first
paragraph of the second page of the holographic
will, viz:
“And this is the day in which we agreed
that we are making the partitioning and assign-
ing the respective assignment of the said fish-
pond, and this being in the month of March,
17th day, in the year 1968, and this decision
and or instruction of mine is the matter to be
followed. A.nd the one who made this writing is
no other than MELECIO LABRADOR, their fa-
ther.” (italics supplied) (p. 46, Rollo)
The law does not specify a particular location

where the date should be placed in the will. The only
requirements are that the date be in the will itself and
executed in the hand of the testator. These require-
ments are present in the subject will.
Respondents claim that the date 17 March 1968
in the will was when the testator and his beneficiaries
entered into an agreement among themselves about
“the partitioning and assigning the respective assign-
ments of the said fishpond,” and was not the date of
execution of the holographic will; hence, the will is
more of an “agreement” between the testator and the
beneficiaries thereof to the prejudice of other compul-
sory heirs like the respondents. This was thus a fail-
ure to comply with Article 783 which defines a will as
“an act whereby a person is permitted, with the for-
malities prescribed by law, to control to a certain de-
gree the disposition of his estate, to take effect after
his death.”
Respondents are in error. The intention to show
17 March 1968 as the date of the execution of the will
is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not
an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a
will. The act of partitioning and the declaration that
such partitioning as the testator's insruction or deci-
sion to be followed reveal that Melecio Labrado was
fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary
act as a means to control the disposition of his estate.
xxx xxx xxx
“PREMISES CONSIDERED, the decision of the
Court of Appeals dated March 10, 1988 is hereby RE-
VERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate, xxx
SO ORDERED.
C. Signed by the testator:

1. Must the signature be at the will’s end (under-
standing by this at least the logical end)?—
Article 812 seems to imply this.
2. May the testator sign by means of a thumb-
print?—The article does not seem to permit
this: “entirely written, dated and signed by the
hand of the testator himself.”
ARTICLE 811. In the probate of a holographic will, it

shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such wit-
nesses shall be required. (691a)
In the absence of any competent witness referred to in
the preceding paragraph, and if the Court deem it neces-
sary, expert testimony may be resorted to.
I. This article applies only to post mortem probates: it
does not apply to ante mortem probates since in such cases the
testator himself files the petition and, obviously, will identify
the document himself.
II. Under the Rules of Court, the genuineness of a hand-
writing may be proved by the following:
(1) A witness who actually saw the person writing
the instrument:
(2) A witness familiar with such handwriting and
who can give his opinion thereon, such opin-
ion being an exception to the opinion rule;
(3) A comparison by the court of the questioned
handwriting and admitted genuine specimen
thereof: and
(4) Expert evidence. (Domingo vs. Domingo, 455
SCRA 230 [2005]; Rule 132, Sec. 22, Rules of
Court)
III. The three-witness provision in case of contested holo-
graphic wills is directory, not mandatory.
Azaola vs. Singson
109 Phil. 102 (1960)
REYES, J.B.L., J.:
xxx xxx xxx

Briefly speaking, the following facts were estab-
lished by the petitioner; that on September 9, 1957,
Fortunata S. Vda. de Yance died at 13 Luskot, Que-
zon City, known to be the last residence of said testa-
trix: that Francisco Azaola, petitioner herein for pro-
bate of the holographic will, submitted the said holo-
graphic will (Exh. C) whereby Maria Milagros Azaola
was made the sole heir as against the nephew of the
deceased Cesario Singson; that witness Francisco
Azaola testified that he saw the holographic will (Exh.
C) one month, more or less, before the death of the
testatrix, as the same was handed to him and his
wife; that the witness testified also that he recognized
all the signatures appearing in the holographic will
(Exh. C) as the handwriting of the testatrix and to re-
inforce said statement, witness presented the mort-
gage (Exh. E), the special power of attorney (Exh. F),
and the general power of attorney (Exh. F-l), besides
the deeds of sale (Exhs. G and G-l) including an affi-
davit (Exh. G-2), and that there were further exhibited
in court two residence certificates (Exhs. H and H-1)
to show the signatures of the testatrix, for comparison
purposes; that said witness, Azaola, testified that the
penmanship appearing in the aforesaid documentary
evidence is in the handwriting of the testatrix as well
as the signatures appearing therein are the signa-
tures of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic
will was handed to him by the testatrix, “apparently it
must have been written by her” (tsn., p. 11). However,
on page 16 on the same transcript of the stenographic
notes, when the same witness was asked by counsel if
he was familiar with the penmanship and handwriting
of the deceased Fortunata Vda. de Yance, he an-
swered positively in the affirmative and when he was
asked again whether the penmanship referred to in
the previous answer as appearing in the holographic
will (Exh. C) was hers (testatrix’), he answered, “I

would definitely say it is hers”; that it was also estab-
lished in the proceedings that the assessed value of
the property of the deceased in Luskot, Quezon City,
is in the amount of P7,000.00.”
The opposition to the probate was on the ground
that (1) the execution of the will was procured by un-
due and improper pressure and influence on the part
of the petitioner and his wife, and (2) that the testatrix
did not seriously intend the instrument to be her last
will, and that the same was actually written either on
the 5th or 6th day of August 1957 and not on Novem-
ber 20, 1956, as appears on the will.
The probate was denied on the ground that un-
der Article 811 of the Civil Code, the proponent must
present three witnesses who could declare that the
will and the signature are in the writing of the testa-
trix, the probate being contested; and because the
lone witness presented by the proponent “did not
prove sufficiently that the body of the will was written
in the handwriting of the testatrix.”
The proponent appealed, urging: first, that he
was not bound to produce more than one witness be-
cause the will’s authenticity was not questioned; and
second, that Article 811 does not mandatorily require
the production of three witnesses to identify the
handwriting and signature of a holographic will, even
if its authenticity should be denied by the adverse
party.
We agree with the appellant that since the au-
thenticity of the will was not contested, he was not re-
quired to produce more than one witness; but even if
the genuineness of the holographic will were con-
tested, we are of the opinion that Article 811 of our
present Civil Code can not be interpreted as to require
the compulsory presentation of three witnesses to
identify the handwriting of the testator, under penalty
of having the probate denied. Since no witness may
have been present at the execution of a holographic
will, none being required by law (Art. 810, New Civil
Code), it becomes obvious that the existence of wit-
nesses possessing the requisite qualifications is a

matter beyond the control of the proponent. For it is
not merely a question of finding and producing any
three witnesses; they must be witnesses “who know
the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law
does not so express) “that the will and the signature
are in the handwriting of the testator.” There may be
no available witness acquainted with the testator’s
hand; or even if so familiarized, the witnesses may be
unwilling to give a positive opinion. Compliance with
the rule of paragraph 1 of Article 811 may thus be-
come an impossibility. That is evidently the reason
why the second paragraph of Article 811 prescribes
that—
“in the absence of any competent witness
referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony
may be resorted to.”
As can be seen, the law foresees the possibility
that no qualified witness may be found (or what
amounts to the same thing, that no competent wit-
ness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to
supply the deficiency.
It may be true that the rule of this article (re-
quiring that three witnesses be presented if the will is
contested and only one if no contest is had) was de-
rived from the rule established for ordinary testa-
ments (cf. Cabang vs. Delfmado, 45 Phil. 291; Tolen-
tino vs. Francisco, 57 Phil. 742). But it can not be ig-
nored that the requirement can be considered manda-
tory only in the case of ordinary testaments, precisely
because the presence of at least three witnesses at the
execution of ordinary wills is made by law essential to
their validity (Art. 805). Where the will is holographic,
no witness need be present (Art. 810), and the rule
requiring production of three witnesses must be
deemed merely permissive if absurd results are to be
avoided.
Again, under Article 811, the resort to expert

evidence is conditioned by the words “if the Court
deem it necessary,” which reveal that what the law
deems essential is that the Court should be convinced
of the will’s authenticity. Where the prescribed num-
ber of witnesses is produced and the court is con-
vinced by their testimony that the will is genuine, it
may consider it unnecessary to call for expert evi-
dence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the
Court may still, and in fact it should, resort to hand-
writing experts. The duty of the court, in fine, is to
exhaust all available lines of inquiry, for the State is
as much interested as the proponent that the true in-
tention of the testator be carried into effect.
And because the law leaves it to the trial court to
decide if experts are still needed, no unfavourable in-
ference can be drawn from a party’s failure to offer
expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first para-
graph of Article 811 of the Civil Code is merely direc-
tory and is not mandatory.
Considering, however, that this is the first occa-
sion in which this Court has been called upon to con-
strue the import of said article, the interest of justice
would be better served, in our opinion, by giving the
parties ample opportunity to adduce additional evi-
dence, including expert witnesses, should the Court
deem them necessary.
In view of the foregoing, the decision appealed
from is set aside, and the records ordered remanded
to the Court of origin, with instructions to hold a new
trial in conformity with this opinion. But evidence al-
ready on record shall not be retaken. No costs.
The Azaola statement seems to have been re-
versed in a more recent case.
Codoy vs. Calugay

312 SCRA 333 [1999]
PARDO, J:
Before us is a petition for review on certiorari of

the decision of the Court of Appeals and its resolution
denying reconsideration, ruling:
“Upon the unrebutted testimony of appel-
lant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators
holographic will has been established and the
handwriting and signature therein (exhibit S) are
hers, enough to probate said will. Reversal of the
judgment appealed from and the probate of the
holographic will in question be called for. The
rule is that after plaintiff has completed presen-
tation of his evidence and the defendant files a
motion for judgment on demurrer to evidence on
the ground that upon the facts and the law
plaintiff has shown no right to relief, if the mo-
tion is granted and the order to dismissal is re-
versed on appeal, the movant loses his right to
present evidence in his behalf (Sec. 1 Rule 35
Revised Rules of Court). Judgment may, there-
fore, be rendered for appellant in the instant
case.
“Wherefore, the order appealed from is
REVERSED and judgment rendered allowing the
probate of the holographic will of the testator
Matilde Seno Vda. de Ramonal.” [Decision, Court
of Appeals Records, pp. 83-93.]
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Jose-
phine Salcedo and Eufemia Patigas, devisees and
legatees of the holographic will of the deceased
Matilde Seno Vda. de Ramonal, filed with the Regional
Trial Court, Misamis Oriental, Branch 18, a petition
for probate of the holographic will of the deceased,
who died on January 16, 1990.
xxx xxx xxx

On June 28, 1990, Eugenia Ramonal Codoy and

Manuel Ramonal filed an opposition to the petition for
probate, alleging that the holographic will was a for-
gery and that the same is even illegible, x x x .
x x x . And assuming that the holographic will is
in the handwriting of the deceased, it was procured by
undue and improper pressure and influence on the
part of the beneficiaries, or through fraud and trick-
ery.
Respondents presented six (6) witnesses and
various documentary evidence. Petitioners instead of
presenting their evidence, filed a demurrer to evi-
dence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seno Vda. de
Ramonal.
On November 26, 1990, the lower Court issued
an order, the dispositive portion of which reads:
“WHEREFORE, in view of the foregoing
consideration, the Demurrer to Evidence having
being well taken, same is granted, and the peti-
tion for probate of the document (Exhibit “S”) on
the purported Holographic Will of the late
Matilde Seno Vda. de Ramonal, is denied for in-
sufficiency of evidence and lack of merits.”
On December 12, 1990, respondents filed a no-
tice of appeal, and in support of their appeal, the re-
spondents once again reiterated the testimony of the
following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4)
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6)
Evangeline Calugay.
To have a clear understanding of the testimonies
of the witnesses, we recite an account of their testi-
monies.
Augusto Neri, Clerk of Court, Court of First In-
stance of Misamis Oriental, where the special pro-
ceedings for the probate of the holographic will of the
deceased was filed. He produced and identified the re-
cords of the case. The documents presented bear the
signature of the deceased, Matilde Seno Vda. de

Ramonal, for the purpose of laying the basis for com-
parison of the handwriting of the testatrix, with the
writing treated or admitted as genuine by the party
against whom the evidence is offered.
Generosa Senon, ■ election registrar of Cagayan
de Oro, was presented to produce and identify the
voter’s affidavit of the decedent. However, the voters’
affidavit was not produced for the same was already
destroyed and no longer available.
Matilde Ramonal Binanay, testified that the de-
ceased Matilde Seno Vda. de Ramonal was her aunt,
and that after the death of Matilde’s husband, the lat-
ter lived with her in her parent’s house for eleven (11)
years, from 1958 to 1969. During those eleven (11)
years of close association with the deceased, she ac-
quired familiarity with her signature and handwriting
as she used to accompany her (deceased Matilde Seno
Vda. de Ramonal) in collecting rentals from her vari-
ous tenants of commercial buildings, and the de-
ceased always issued receipts. In addition to this, she
(witness Matilde Binanay) assisted the deceased in
posting the records of the accounts, and carried per-
sonal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that
at the time of the death of Matilde Vda. de Ramonal,
she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and
signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will,
were that of the deceased.
Fiscal Rodolfo Waga testified that before he was
appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and
documents signed by the deceased in connection with
the intestate proceedings of her late husband, as a re-
sult of which he is familiar with the handwriting of the
latter. He testified that the signature appearing in the
holographic will was similar to that of the deceased,
Matilde Seno Vda. de Ramonal, but he can not be
sure.
The fifth witness presented was Mrs. Teresita

Vedad, an employee of the Department of Environ-
ment and Natural Resources, Region. She testified
that she processed the application of the deceased for
pasture permit and was familiar with the signature of
the deceased, since the deceased signed documents in
her presence, when the latter was applying for pas-
ture permit.
Finally, Evangeline Calugay, one of the respon-
dents, testified that she had lived with the deceased
since birth, and was in fact adopted by the latter.
That after a long period of time she became familiar
with the signature of the deceased. She testified that
the signature appearing in the holographic will is the
true and genuine signature of Matilde Seno Vda. de
Ramonal.
xxx xxx xxx
On October 9, 1995, the Court of Appeals, ren-
dered decision ruling that the appeal was meritorious.
Citing the decision in the case of Azaola vs. Singson,
109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a
recognized authority In civil law, the Court of Appeals
held:
“x x x even if the genuineness of the holo-
graphic will were contested, we are of the opin-
ion that Article 811 of our present civil code can
not be interpreted as to require the compulsory
presentation of three witnesses to identify the
handwriting of the testator, under penalty of
having the probate denied. Since no witness
may have been present at the execution of the
holographic will, none being required by law (art.
810, new civil code), it becomes obvious that the
existence of witnesses possessing the requisite
qualifications is a matter beyond the control of
the proponent. For it is not merely a question of
finding and producing any three witnesses: they
must be witnesses “who know the handwriting
and signature of the testator” and who can de-
clare (truthfully, of course, even if the law does
not express) “that the will and the signature are
in the handwriting of the testator.” There may be

no available witness acquainted with the testa-
tor’s hand; or even if so familiarized, the witness
may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of arti-
cle 811 may thus become an impossibility. That
is evidently the reason why the second para-
graph of article 811 prescribes that —
“in the absence of any competent witness
referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony
may be resorted to.”
“As can be seen, the law foresees the pos-
sibility that no qualified witness may be found
(or what amounts to the same thing, that no
competent witness may be willing to testify to
the authenticity of the will), and provides for re-
sort to expert evidence to supply the deficiency.
“It may be true that the rule of this article
(requiring that three witnesses be presented if
the will is contested and only one if no contest is
had) was derived from the rule established for
ordinary testaments (CF Cabang vs. Delfinado,
45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the require-
ment can be considered mandatory only in case
of ordinary testaments, precisely because the
presence of at least three witnesses at the execu-
tion of ordinary wills is made by law essential to
their validity (Art. 805). Where the will is holo-
graphic, no witness need be present (Art. 10),
and the rule requiring production of three wit-
nesses must be deemed merely permissive if ab-
surd results are to be avoided.
“Again, under Art. 811, the resort to expert
evidence is conditioned by the words “if the
court deem it necessary”, which reveal that what
the law deems essential is that the court should
be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and
the court is convinced by their testimony that
the will is genuine, it may consider it unneces-

sary to call for expert evidence. On the other
hand, if no competent witness is available, or
none of those produced is convincing, the court
may still, and in fact it should resort to hand-
writing experts. The duty of the court, in fine, is
to exhaust all available lines of inquiry, for the
state is as much interested as the proponent
that the true intention of the testator be carried
into effect.
“Paraphrasing Azaola vs. Singson, even if
the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory presen-
tation of three witnesses to identify the hand-
writing of the testator, under penalty of the hav-
ing the probate denied. No witness need be pre-
sent in the execution of the holographic will. And
the rule requiring the production of three wit-
nesses is merely permissive. What the law
deems essential is that the court is convinced of
the authenticity of the will. Its duty is to exhaust
all available lines of inquiry, for the state is as
much interested in the proponent that the true
intention of the testator be carried into effect.
And because the law leaves it to the trial court to
decide if experts are still needed, no unfavorable
inference can be drawn from a party’s failure to
offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of
the lay witnesses. [Ibid]
According to the Court of Appeals, Evangeline
Calugay, Matilde Ramonal Binanay and other wit-
nesses definitely and in no uncertain terms testified
that the handwriting and signature in the holographic
will were those of the testator herself.
Thus, upon the unrebutted testimony of appel-
lant Evangeline Calugay and witness Matilde Ramonal
Binanay, the Court of Appeals sustained the authen-
ticity of the holographic will and the handwriting and
signature therein, and allowed the will to probate.
Hence, this petition.

The petitioners raise the following issues:
(1) Whether or not the ruling of the case
of Azaola vs. Singson, 109 Phil. 102, relied upon
by the respondent Court of Appeals, was appli-
cable to the case.
(2) Whether or not the Court of Appeals
erred in holding that private respondents had
been able to present credible evidence to prove
that the date, text, and signature on the holo-
graphic will were written entirely in the hand of
the testatrix.
(3) Whether or not the Court of Appeals
erred in not analyzing the signatures in the
holographic will of Matilde Seno Vda. de
Ramonal.
In this petition, the petitioners ask whether the
provisions of Article 811 of the Civil Code are permis-
sive or mandatory. The article provides, as a require-
ment for the probate of a contested holographic will,
that at least three witnesses explicitly declare that the
signature in the will is the genuine signature of the
testator.
We are convinced, based on the language used,
that Article 811 of the Civil Code is mandatory. The
word “shall” connotes a mandatory order. We have
ruled that “shall" in a statute commonly denotes an
imperative obligation and is inconsistent with the idea
of discretion and that the presumption is that the
word “shall,” when used in a statute is mandatory.”
[Pioneer Texturing Corporation vs. National Labor Re-
lations Commission, 280 SCRA 806 (1997); see also
Director of Lands vs. Court of Appeals, 276 SCRA 276
(1997); Cecilleville Realty and Service Corporation vs.
Court of Appeals, 278 SCRA 819 (1997); Baranda vs.
Gustilo, 165 SCRA 757 (1988)]
Laws are enacted to achieve a goal intended and
to guide against an evil or mischief that aims to pre-
vent. In the case at bar, the goal to achieve is to give
effect to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous indi-

viduals who for their benefit will employ means to de-
feat the wishes of the testator.
xxx xxx xxx
It will be noted that not all the witnesses pre-
sented by the respondents testified explicitly that they
were familiar with the handwriting of the testator. In
the case of Augusto Neri, clerk of court, Court of First
Instance, Misamis Oriental, he merely identified the
record of Special Proceedings No. 427 before said
court. He was not presented to declare explicitly that
the signature appearing in the holographic was that
of the deceased.
Generosa E. Senon, the election registrar of Ca-
gayan de Oro City, was presented to identify the sig-
nature of the deceased in the voters’ affidavit, which
was not even produced as it was no longer available.
xxx xxx xxx
What Ms. Binanay saw were pre-prepared re-
ceipts and letters of the deceased, which she either
mailed or gave to her tenants. She did not declare
that she saw the deceased sign a document or write a
note.
Further, during the cross-examination, the
counsel for petitioners elicited the fact that the will
was not found in the personal belongings of the de-
ceased but was in the possession of Ms. Binanay.
xxx xxx xxx
In her testimony it was also evident that Ms. Bi-
nanay keptthe fact about thewill from petitioners,
the legally adopted children of the deceased. Such ac-
tions put in issue her motive of keeping the will a se-
cret to petitioners and revealing it only after the death
of Matilde Seno Vda. de Ramonal.
xxx xxx xxx
Evangeline Calugay declared that the holo-
graphic will was written, dated and signed in the
handwriting of the testator, x x x .
xxx xxx xxx

So, the only reason that Evangeline can give as
to why she was familiar with the handwriting of the
deceased was because she lived with her since birth.
She never declared that she saw the deceased write a
note or sign a document.
The former lawyer of the deceased, Fiscal Waga,
testified that:
xxx xxx xxx
Q. So you are not definite that this is the
signature of Matilde vda de Ramonal. You are
merely supposing that it seems to be her signa-
ture because it is similar to the signature of the
project of partition which you have made?
A. That is true. 30 [TSN, September 6,
1990, pp. 83-84.]
From the testimonies of these witnesses, the
Court of Appeals allowed the will to probate and dis-
regard the requirement of three witnesses in case of
contested holographic will, citing the decision in
Azaola vs. Singson, ruling that the requirement is
merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals, we said
that “the object of the solemnities surrounding the
execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testa-
ments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be inter-
preted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose
sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a
will."
However, we cannot eliminate the possibility of a
false document being adjudged as the will of the tes-
tator, which is why if the holographic will is contested,
that law requires three witnesses to declare that the
will was in the handwriting of the deceased.
xxx xxx xxx

A visual examination of the holographic will con-

vince us that the strokes are different when compared
with other documents written by the testator. The
signature of the testator in some of the disposition is
not readable. There were uneven strokes, retracing
and erasures on the will.
Comparing the signature in the holographic will
dated August 30, 1978, and the signatures in several
documents such as the application letter for pasture
permit dated December 30, 1980, and a letter dated
June 16, 1978, the strokes are different. In the let-
ters, there are continuous flows of the strokes, evi-
dencing that there is no hesitation in writing unlike
that of the holographic will. We, therefore, cannot be
certain that the holographic will was in the handwrit-
ing by the deceased.
IN VIEW WHEREOF, the decision appealed from
is SET ASIDE. The records are ordered remanded to
the court of origin with instructions to allow petition-
ers to adduce evidence in support of their opposition
to the probate of the holographic will of the deceased
Matilde Seno Vda. de Ramonal.
xxx xxx xxx
The question may be asked. Does Codoy reverse Azaola?

The following points should be considered:
1. The Codoy ruling was not based on there being
less than three witnesses (there were in fact six).
2. Neither did the ruling state that since there were
less than three witnesses (apparently only the tes-
timonies of Binanay and Calugay were considered
at length), even if their testimony was convincing,
the probate must be denied because of the man-
datory import of 811. [The testimony of these two
witnesses was found to be indecisive].
3. The ruling in fact said that visual examination of
the will reveals that the strokes are different com-
pared with standard documents.
4. Therefore, the basis of the ruling was that evi-

dence for authenticity was not adequate, not fail-
ure to present three witnesses. Which, if analyzed
closely is in accord with Azaola, which stated that
the decisive factor is not quantity, but quality.
If one goes beneath the surface, Codoy, rather than re-
versing Azaola, may have affirmed it.
IV. In the probate of a holographic will, the document it-
self must be produced. Therefore, a lost holographic will cannot
be probated.
Gan vs. Yap
104 Phil. 509 (1958)
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto

Yap died of heart failure in the University of Santo
Tomas, leaving properties in Pulilan, Bulacan, and in
the City of Manila.
On March 17, 1952, Fausto E. Gan initiated
these proceedings xxx with a petition for the probate
of a holographic will allegedly executed by the de-
ceased, xxx
xxx xxx xxx
Opposing the petition, her surviving husband,
Ildefonso Yap asserted that the deceased had not left
any will, nor executed any testament during her life-
time.
After hearing the parties and considering their
evidence, the Hon. Ramon R. San Jose, Judge, re-
fused to probate the alleged will. A seventy-page mo-
tion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried
to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo
Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Fe-

licidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She con-
fided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with
Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied
it could be done without any witness, provided the
document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in trans-
mitting the information, and on the strength of it, in
the morning of November 5, 1951, in her residence at
Juan Luna Street, Manila, Felicidad wrote, signed and
dated a holographic will substantially of the tenor
above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to
read it. In the afternoon of that day, Felicidad was vis-
ited by a distant relative, Primitivo Reyes, and she al-
lowed him to read the will in the presence of Felina
Esguerra, who again read it.
Nine days later, he had other visitors: Socorro
Olarte, a cousin, and Rosario Gan Jimenez, a niece.
To these she showed the will, again in the presence of
Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was con-
fined at the U.S.T. Hospital for her last illness, she en-
trusted the said will, which was contained in a purse,
to Felina Esguerra. But a few hours later, Ildefonso
Yap, her husband, asked Felina for the purse; and be-
ing afraid of him by reason of his well-known violent
temper, she delivered it to him. Thereafter, in the
same day, Ildefonso Yap returned the purse to Felina,
only to demand it the next day shortly before the
death of Felicidad. Again, Felina handed it to him but
not before she had taken the purse to the toilet,
opened it and read the will for the last time.
xxx xxx xxx
The trial judge refused to credit the petitioner’s
evidence for several reasons, the most important of
which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her
husband would not know It, it is strange she exe-

cuted it in the presence of Felina Esguerra, knowing
as she did that witnesses were unnecessary; (b) in the
absence of a showing that Felina was a confidant of
the decedent it is hard to believe that the latter would
have allowed the former to see and read the will sev-
eral times; (c) it is improbable that the decedent would
have permitted Primitivo Reyes, Rosario Gan Jimenez
and Socorro Olarte to read her will, when she pre-
cisely wanted its contents to remain a secret during
her lifetime; (d) it is also improbable that her purpose
being to conceal the will from her husband she would
carry it around, even to the hospital, in her purse
which could for one reason or another be opened by
her husband; (e) if it is true that the husband de-
manded the purse from Felina in the U.S.T. Hospital
and that the will was there, it is hard to believe that
he returned it without destroying the will, the theory
of the petitioner being precisely that the will was exe-
cuted behind his back for fear he will destroy it.
In the face of these improbabilities, the trial
judge had to accept the oppositor’s evidence that Feli-
cidad did not and could not have executed such holo-
graphic will.
xxx xxx xxx
The Spanish Civil Code permitted the execution
of holographic wills along with other forms. The Code
of Civil Procedure (Act 190) approved August 7, 1901,
adopted only one form, thereby repealing other forms,
including holographic wills.
The New Civil Code effective in 1950 revived
holographic wills in its Arts. 810-814. “A person may
execute a holographic will which must be entirely
written, dated and signed by the hand of the testator
himself. It is subject to no other form and may be
made in or out of the Philippines, and need not be
witnessed.”
This is indeed a radical departure from the form
and solemnities provided for wills under Act 190,
which for fifty years (from 1901 to 1950) required wills
to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to

attest to the number of sheets used and to the fact
that the testator signed in their presence and that
they signed in the presence of the testator and of each
other.
xxx xxx xxx
Authenticity and due execution is the dominant
requirement to be fulfilled when such will is submit-
ted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would
be sufficient, if there is no opposition (Sec. 5, Rule
77). If there is, the three must testify, if available.
(Cabang vs. Delfinado, 34 Phil. 291; Tolentino vs.
Francisco, 57 Phil. 742). From the testimony of such
witnesses (and of other additional witnesses) the court
may form its opinion as to the genuineness and au-
thenticity of the testament, and the circumstances of
its due execution.
Now, in the matter of holographic wills, no such
guaranties of truth and veracity are demanded, since
as stated, they need no witnesses; provided, however,
that they are “entirely written, dated and signed by
the hand of the testator himself.” The law, it is rea-
sonable to suppose, regards the document itself as
material proof of authenticity, and as its own safe-
guard, since it could at any time, be demonstrated to
be—or not to be—in the hands of the testator himself.
“In the probate of a holographic will" says the New
Civil Code, “it shall be necessary that at least one wit-
ness who knows the handwriting and signature of the
testator explicitly declare that the will and the signa-
ture are in the handwriting of the testator. If the will
is contested, at least three such witnesses shall be re-
quired. In the absence of any such witnesses, (famil-
iar with decedent’s handwriting) and if the court deem
it necessary, expert testimony may be resorted to.”
The witnesses so presented do not need to have
seen the execution of the holographic will. They may
be mistaken in their opinion of the handwriting, or
they may deliberately lie in affirming it is in the testa-
tor’s hand. However, the oppositor may present other
witnesses who also know the testator’s handwriting,

or some expert witnesses, who after comparing the
will with other writings or letters of the deceased, have
come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory tes-
timony may use its own visual sense, and decide in
the face of the document, whether the will submitted
to it has indeed been written by the testator.
Obviously, when the will itself is not submitted,
these means of opposition and of assessing the evi-
dence, are not available. And then, the only guaranty
of authenticity3 —the testator’s handwriting—has
disappeared.
Therefore, the question presents itself, may a
holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator? How
can the oppositor prove that such document was not
in the testator’s handwriting? His witnesses who
know testator’s handwriting have not examined it. His
experts cannot testify, because there is no way to
compare the alleged testament with other documents
admittedly, or proven to be, in the testator’s hand.
The oppositor will, therefore, be caught between the
upper millstone of his lack of knowledge of the will or
the form thereof, and the nether millstone of his in-
ability to prove its falsity. Again the proponent’s wit-
nesses may be honest and truthful; but they may
have been shown a faked document, and having no
interest to check the authenticity thereof have taken
no pains to examine and compare. Or they may be
perjurers boldly testifying, in the knowledge that none
could convict them of perjury, because no one could
prove that they have not “been shown” a document
which they believed was in the handwriting of the de-
ceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be
tested by exhibiting to them other writings sufficiently
3 "Una forma de testamento" (holographic will) “en la que toda la garan-
tia consiste en la letra del testador." (Scaevola, Codigo Civil, Tomo 12, p. 348)
similar to those written by the deceased; but what

witness or lawyer would not foresee such a move and
prepare for it? His knowledge of the handwriting es-
tablished, the witness (or witnesses) could simply
stick to his statement: he has seen and read a docu-
ment which he believed was in the deceased’s hand-
writing. And the court and the oppositor would practi-
cally be at the mercy of such witness (or witnesses)
not only as to the execution, but also as to the con-
tents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940,
allow proof (and probate) of a lost or destroyed will by
secondary evidence—the testimony of witnesses, in
lieu of the original document. Yet such Rules could
not have contemplated holographic wills which could
not then be validly made here. (See also Sec. 46, Rule
123; Art. 830—New Civil Code.)
Could Rule 77 be extended, by analogy, to holo-
graphic wills?
Spanish commentators agree that one of the
greatest objections to the holographic will Is that it
may be lost or stolen—an implied admission that
such loss or theft renders it useless.
This must be so, because the Civil Code requires
it to be protocoled and presented to the judge, (Art.
689) who shall subscribe it and require its identity to
be established by the three witnesses who depose that
they have no reasonable doubt that the will was writ-
ten by the testator (Art. 691). And if the judge consid-
ers that the identity of the will be proven he shall or-
der that It be filed (Art. 693). All these, imply presen-
tation of the will itself. Art. 692 bears the same impli-
cation, to a greater degree. It requires that the surviv-
ing spouse and the legitimate ascendants and de-
scendants be summoned so that they may make “any
statement they may desire to submit with respect to
the authenticity of the will." As it Is universally admit-
ted that the holographic will is usually done by the
testator and by himself alone, to prevent others from
knowing either its execution or its contents, the above
Article 692 could not have the idea of simply permit-
ting such relatives to state whether they know of the

will, but whether in the face of the document itself they
think the testator wrote it. Obviously, this they can’t
do unless the will itself is presented to the Court and
to them.
Undoubtedly, the intention of the law is to give
the near relatives the choice of either complying with
the will if they think it authentic, or to oppose it, if
they think it spurious. Such purpose is frustrated
when the document is not presented for their exami-
nation. If it be argued that such choice is not essen-
tial, because anyway the relatives may oppose, the
answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to
comply with the will, if genuine, a right which they
should not be denied by withholding inspection
thereof from them.
We find confirmation of these ideas—about ex-
hibition of the document itself—in the decision of the
Supreme Court of Spain of June 5, 1925, which de-
nied protocolization or probate to a document con-
taining testamentary dispositions in the handwriting
of the deceased, but apparently mutilated, the signa-
ture and some words having been tom from it. Even in
the face of allegations and testimonial evidence (which
was controverted), ascribing the mutilation to the op-
ponents of the will. The aforesaid tribunal declared
that, in accordance with the provision of the Civil
Code (Spanish) the will itself, whole and unmutilated,
must be presented; otherwise, it shall produce no ef-
fect.
xxx xxx xxx
This holding aligns with the ideas on holo-
graphic wills in the Fuero Juzgo, admittedly the basis
of the Spanish Civil Code provisions on the matter.
“PRECEDENTES LEGALES—Fuero Juzgo,
libro segundo, titulo V, ley 15—E depues que los
herederos e sus fijos ovieren esta manda, fasta
xxx annos muestrenla al obispo de la tierra, o al
juez fasta VI meses y el obispo o el juez tomen
otros tales tres escritos, que fuesen fechos por
su mano daquel que fizo la manda; e por aquel-

los escriptos, si semjara la letra de la manda,
sea confirmada la manda. E depues que todo
esto fuere connoscido, el obispo o el juez, o otras
testimonlos confirmen el escripto de la manda
otra vez, y en esta manera vala la manda.” (Art.
689, Scaevola—Codigo Civil.)
(According to the Fuero xxx the will itself must
be compared with specimens of the testator’s hand-
writing.)
All of which can only mean: the courts will not
distribute the property of the deceased in accordance
with his holographic will, unless they are shown his
handwriting and signature.
Parenthetically, it may be added that even the
French Civil Law considers the loss of the holographic
will to be fatal. (Planiol y Ripert, Derecho Civil Fran-
ces, traducion por Diaz Cruz, 1946, Tomo V, page
555).
Taking all the above circumstances together, we
reach the conclusion that the execution and the con-
tents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
and/or read such will.8
xxx xxx xxx
At this point, before proceeding further, it might
be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evi-
dence when lost or destroyed. The difference lies in
the nature of the wills. In the first, the only guarantee
of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental wit-
nesses (and of the notary, now). The loss of the holo-
graphic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing wit-
nesses are available to authenticate.
8 Perhaps it may be proved by a photographic or photostatic copy. Even
a mimeographed or carbon copy; or by other similar means, if any, whereby

the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court.
xxx xxx xxx

In the case of ordinary wills, it is quite hard to
convince three witnesses (four with the notary) delib-
erately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular
day, the likelihood that they would be called by the
testator, their Intimacy with the testator, etc. And if
they were intimates or trusted friends of the testator
they are not likely to lend themselves to any fraudu-
lent scheme to distort his wishes. Last but not the
least, they can not receive anything on account of the
will.
Whereas in the case of holographic wills, if oral
testimony were admissible only one man could engi-
neer the whole fraud this way: after making clever or
passable imitation of the handwriting and signature of
the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery: and the
latter, having no interest, could easily fall for it, and
in court they would in all good faith affirm its genu-
ineness and authenticity. The will having been lost—
the forger may have purposely destroyed it in an “ac-
cident”—the oppositors have no way to expose the
trick and the error, because the document itself is not
at hand. And considering that the holographic will
may consist of two or three pages, and only one of
them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may
go undetected.
If testimonial evidence of holographic wills be
permitted, one more objectionable feature—feasibility
of forgery—would be added to the several objections to
this kind of wills listed by Castan, Sanchez Roman
and Valverde and other well-known Spanish Com-
mentators and teachers of Civil Law.
One more fundamental difference: in the case
of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of
the testator of subscribing the will; whereas in the
case of a lost holographic will, the witness would tes-
tify as to their opinion of the handwriting which they
allegedly saw, an opinion which can not be tested In

court, nor directly contradicted by the oppositors, be-
cause the handwriting itself is not at hand.
Turning now to the evidence presented by the
petitioner, we find ourselves sharing the trial judge’s
disbelief. In addition to the dubious circumstances
described in the appealed decision, we find it hard to
believe that the deceased should show her will pre-
cisely to relatives who had received nothing from it:
Socorro Olarte and Primitivo Reyes. These could pes-
ter her into amending her will to give them a share, or
threaten to reveal its execution to her husband Ilde-
fonso Yap. And this leads to another point: if she
wanted so much to conceal the will from her hus-
band, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance,
her husband’s trip to Davao, a few days after the al-
leged execution of the will.
In fine, even if oral testimony were admissible to
establish and probate a lost holographic will, we think
the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that
it fails to measure up to that 'clear and distinct’ proof
required by Rule 77, sec. 6.
Wherefore, the rejection of the alleged will must
be sustained.
Exception to the Gan ruling:

Rodelas vs. Aranza
119 SCRA 16 (1982)
RELOVA, J.:
xxx xxx xxx

As found by the Court of Appeals:
xxx On January 11, 1977, appellant filed a peti-
tion with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B. Bonilla
and the issuance of letters testamentary to her favor.
The petition xxx was opposed by the appellees Am-
paxo Bonilla, Wilferine Bonilla Treyes, Expedita

Bonilla Frias and Ephraim Bonilla on the following
grounds:
xxx xxx xxx
“(3) The alleged holographic will itself, and not
an alleged copy thereof, must be produced, otherwise
it would produce no effect, as held in Gan vs. Yap,
104 Phil. 509; and
“(4) The deceased did not leave any will, holo-
graphic or otherwise, executed and attested as re-
quired by law.
“The appellees likewise moved for the consolida-
tion of the case with another case (Sp. Proc. No.
8275). Their motion was granted by the court in an
order dated April 4, 1977.
“On November 13, 1978, following the consolida-
tion of the cases, the appellees moved again to dis-
miss the petition for the probate of the will. They ar-
gued that:
xxx xxx xxx
“(2) Lost or destroyed holographic wills cannot
be proved by secondary evidence unlike ordinary
wills.
“Upon opposition of the appellant, the motion to
dismiss was denied by the court in its order of Febru-
ary 23, 1979.
“The appellees then filed a motion for reconsid-
eration xxx. On July 23, 1979, the court set aside its
order of February 23, 1979 and dismissed the petition
for the probate of the will of Ricardo B. Bonilla. The
court said:
‘. . . It is our considered opinion that once
the original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
‘In the case of Gan vs. Yap, 104 Phil. 509,
522, the Supreme Court held that ‘in the matter
of holographic wills the law, it is reasonable to
suppose, regards the document itself as the ma-
170 JOTTINGS AND JURISPRUDENCE Art. SI I
terial proof of authenticity of said wills.

xxx xxx xxx
Appellant’s motion for reconsideration was de-
nied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant’s
petition is contrary to law and well-settled jurispru-
dence.
xxx xxx xxx
The only question here is whether a holographic
will which was lost or cannot be found can be proved
by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is
the allowance of the will by the court after its due exe-
cution has been proved. The probate may be uncon-
tested or not. If uncontested, at least one identifying
witness is required and, if no witness is available, ex-
perts may be resorted to. If contested, at least three
identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no
other copy is available, the will can not be probated
because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there
be a comparison between sample handwritten state-
ments of the testator and the handwritten will. But a
photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made
with the standard writings of the testator. In the case
of Gan vs. Yap, 104 Phil. 509, the Court ruled that
“the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testi-
mony of witnesses who have seen and/or read such
will. The will itself must be presented; otherwise, it
shall produce no effect. The law regards the document
itself as material proof of authenticity.” But in Foonote
8 of said decision, it says that “Perhaps it may be
proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the hand-
writing of the deceased may be exhibited and tested
before the probate court.” Evidently, the photostatic
or xerox copy of the lost or destroyed holographic will
may be admitted because then the authenticity of the

handwriting of the deceased can be determined by the
probate court.
ARTICLE 812. In holograhic wills, the dispositions of

the testator written below his signature must be dated and
signed by him in order to make them valid as testamentary
dispositions, (n)
ARTICLE 813. When a number of dispositions appear-
ing in a holographic will are signed without being dated,
and the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the
time of prior dispositions, (n)
I. 1. Formal requirement for additional dispositions in a
holographic will: signature and date.
2. When there are several additional dispositions:
a) signature and date, or
b) each additional disposition signed and un-
dated, but the last disposition signed and
dated
Notes: 1) If, in the case of several additional dispositions
the additional ones before the last are dated
but not signed, only the last will be valid, pro-
vided the last is signed and dated.
2) Supposing there are several additional dispo-
sitions, and the additional ones before the last
are neither signed nor dated, but the last is
both signed and dated, what becomes of the
intermediate ones? It seems a distinction here
will have to be made whether they were made
on one occasion (in which case the signature
and date under the last additional disposition
validate all) or on different occasions (in which
case the intermediate additions are void). This
distinction, though theoretically valid, is in
practice almost worthless, because we are
speaking here of holographic wills and the cir-
cumstances of their execution are very often

extremely difficult of proof.
ARTICLE 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature, (n)
I. Full signature does not necessarily mean the testator’s
full name; it rather means his usual and customary signature.
II. Effect of non-compliance with the article—The change
(insertion, cancellation, etc.) is simply considered not made.
“The will is not thereby invalidated as a whole, but at most only
as regards the particular words erased, corrected or inserted.”
[Kalaw v. Relova, 132 SCRA 237 [1984], citing Velasco v. Lopez,
1 Phil. 720 [1903]), unless the portion involved is an essential
part of the will, such as the date.
III. Effect of non-compliance—One instance:
Kalaw vs. Relova

132 SCRA 237 (1984)
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent

GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a peti-
tion before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holo-
graphic Will executed on December 24, 1968.
xxx xxx xxx

The holographic Will, as first written, named
ROSA K. Kalaw, a sister of testatrix as her sole heir.
Hence, on November 10, 1971 petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that
the holographic Will contained alterations, correc-
tions, and insertions without the proper authentica-
tion by the full signature of the testatrix as required
by Article 814 of the Civil Code xxx.
[NOTE: Mr. Justice Teehankee, in his concur-

ring opinion, explains that there were two alterations:
the first, crossing out Rosa’s name as sole heir and

Gregorio’s name written above it; and the second,
crossing out Rosa’s name as sole executrix and
Gregorio’s name written above it. The first alteration
is not even Initialed. The second is initialed.]
ROSA's position was that the holographic Will,
as first written, should be given effect and probated so
that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in
an Order, dated September 3, 1973, reading in part:
xxx xxx xxx
“The Court finds, therefore, that the provision of
Article 814 of the Civil Code is applicable to Exhibit
‘C.’ Finding the insertions, alterations and/or addi-
tions in Exhibit ‘C’ not to be authenticated by the full
signature of the testatrix Natividad K. Kalaw, the
Court will deny the admission to probate of Exhibit
'C.'
xxx xxx xxx
xxx, ROSA filed this Petition for Review on Cer-
tiorari on the sole legal question of whether or not the
original unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack
of authentication by full signature of the testatrix,
should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, correc-
tions, and interlineations made by the testator in a
holographic Will have not been noted under his signa-
ture, xxx the Will is not thereby invalidated as a
whole, but at most only as respects the particular
words erased, corrected or interlined.10 Manresa gave
an identical commentary when he said “la omision de
la salvedad no anula el testamento, segun la regia de
jurisprudencia establecida en la sentencla de 4 de
Abril de 1895.”11
10 Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Su-
preme Court of Spain of April 4, 1895.

11 Commentaries al Codigo Civil Espanol, Quinta Edicion, Tomo 5, Lib.
Ill—Tit. III-Cap. I-Art. 688; pag. 483.

However, when as in this case, the holographic

Will in dispute had only one substantial provision,
which was altered by substituting the original heir
with another, but which alteration did not carry the
requisite of full authentication by the full signature of
the testator, the effect must be that the entire Will is
voided or revoked for the simple reason that nothing
remains in the Will after that which could remain
valid. To state that the Will as first written should be
given efficacy is to disregard the seeming change of
mind of the testatrix. But that change of mind can
neither be given effect because she failed to authenti-
cate it in the manner required by law by affixing her
full signature.
The ruling In Velasco, supra, must be held con-
fined to such insertions, cancellations, erasures or al-
terations in a holographic Will, which affect only the
efficacy of the altered words themselves but the es-
sence and validity of the Will Itself. As it is, with the
erasure, cancellations and alterations made by testa-
trix herein, her real intention cannot be determined
with certitude.
xxx xxx xxx
xxx Decision of respondent Judge, dated Sep-
tember 3, 1973, is hereby affirmed in toto. No costs.”
Comments on Kalaw:
1) The holding that the insertion of the name of Gre-
gorio cannot be given effect for not having been
done in accordance with the requirement of Arti-
cle 814 (i.e., authentication with the testator’s full
signature) is beyond question.
2) Why, however, was the cancellation of the original
testamentary institution given effect, as it was in
this decision? That cancellation was not done in
the way mandated by the article, because it was
not properly authenticated.
To say, as the decision does, that “to state that the Will as
first written should be given efficacy is to disregard the seeming
change of mind of the testatrix,” is no argument, because it is

not enough that the testator manifest his intent—he must mani-
fest it in a manner required by law. Certainly, making cancella-
tions in holographic wills without authenticating such cancella-
tions with the testator’s full signature is not the proper way of
manifesting one’s testamentary intent. Should it be given ef-
fect?
ARTICLE 815. When a Filipino is in a foreign country,

he is authorized to make a will in any of the forms estab-
lished by the law of the country in which he may be. Such
will may be probated in the Philippines, (n)
ARTICLE 816. The will of an alien who is abroad pro-

duces effect in the Philippines if made with the formalities
prescribed by the law of the place in which he resides, or ac-
cording to the formalities observed in his country, or in con-
formity with those which this Code prescribes, (n)
ARTICLE 817. A will made in the Philippines by a

citizen or subject of another country, which is executed in
accordance with the law of the country of which he is a
citizen or subject, and which might be proved and allowed
by the law of his own country, shall have the same effect as
if executed according to the laws of the Philippines, (n)
I. These three articles govern rules of formal validity in

the following instances:
1. a Filipino abroad (Article 815)
2. an alien abroad (Article 816)
3. an alien in the Philippines (Article 817)
Not covered is a situation of a Filipino executing a will in

the Philippines.
II. Actually, by combining these three articles, Articles 1512
12 ART. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the Philip-
pines, even though living abroad. (9a)
and 17,13 and by applying analogy, one can outline the follow-
ing identical rules for Filipinos and aliens:
Every testator, whether Filipino or alien, wherever he may
be, has five choices as to what law to follow for the form of his
will:
1) the law of his citizenship (Articles 816-817 for
aliens: applying to Filipinos by analogy, Article
15)
2) the law of the place of execution (Article 17)
3) the law of his domicile (Article 816 for aliens
abroad; applying to aliens in the Philippines
and to Filipinos by analogy)
4) the law of his residence [same basis as (3)].
5) Philippine law [Articles 816-817 for aliens; Ar-
ticle 15, applying to Filipinos by analogy],
ARTICLE 818. Two or more persons cannot make a
will jointly, or in the same instrument, either for their re-
ciprocal benefit or for the benefit of a third person. (669)
I. Joint will means—one document which constitutes the
wills of two or more individuals. If there are separate docu-
ments, each serving as one independent will (even if they are
written on the same sheet), they are not “the joint wills” prohib-
ited by this article.
II. Joint wills are void.
III. Several reasons have been cited for this declared pub-
lic policy against joint wills:
13 ART. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in which they
are executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall
not be rendered ineffective by laws or judgments promulgated, or by determi-
nations or conventions agreed upon in a foreign country. (11a)
1) The limitation on the modes of revocation (i.e.,

one of the testators would not be able to de-
stroy the document without also revoking it as
the will of the other testator, or in any event,
as to the latter, the problem of unauthorized
destruction would come in);
2) the diminution of testamentary secrecy;
3) the danger of undue influence;
4) the danger of one testator killing the other.
The last two points were mentioned by the Supreme Court

in Dacanay v. FLorendo, 87 Phil. 324 (1950);
“The provision of Article 669 of the Civil Code

prohibiting the execution of a will by two or more per-
sons conjointly or in the same instrument either for
their reciprocal benefit or for the benefit of a third
person, is not unwise and Is not against public policy.
The reason for this provision, especially as regards
husband and wife, is that when a will is made jointly
or in the same instrument, the spouse who is more
aggressive, stronger in will or character and dominant
is liable to dictate the terms of the will for his or her
own benefit or for that of the third persons whom he
or she desires to favor. And, where the will is not only
joint but reciprocal, either one of the spouses who
may happen to be unscrupulous, wicked, faithless or
desperate, knowing as he or she does the terms of the
will whereby the whole property of the spouses both
conjugal and paraphernal goes to the survivor, may
be tempted to kill or dispose of the other.” (at p. 327)
IV. In some jurisdictions, the prohibition admits of excep-

tions, as in the German Civil Code (BGB):
“Article 2265. A joint will may be made
only by spouses.”14
14
2265 . [Errichtung durch Ehegatten) Ein gemeinschaftliches Testament
kann nur von Ehegatten errichtet werden. "
ARTICLE 819. Wills, prohibited by the preceding arti-

cle, executed by Filipinos in a foreign country shall not be
valid in the Philippines, even though authorized by the laws
of the country where they may have been executed. (733a)
I. Outline on joint wills:
A. executed by Filipinos in the Philippines (Article
818)—void.
B. executed by Filipinos abroad (Article 819)—void,
even if authorized by the law of the place of exe-
cution (an exception to the permissive provisions
of Articles 1715 and 815).
C. executed by aliens abroad—governed by Article
816.
D. executed by aliens in the Philippines—controver-
ted: One view—void, because of public policy; An-
other view—Article 817 governs
E. executed by a Filipino and an alien—as to the Fili-
pino, always void; as to the alien, letter C or D
would apply.
SUBSECTION 4—WITNESSES TO WILLS
ARTICLE 820. Any person of sound mind and of the

age of eighteen years or more, and not blind, deaf or dumb,
and able to read and write, may be a witness to the execu-
tion of a will mentioned in article 805 of this Code, (n)
ARTICLE 821. The following are disqualified from be-
ing witnesses to a will:
15 ART. 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the countiy in which they
are executed.
When the acts referred to are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the solemnities
established by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall
not be rendered ineffective by laws or judgments promulgated, or by determi-
nations or conventions agreed upon in a foreign country. (11a)
(1) Any person not domiciled in the Philippines;

(2) Those who have been convicted of falsification of a
document, perjury or false testimony, (n)
I. Six qualifications of witnesses:
1. of sound mind;
2. at least 18 years of age;
3. not blind, deaf, or dumb;
4. able to read and write;
5. domiciled in the Philippines;
6. must not have been convicted of falsification of a
document, perjury, or false testimony.
Re: 1.5: There is some controversy whether that re-

quirement is applicable in cases of wills
executed abroad. The controversy is too
sterile and picayune to merit discussion:
the Gordian knot is simply cut by the tes-
tator resorting to one of two very easy solu-
tions in case there is no such witness read-
ily available—either execute a holographic
will or elect to follow the law of the place of
execution (Articles 17 and 815).
II. Competence and credibility distinguished.
Gonzales vs. Court of Appeals
90 SCRA 183 (1979)
GUERRERO, J.:
xxx xxx xxx

There is no dispute in the records that the late
Isabel Andres Gabriel died as a widow and without Is-
sue in the municipality of Navotas, province of Rizal,
her place of residence, on June 7, 1961 at the age of
eighty-five (85), having been bom in 1876. It is like-
wise not controverted that herein private respondent
Lutgarda Santiago and petitioner Rizalina Gabriel
Gonzales are nieces of the deceased, and that private

respondent, with her husband and children, lived
with the deceased at the latter’s residence prior and
up to the time of her death.
The will submitted for probate, Exhibit “F,”
which is typewritten and in Tagalog, appears to have
been executed in Manila on the 15th day of April,
1961, or barely two (2) months prior to the death of
Isabel Gabriel. It consists of five (5) pages, including
the pages whereon the attestation clause and the ac-
knowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at
the end of the will on page four and at the left margin
of all the pages. The attestation clause, which is found
on page four, reads as follows:
xxx xxx xxx
xxx, under the heading “Pangalan,” are written
the signatures of Matilde D. Orobia, Celso D. Gimpaya
and Maria R. Gimpaya, and opposite the same, under
the heading "Tirahan,” are their respective places of
residence, x x x . Their signatures also appear on the
left margin of all the other pages. The will is paged by
typewritten words x x x .
xxx xxx xxx
To herein private respondent Lutgarda Santiago,
who was described in the will by the testatrix as “ak-
ing mahal na pamangkin na aking pinalaki, inalagaan
at minahal na katulad ng isang tunay na anak” and
named as universal heir and executor, were be-
queathed all properties and estate, real or personal,
already acquired, or to be acquired, in her (testatrix’s)
name, after satisfying the expenses, debts and lega-
cies xxx.
The petition was opposed by Rizalina Gabriel
Gonzales, herein petitioner, x x x .
xxx xxx xxx
After trial, the court a quo rendered judgment,
the summary and dispositive portions of which read:
xxx xxx xxx

3. That sufficient and abundant evidence

warrants conclusively the fact that the purported will
of the deceased was not executed and attested as re-
quired by law;
xxx xxx xxx
From this judgment of disallowance, Lutgarda
Santiago appealed to respondent Court, hence, the
only issue decided on appeal was whether or not the
will in question was executed and attested as required
by law. The Court of Appeals, upon consideration of
the evidence adduced by both parties, rendered the
decision now under review, holding that the will in
question was signed and executed by the deceased
Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gim-
paya and Maria Gimpaya, signing and witnessing the
document in the presence of the deceased and of each
other as required by law, hence allowed probate.
xxx xxx xxx
In her petition before this Court, oppositor Ri-
zalina Gabriel Gonzales contends that respondent
Court abused its discretion and/or acted without or
in excess of its jurisdiction in reversing the findings of
fact and conclusions of the trial court.
xxx xxx xxx
Petitioner, in her first assignment, contends that
the respondent Court of Appeals erred in holding that
the document, Exhibit “F,” was executed and attested
as required by law when there was absolutely no
proof that the three instrumental witnesses were
credible witnesses. She argues that the requirement
in Article 806, Civil Code, that the witnesses must be
credible is an absolute requirement which must be
complied with before an alleged last will and testa-
ment may be admitted to probate and that to be a
credible witness, there must be evidence on record
that the witness has a good standing in his commu-
nity, or that he is honest and upright, or reputed to
be trustworthy and reliable. According to petitioner,
unless the qualifications of the witness are first estab-
182 JOTTINGS AND JURISPRUDENCE A*1-821
lished, his testimony may not be favorably consid-

ered. Petitioner contends that the term “credible" is
not synonymous with “competent” for a witness may
be competent under Articles 820 and 821 of the Civil
Code and still not be credible as required by Article
805 of the same Code. It is further urged that the
term “credible” as used in the Civil Code should re-
ceive the same settled and well-known meaning it has
under the Naturalization Law, the latter being a kin-
dred legislation with the Civil Code provisions on wills
with respect to the qualifications of witnesses.
We find no merit to petitioner’s first assignment
of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills
while Article 821 sets forth the disqualification from
being a witness to a will.
xxx xxx xxx
Under the law, there is no mandatory require-
ment that the witness testify initially or at any time
during the trial as to his good standing in the commu-
nity, his reputation for trustworthiness and reliable-
ness, his honesty and uprightness in order that his tes-
timony may be believed and accepted by the trial court.
It is enough that the qualifications enumerated in Arti-
cle 820 of the Civil Code are complied with, such that
the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his ap-
pearance, testimony, or competently proved otherwise,
as well as the fact that he is not blind, deaf, dumb and
that he is able to read and write to the satisfaction of
the Court, and that he has none of the disqualifications
under Article 821 of the Civil Code. We reject peti-
tioner’s contention that it must first be established in
the record the good standing of the witness in the
community, his reputation for trustworthiness and re-
liableness, his honesty and uprightness, because such
attributes are presumed of the witness unless the con-
trary is proved otherwise by the opposing party.
We also reject as without merit petitioner’s con-
tention that the term “credible" as used in the Civil
Code should be given the same meaning It has under

the Naturalization Law where the law is mandatory
that the petition for naturalization must be supported
by two character witnesses who must prove their good
standing in the community, reputation for trustwor-
thiness and reliableness, their honesty and upright-
ness. The two witnesses in a petition for naturaliza-
tion are character witnesses in that being citizens of
the Philippines, they personally know the petitioner to
be a resident of the Philippines for the period of time
required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in
their opinion all the qualifications necessary to be-
come a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization
Law (Section 7, Commonwealth Act No. 473 as
amended).
In probate proceedings, the instrumental wit-
nesses are not character witnesses for they merely at-
test the execution of a will or testament and affirm the
formalities attendant to said execution. And We agree
with the respondent that the rulings laid down in the
cases cited by petitioner concerning character wit-
nesses in naturalization proceedings are not applica-
ble to instrumental witnesses to wills executed under
the Civil Code of the Philippines.
In the case at bar, the finding that each and eve-
ryone of the three instrumental witnesses, namely
Matilde Orobia, Celso Gimpaya and Maria Gimpaya,
are competent and credible is satisfactorily supported
by the evidence as found by the respondent Court of
Appeals, which findings of fact this Tribunal is bound
to accept and rely upon. Moreover, petitioner has not
pointed to any disqualification of any of the said wit-
nesses, much less has it been shown that anyone of
them is below 18 years of age, of unsound mind, deaf,
or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil
Code, every will, other than a holographic will, must
be subscribed at the end thereof by the testator him-
self or by the testator’s name written by some other
person in his presence, and by his express direction,
and attested and subscribed by three or more credible

witnesses in the presence of the testator and of one
another. While the petitioner submits that Articles
820 and 821 of the New Civil Code speak of the com-
petency of a witness due to his qualifications under
the second Article, whereas Article 805 requires the
attestation of three or more credible witnesses, peti-
tioner concludes that the term credible requires some-
thing more than just being competent and, therefore,
a witness in addition to being competent under Arti-
cles 820 and 821 must also be a credible witness un-
der Article 805.
Petitioner cites American authorities that com-
petency and credibility of a witness are not synony-
mous terms and one may be a competent witness and
yet not a credible one. She exacerbates (sic) that there
is no evidence on record to show that the instrumen-
tal witnesses are credible in themselves, that is, that
they are of good standing in the community since one
was a family driver by profession and the second the
wife of the driver, a housekeeper. It is true that Celso
Gimpaya was the driver of the testatrix and his wife
Maria Gimpaya, merely a housekeeper, and that
Matilde Orobia was a piano teacher to a grandchild of
the testatrix. But the relation of employer and em-
ployee much less the humble social or financial posi-
tion of a person do not disqualify him to be a compe-
tent testamentary witness. (Molo-Pekson and Perez-
Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Es-
tate of Raymundo, Off. Gaz., March 18, 1941, p. 788).
Private respondent maintains that the qualifica-
tions of the three or more credible witnesses men-
tioned in Article 805 of the Civil Code are those men-
tioned in Article 820 which says “may be a witness to
the execution of a will mentioned in Article 805 of this
Code,” and cites authorities that the word “credible”
insofar as witnesses to a will are concerned simply
means “competent.” Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held that
“Granting that a will was duly executed and that it
was in existence at the time of, and not revoked be-
fore, the death of the testator, still the provisions of
the lost will must be clearly and distinctly proved by

at least two credible witnesses. ‘Credible witnesses’
mean competent witnesses and not those who testify to
facts from or upon hearsay.’’ (Italics supplied)
In Molo-Pekson and Perez-Nable vs. Tanchuco, et
al., 100 Phil. 344, the Supreme Court held that “Sec-
tion 620 of the same Code of Civil Procedure provides
that any person of sound mind, and of the age of
eighteen years or more, and not blind, deaf, or dumb
and able to read and write, may be a witness to the
execution of a will. This same provision is reproduced
in our New Civil Code of 1950, under Art. 820. The re-
lation of employer and employee, or being a relative to
the beneficiary in a will, does not disqualify one to be
a witness to a will. The main qualifications of a wit-
ness in the attestation of wills, if other qualifications
as to age, mental capacity and literacy are present, is
that said witness must be credible, that is to say, his
testimony may be entitled to credence. There is a long
line of authorities on this point, x x x .
xxx xxx xxx
In the strict sense, the competency of a person to
be an instrumental witness to a will is determined by
the statute, that is Arts. 820 and 821, Civil Code,
whereas his credibility depends on the appreciation of
his testimony and arises from the belief and conclusion
of the Court that said witness is telling the truth. Thus,
in the case of Vda. de Arroyo v. El Bealerio del Santts-
simo Rosario de Molo, No. L-22005, May 3, 1968, the
Supreme Court held and rule that: “Competency as a
witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he
says. Trial courts may allow a person to testify as a
witness upon a given matter because he is competent,
but may thereafter decide whether to believe or not to
believe his testimony.”
In fine, We state the rule that the instrumental
witnesses in order to be competent must be shown to
have the qualifications under Article 820 of the Civil
Code and none of the disqualifications under Article
821 and for their testimony to be credible, that is wor-
thy of belief and entitled to credence, it is not manda-

tory that evidence be first established on record that
the witnesses have a good standing in the community
or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to
be such unless the contrary is established otherwise.
In other words, the instrumental witnesses must be
competent and their testimonies must be credible be-
fore the court allows the probate of the will they have
attested. We, therefore, reject petitioner’s position that
it was fatal for respondent not to have introduced
prior and independent proof of the fact that the wit-
nesses were “credible witnesses,” that is, that they
have a good standing in the community and reputed
to be trustworthy and reliable.
ARTICLE 822. If the witnesses attesting the execu-

tion of a will are competent at the time of attesting, their
becoming subsequently incompetent shall not prevent the
allowance of the will, (n)
As in the case of testamentary capacity (Article 801) the
time of the execution of the will is the only relevant temporal
criterion in the determination of the competence of the wit-
nesses.
ARTICLE 823. If a person attests to the execution of
a will, to whom or to whose spouse, or parent, or child, a
devise or legacy is given by such will, such devise or legacy
shall, so far only as concerns such person, or spouse, or
parent, or child of such person, or any one claiming under
such person or spouse, or parent, or child, be void, unless
there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a
witness as if such devise or legacy had not been made or
given, (n)
I. 1. This article is misplaced here, since this is con-
cerned not with capacity to be a witness, but with capacity to
succeed. This provision should be in Chapter 4, Section 2 of
this Title (Succession), entitled “Capacity to Succeed by Will or
by Intestacy,” and should be correlated with Article 1027(4),

which covers the same matter.
2. This article lays down a disqualification of a witness
to succeed to a legacy or devise when there are only three wit-
nesses. The competence of the person as a witness is not af-
fected. Assuming all other requisites for formal validity being
present, therefore, the will is perfectly valid but the witness (or
the relatives specified in this article) cannot inherit.
II. Application of article not limited to devisees and lega-
tees—Although the provisions of the article seem to limit its
application to devisees and legatees, the disqualification will
extend as well to heirs. The intent of the law is to cover all tes-
tamentary institutions. The reason for the infelicitous wording
of the article, as pointed out by Senator Tolentino, is (as in sev-
eral other instances in the Code) injudicious borrowing from
foreign law (in this case, from American law through the Code
of Civil Procedure). Note that this disqualification is reiterated
in Article 1027(4) and there it is not limited to devises and lega-
cies.
III. The disqualification applies only to the testamentary
disposition made in favor of the witness or the specified rela-
tives. If the party is also entitled to a legitime or an intestate
share, that portion is not affected by the party’s witnessing the
will.
Example: X executes an attested will, witnessed by three
instrumental witnesses: A, B, and C. B is X’s son. One of the
provisions of the will is a legacy of P10,000.00 to B. The legacy
is void, on account of Article 823, but, needless to say, B’s le-
gitime is unaffected.
IV. Quarendum: Supposing that there are four witnesses,
each a recipient of a testamentary disposition, are the dis-
positions to them valid or void?
ARTICLE 824. A mere charge on the estate of the tes-
tator for the payment of debts due at the time of the testa-
tor’s death does not prevent his creditors from being com-
petent witnesses to his will, (n)
Obviously, because this is not a testamentary disposition.

SUBSECTION 5.—CODICILS AND INCORPORATION
BY REFERENCE
ARTICLE 825. A codicil is a supplement or addition

to a will, made after the execution of a will and annexed to
be taken as a part thereof, by which any disposition made
in the original will is explained, added to, or altered, (n)
ARTICLE 826. In order that a codicil may be effec-

tive, it shall be executed as in the case of a will, (n)
I. Codicil and subsequent will distinguished—The dis-

tinction between a codicil and a subsequent will is that the
former, by definition, explains, adds to, or alters a disposition in
a prior will; while a subsequent will makes independent and
distinct dispositions.
The distinction, however, is purely academic because Arti-
cle 826 requires the codicil to be in the form of a will anyway.
II. Must the codicil conform to the form of the will to
which it refers?—The law does not require this. Thus, an at-
tested will may have a holographic codicil; a holographic will
may have an attested codicil. Needless to say, of course, the
forms of the will and the codicil may concur.
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 wit-

nesses on each and every page, except in case of volumi-
nous books of account or inventories, (n)
I. This article can refer only to such documents as inven-
tories, books of accounts, documents of title, and papers of
similar nature; the document should, under no circumstances,
make testamentary dispositions, for then the formal require-
ments for wills would be circumvented.
II. Can holographic wills incorporate documents by refer-
ence?—The text of the article suggests a negative answer. Para-
graph 4 of the article requires the signatures of the testator and
the witnesses on every page of the incorporated document (ex-
cept voluminous annexes). It seems, therefore, that only at-
tested wills can incorporate documents by reference, since only
attested wills are witnessed (unless, of course, the testator exe-
cutes a holographic will and, superfluously, has it witnessed).
SUBSECTION 6.—REVOCATION OF WILLS
AND TESTAMENTARY DISPOSITIONS
ARTICLE 828. A will may be revoked by the testator
at any time before his death. Any waiver or restriction of
this right is void. (737a)
A will is essentially revocable or ambulatory. This charac-
teristic cannot be waived even by the testator. A will is revoca-
ble at the testator’s pleasure during his lifetime. There is no
such thing as an irrevocable will.
This characteristic of a will is consistent with the princi-
ple, enunciated in Article 777, that successional rights vest
only upon death.
ARTICLE 829. A revocation done outside the Phi-
lippines, by a person who does not have his domicile in this
country, is valid when it is done according to the law of the
place where the will was made, or according to the law of
the place in which the testator had his domicile at the time;
and if the revocation takes place in this country, when it is
in accordance with the provisions of this Code, (n)
Rules for revocation:

A. If revocation made in the Philippines—Follow Philip-
pine Law
B. If revocation made outside the Philippines —
1. If testator not domiciled in the Philippines:
a) Follow the law of the place where the will was
made, or
b) Follow the law of the place where the testator
was domiciled at the time of the revocation.
2. If testator domiciled in the Philippines [This situa-
tion is not governed by Article 829]:
a) Follow Philippine law (consistently with the
domiciliary principle followed by this article),
or
b) Follow the law of the place of revocation (con-
sistently with the principle of lex loci celebra-
tionis in Article 17), or
c) Follow the law of the place where the will was
made (by analogy with the rules on revocation
where the testator is a non-Philippine domi-
ciliary, supra).
(It is curious that the law here departs from the national-
ity theory and adopts the domiciliary theory.)
ARTICLE 830. No will shall be revoked except in the

following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the
will with intention of revoking it, by the testator himself,
or by some other person in his presence, and by his express
direction. If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the testator,
the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution,

and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of
Court, (n)
I. This article enumerates the modes of revoking a will
under Philippine law:
1. by operation of law;
2. by a subsequent will or codicil;
3. by physical destruction.
1. By operation of law—the revocation may be total or
partial.
Examples of revocation by implication or operation of law:
1. preterition (Article 854);
2. legal separation (Article 63, par. 4, Family Code);
3. unworthiness to succeed (Article 1032);
4. transformation, alienation, or loss of the object
devised or bequeathed (Article 957);
5. judicial demand of a credit given as a legacy (Arti-
cle 936).
2. By a subsequent will or codicil—The revocation may
also be total or partial.
Requisites for a valid revocation by a subsequent instru-

ment:
(1) the subsequent instrument must comply with
the formal requirements of a will; (Moio v. Molo,
90 Phil. 37 citing Samson v. Naval, 41 Phil. 838.)
(2) the testator must possess testamentary capacity;
(3) the subsequent instrument must either contain
an express revocatory clause or be incompatible
with the prior will [Article 831] (revocation by a
subsequent instrument may be express or im-
plied).
Like any other will, such wills must be probated in order

to take effect. [Molo v. Molo, 90 Phil. 37.)
3. By physical destruction—The law gives four ways of
destroying: (1) burning, (2) tearing, (3) cancelling, (4)
obliterating. These should cover the gamut of des-
truction.
a) The physical destruction may be done by the
testator personally or by another person acting
in his presence and by his express direction.
(Note: There is a discrepancy in par. (3). The
first clause requires destruction by the agent in his
presence and by his express direction: The following
sentence considers the destruction by the agent un-
authorized if done “without the express direction of
the testator.” Supposing it is done with the testator’s
express direction but not in his presence? [Vide
Maloto us. CA, 168 SCRA. 451, infra]).
Effect of unauthorized destruction—Will may
still be proved as lost or destroyed (Article 830, par.
3, 2nd sent.; Rule 76, Sec. 6, Rules of Court). How-
ever, this is possible only if the will is attested; if the
will is holographic, it cannot be probated if it is lost,
even if the loss or destruction was unauthorized
(Gan v. Yap, supra, Article 811), unless a copy sur-
vives (Rodelas v. Aranza, supra, ibid.).
b) Elements of valid revocation by physical de-
struction:
1. corpus—the physical destruction itself;
there must be evidence of physical de-
struction
2. animus—a) capacity and intent to revoke
b) the testator must have completed eve-
rything he intended to do.
Corpus and animus must concur. One without the other
will not produce revocation.
Testate Estate of Adriana Maloto vs. Court of Appeals
158 SCRA 451 (1988)
SARMIENTO, J.:
xxx xxx xxx

On October 20, 1963, Adriana Maloto died leav-
ing as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio Maloto, and
the private respondents Panfilo Maloto and Felino
Maloto. Believing that the deceased did not leave be-
hind a last will and testament, these four heirs com-
menced on November 4, 1963 an intestate proceeding
for the settlement of their aunt's estate. The case was
instituted in the then Court of First Instance of Iloilo
and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be
exact on February 1, 1964, the parties—Aldina, Con-
stancio, Panfilo, and Felino—executed an agreement
of extrajudicial settlement of Adriana’s estate. The
agreement provided for the division of the estate into
four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to
the trial court for approval which the court did on
March 21, 1964. That should have signalled the end
of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967,
Atty. Sulpicio Palma, a former associate of Adriana’s
counsel, the late Atty. Eliseo Hervas, discovered a
document entitled “KATAPUSAN NGA PAGBULUT-AN
(Testamento),” dated January 3, 1940, and purporting
to be the last will and testament of Adriana. Atty.
Palma claimed to have found the testament, the origi-
nal copy, while he was going through some materials
inside the cabinet drawer formerly used by Atty. Her-
vas. The document was submitted to the office of the
Clerk of Court of First Instance of Iloilo on April 1,
1967. Incidentally, while Panfilo and Felino are still
heirs in the said will, Aldina and Constancio are be-
queathed much bigger and more valuable shares in
the estate of Adriana than what they received by vir-
tue of the agreement of extrajudicial settlement they
had earlier signed. The will likewise gives devises and

legacies to other parties, among them being the peti-
tioners Asilo de Molo, the Roman Catholic Church of
Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio,
joined by the other devisees and legatees named in
the will, filed in Special Proceeding No. 1736 a motion
for reconsideration and annulment of the proceedings
therein and for the allowance of the will. When the
trial court denied their motion, the petitioner came to
us by way of a petition for certiorari and mandamus
assailing the orders of the court. As was stated ear-
lier, we dismissed that petition and advised that a
separate proceeding for the probate of the alleged will
would be the appropriate vehicle to thresh out the
matters raised by the petitioners.
Significantly, the appellate court while finding as
inconclusive the matter on whether or not the docu-
ment or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. De Coral, upon in-
structions of the testatrix, was indeed the will, con-
tradicted itself and found that the will had been re-
voked. The respondent court stated that the presence
of animus reuocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate
court based its finding on the facts that the document
was not in the two safes in Adriana’s residence, by the
testatrix going to the residence of Atty. Hervas to re-
trieve a copy of the will left in the latter’s possession,
and, her seeking the services of Atty. Palma in order to
have a new will drawn up. For reasons shortly to be ex-
plained, we do not view such facts, even considered col-
lectively, as sufficient basis for the conclusion that
Adriana Maloto’s will had been effectively revoked.
There is no doubt as to the testamentary capac-
ity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether
or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to
the issue can be found in Article 830.
xxx xxx xxx

It is clear that the physical act of destruction of

a will, like burning in this case, does not per se con-
stitute an effective revocation, unless the destruction
is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruc-
tion be done by the testator himself. It may be per-
formed by another person but under the express di-
rection and in the presence of the testator. Of course,
it goes without saying that the document destroyed
must be the will itself.
In this case, while animus revocandi, or the in-
tention to revoke, may be conceded, for that is a state
of mind, yet that requisite alone would not suffice.
“Animus revocandC is only one of the necessary ele-
ments for the effective revocation of a last will and tes-
tament. The intention to revoke must be accompanied
by the overt physical act of burning, tearing, obliterat-
ing, or cancelling the will carried out by the testator or
by another person in his presence and under his ex-
press direction. There is paucity of evidence to show
compliance with these requirements. For one, the
document or papers burned by Adriana’s maid, Gua-
dalupe, was not satisfactorily established to be a will
at all, much less the will of Adriana Maloto. For an-
other, the burning was not proven to have been done
under the express direction of Adriana. And then, the
burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they
were the only ones present at the place where the
stove (presumably in the kitchen) was located in
which the papers proffered as a will were burned.
The respondent appellate court in assessing the
evidence presented by the private respondents as op-
positors in the trial court, concluded that the testi-
mony of the two witnesses who testified in favor of the
will’s revocation appear “inconclusive.” We share the
same view. Nowhere in the records before us does it
appear that the two witnesses, Guadalupe Vda. De
Corral and Eladio Itchon, both illiterates, were un-
equivocably positive that the document burned was
indeed Adriana’s will. Guadalupe, we think, believed
that the papers she destroyed was the will only be-
cause, according to her, Adriana told her so. Eladio,

on the other hand, obtained his information that the
burned document was the will because Guadalupe
told him so, thus, his testimony on this point is dou-
ble hearsay.
At this juncture, we reiterate that “(it) is an im-

portant matter of public interest that a purported will
is not denied legalization on dubious grounds. Other-
wise, the very institution of testamentary succession
will be shaken to its very foundations x x x . "
c) The loss or unavailability of a will may, under

certain circumstances, give rise to the pre-
sumption that it had been revoked by physical
destruction.
Gago vs. Mamuyac

49 Phil. 902 (1927)
JOHNSON, J.:
xxx xxx xxx

On the 21st day of February, 1925, the present
action was commenced. Its purpose was to secure the
probation of the said will of the 16th day of April,
1919 (Exhibit 1). To said petition Comelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac presented their oppositions, alleging (a) that
the said will is a copy of the second will and testa-
ment executed by the said Miguel Mamuyac; (b) that
the same had been cancelled and revoked during the
lifetime of Miguel Mamuyac and (c) that the said will
was not the last will and testament of the deceased
Miguel Mamuyac.
Upon the issue thus presented, the Honorable

Anastacio R. Teodoro, judge, after hearing the respec-
tive parties, denied the probation of said will of April
16, 1919, upon the ground that the same had been
cancelled and revoked in the year 1920. Judge
Teodoro, after examining the evidence adduced, found
that the following facts had been satisfactorily proved:
“That Exhibit A is a mere carbon copy of its

original which remained in the possession of the de-
ceased testator Miguel Mamuyac, who revoked it be-
fore his death as per testimony of witnesses Jose
Fenoy, who typed the will of the testator on April 16,
1919, and Carlos Bejar, who saw on December 30,
1920, the original of Exhibit A (will of 1919) actually
cancelled by the testator Miguel Mamuyac, who as-
sured Carlos Bejar that inasmuch as he had sold him
a house and the land where the house was built, he
had to cancel it (the will of 1919), executing thereby a
new testament. Narcisa Gago in a way corroborates
the testimony of Jose Fenoy, admitting that the will
executed by the deceased (Miguel Mamuyac) in 1919
was found in the possession of father Miguel Ma-
muyac. The opponents have successfully established
the fact that father Miguel Mamuyac had executed in
1920 another will. The same Narcisa Gago, the sister
of the deceased, who was living in the house with
him, when cross-examined by attorney for the oppo-
nents, testified that the original of Exhibit A could not
be found. For the foregoing consideration and for the
reason that the original of Exhibit A has been can-
celled by the deceased father Miguel Mamuyac, the
court disallows the probate of Exhibit A for the appli-
cant.” For that order the petitioner appealed.
The appellant contends that the lower court
committed error in not finding from the evidence that
the will in question had been executed with all the
formalities required by law; that the same had been
revoked and cancelled in 1920 before his death; that
the said will was a mere carbon copy and that the op-
positors were not estopped from alleging that fact.
With reference to the said cancellation, it may be
stated that there is positive proof, not denied, which
was accepted by the lower court, that the will in ques-
tion had been cancelled in 1920. The law does not re-
quire any evidence of the revocation or cancellation of
a will to be preserved. It therefore becomes difficult at
times to prove the revocation or cancellation of wills.
The fact that such cancellation or revocation has taken
place must either remain unproved or be inferred from
evidence showing that after due search the original will

cannot be found. Where a will which cannot be found
is shown to have been in the possession of the tes-
tator, when last seen, the presumption is, in the
absence of other competent evidence, that the
same was cancelled or destroyed. The same pre-
sumption arises where it is shown that the testator
had ready access to the will and it cannot be found
after his death. It will not be presumed that such will
has been destroyed by any other person without the
knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the tes-
tator, while varying greatly, being weak or strong ac-
cording to the circumstances, is never conclusive, but
may be overcome by proof that the will was not de-
stroyed by the testator with intent to revoke it.
In view of the fact that the original will of 1919
could not be found after the death of the testator Mi-
guel Mamuyac and in view of the positive proof that
the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are
in accordance with the weight of the evidence. In a
proceeding to probate a will the burden of proof is
upon the proponent clearly to establish not only its
execution but its existence. Having proved its execu-
tion by the proponents, the burden is on the contest-
ant to show that it has been revoked. In a great ma-
jority of instances in which wills are destroyed for the
purpose of revoking them there is no witness to the
act of cancellation or destruction and all evidence of
its cancellation perishes with the testator. Copies of
wills should be admitted by the courts with great cau-
tion. When it is proven, however, by proper testimony
that a will was executed in duplicate and each copy
was executed with all the formalities and require-
ments of the law, then the duplicate may be admitted
in evidence when it is made to appear that the origi-
nal has been lost and was not cancelled or destroyed
by the testator. (Borromeo vs. Casquijo, G.R. No.
26063).
After a careful examination of the entire record,

we are fully persuaded that the will presented for pro-
bate had been cancelled by the testator in 1920.
ARTICLE 831. Subsequent wills which do not revoke

the previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or
contrary to those contained in the later wills, (n)
As pointed out in the comments under Article 830 (2),

supra, the revocation of a will by a subsequent will or codicil
may be express (through a revocatory clause) or implied
(through incompatibility). This provision—a new one—changes
the rule in the old Code found in Article 739, par. 1:
“El testamento anterior queda revocado de dere-

cho por el posterior perfecto, si el testador no expresa
en este su voluntad de que aquel subsista en todo o
en parte.”
Under that provision of the old Code, the mere fact of exe-
cution of a subsequent will, provided that will was valid, re-
voked the prior one, except only if the testator provides in. the
posterior will that the prior will was to subsist in whole or in part.
As explained by Sanchez Roman:
“3 ° Que todo testamento posterior perfecto, por
el mero hecho de su otorgamiento, revoca de Derecho
el anterior, aunque no sean incompatibles sus dis-
posiciones, salvo el caso de que el testador exprese en
este su voluntad de que aquel subsista en todo o en
parte (art. 739, parrafo primero).” (Tomo 6 °, Vol. 2 °,
p. 1495)
The present rule is not quite as radical: the execution of a

subsequent will does not ipso facto revoke a prior one.
ARTICLE 832. A revocation made in a subsequent will

shall take effect, even if the new will should become inop-
erative by reason of the incapacity of the heirs, devisees
or legatees designated therein, or by their renunciation.
(740a)
I. The efficacy of the revocatory clause does not depend

on the testamentary dispositions of the revoking will, unless
the testator so provides. Revocation is, generally speaking, an
absolute provision, independent of the acceptance or capacity
of the new heirs.
Example: X executes a will, naming A as his universal
heir. Two years later, X executes a second will revoking the first
and naming B as his universal heir. X then dies and B re-
nounces the inheritance. The first will remains revoked.
II. An obvious exception to this is an instance where the
testator provides in the subsequent will that the revocation of
the prior one is dependent on the capacity or acceptance of the
heirs, devisees, or legatees instituted in the subsequent will.
This becomes an example of “dependent relative revocation.”
Molo v. Molo (90 Phil. 37), quoting common-law sources,
explains dependent relative revocation:
“The rule is established that where the act of de-
struction is connected with the making of another will
so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the ef-
ficacy of the new disposition intended to be substi-
tuted, the revocation will be conditional and depend-
ent upon the efficacy of the new disposition; and if, for
any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the
original will remains In full force. (Gardner, pp. 232,
233.)
“This is the doctrine of dependent relative revo-
cation. The failure of the new testamentary disposi-
tion, upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive con-
dition, and hence prevents the revocation of the origi-
nal will. But a mere intent to make at some time a will
in place of that destroyed will not render the destruc-
tion conditional. It must appear that the revocation is
dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 233.)”
It is essential to remember that dependent relative revoca-

tion applies only if it appears that the testator intended his act
of revocation to be conditioned on the making of a new will or
on its validity, or efficacy.
III. Supposing the institution of heirs, legatees, or devi-
sees in the subsequent will is subject to a suspensive condition,
is the revocation of the prior will absolute or conditional? The
answer depends always on the testator’s intent. If the subse-
quent will contains a revocatory clause which is absolute or
unconditional, the revocation will be absolute, and the happen-
ing or non-happening of the suspensive condition will be imma-
terial. If, however, the testator states in the subsequent will
that the revocation of the prior will is subject to the occurrence
of the suspensive condition, or if the will does not contain a
revocatory clause, the revocation will depend on whether the
condition happens or not. If the suspensive condition on which
an institution depends does not occur, the institution is
deemed never to have been made and the prior institution will
be efficacious. This is in accord with the juridical nature of
suspensive conditions, and is an instance of dependent relative
revocation.
IV. Is the rule of dependent relative revocation applicable
if the revocation of the will is by physical destruction?
In Molo, the Supreme Court held, in an obiter, that the
physical destruction of the will did not revoke it, on the infer-
ence, drawn by the Court, that the testator meant the revoca-
tion to depend on the validity of a new one.
Molo vs. Molo

90 Phil. 37 (1951)
xxx xxx xxx
This is an appeal from an order of the Court of First
Instance of Rizal admitting to probate the last will and tes-
tament of the deceased Mariano Molo y Legaspi executed
on August 17, 1918. xxx xxx xxx
Mariano Molo y Legaspi died on January 24,
1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descend-

ing or ascending line. He was survived, however, by
his wife, the herein petitioner Juana Juan Vda. de
Molo, and by his nieces and nephew, the oppositors-
appellants, Luz, Gliceria and Comelio, all sumamed
Molo, who were the legitimate children of Candido
Molo y Legaspi, deceased brother of the testator. Mari-
ano Molo y Legaspi left two wills, one executed on Au-
gust 17, 1918, (Exhibit A) and another executed on
June 20, 1939, (Exhibit I). The latter will contains a
clause which expressly revokes the will executed in
1918.
On February 7, 1941, Juana Juan Vda. de Molo
filed in the Court of First Instance of Rizal a petition,
which was docketed as special proceeding No. 8022,
seeking the probate of the will executed by the de-
ceased on June 20, 1939. There being no opposition,
the will was probated. However, upon petition filed by
the herein oppositors, the order of the court admitting
the will to probate was set aside and the case was re-
opened. After hearing, at which both parties pre-
sented their evidence, the court rendered decision de-
nying the probate of said will on the ground that the
petitioner failed to prove that the same was executed
in accordance with law.
In view of the disallowance of the will executed
on June 20, 1939, the widow on February 24, 1944,
filed another petition for the probate of the will exe-
cuted by the deceased on August 17, 1918, which
was docketed as special proceeding No. 56, in the
same court. Again, the same oppositors filed an oppo-
sition to the petition based on three grounds: (1) that
petitioner is now estopped from seeking the probate of
the will of 1918; (2) that said will has not been exe-
cuted in the manner required by law and (3) that the
will has been subsequently revoked, xxx xxx xxx . . .
the court issued an order admitting the will to probate
as already stated in the early part of this decision.
From this order the oppositors appealed assigning six
errors, to wit:
xxx xxx xxx

“V. The probate court erred in not holding that

the alleged will of 1918 was deliberately revoked by
Molo himself.
“VI. The lower court erred in not holding that
Molo’s will of 1918 was subsequently revoked by the
decedent’s will of 1939.”
xxx xxx xxx
The next contention of appellants refers to the
revocatory clause contained in the 1939 will of the de-
ceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the
revocatory clause is valid and still has the effect of
nullifying the prior will of 1918.
Counsel for petitioner meets this argument by
invoking the doctrine laid down in the case of Samson
us. Naval, (41 Phil., 838). He contends that the facts
involved in that case are on all fours with the facts of
this case. Hence, the doctrine in that case is here con-
trolling.
There is merit in this contention. We have care-
fully read the facts involved in the Samson case and
we are indeed impressed by their striking similarity
with the facts of this case. We do not need to recite
here what those facts are; it is enough to point out
that they contain many points and circumstances in
common. No reason, therefore, is seen why the doc-
trine laid down in that case (which we quote here-
under) should not apply and control the present case.
“A subsequent will, containing a clause revoking
a previous will, having been disallowed, for the reason
that it was not executed in conformity with the provi-
sions of section 618 of the Code of Civil Procedure as
to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said revoca-
tory clause is void.” (41 Phil., 838.)
Apropos of this question, counsel for oppositors
make the remark that, while they do not disagree with
the soundness of the ruling laid down in the Samson
case, there is reason to abandon said ruling because
it is archaic or antiquated and runs counter to the
modem trend prevailing in American jurisprudence.

They maintain that said ruling is no longer controlling
but merely represents the point of view of the minority
and should, therefore, be abandoned, more so if we
consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of
American origin and as such should follow the pre-
vailing trend of the majority view in the United States.
A long line of authorities is cited in support of this
contention. And these authorities hold the view, that
“an express revocation is immediately effective upon
the execution of the subsequent will, and does not re-
quire that it first undergo the formality of a probate
proceeding.” (p. 63, appellants’ brief).
While there are many cases which uphold the
view entertained by counsel for oppositors, and that
view appears to be controlling in the states where the
decisions had been promulgated, however, we are re-
luctant to fall in line with the assertion that that is
now the prevailing view in the United States. In the
search we have made of American authorities on the
subject, we found ourselves in a pool of conflicting
opinions perhaps because of the peculiar provisions
contained in the statutes adopted by each State on
the subject of revocation of wills. But the impression
we gathered from a review and study of the pertinent
authorities is that the doctrine laid down in the Sam-
son case is still a good law. On page 328 of the Ameri-
can Jurisprudence, Vol. 57, which is a revision pub-
lished in 1948, we found the following passages which
in our opinion truly reflect the present trend of Ameri-
can jurisprudence on this matter affecting the revoca-
tion of prior wills:
“SEC. 471. Observance of Formalities in Execu-
tion of Instrument.—Ordinarily, statutes which permit
the revocation of a will by an other writing provide
that to be effective as a revocation, the writing must
be executed with the same formalities which are re-
quired be observed in the execution of a will. Accord-
ingly, where, under the statutes, attestation is neces-
sary to the making of a valid will, an unattested non-
testamentary writing is not effective to revoke a prior
will. It has been held that a writing fails as a revoking

instrument where it is not executed with the formali-
ties requisite for the execution of a will, even though it
is inscribed on the will itself, although it may effect a
revocation by cancellation or obliteration of the words
of the will. A testator cannot reserve to himself the
power to modify a will by a written instrument subse-
quently prepared but not executed in the manner re-
quired for a will.
“SEC. 472. Subsequent Unexecuted, Invalid or
Ineffective Will or Codicil.—A will which is invalid be-
cause of the incapacity of the testator or of undue in-
fluence can have no effect whatever as a revoking will.
Moreover, a will is not revoked by the unexecuted
draft of a later one. Nor is a will revoked by a defec-
tively executed will or codicil, even though the latter
contains a clause expressly revoking the former will,
in a jurisdiction where it is provided by a controlling
statute that no writing other than a testamentary in-
strument is sufficient to revoke a will, for the simple
reason that there is no revoking will. Similarly where
the statute provides that a will may be revoked by a
subsequent will or other writing executed with the
same formalities as are required in the execution of
wills, a defectively executed will does not revoke a
prior will, since it cannot be said that there is a writ-
ing which complies with the statute. Moreover, a will
or codicil which, on account of the manner in which it
is executed, is sufficient to pass only personally (sic)
does not affect dispositions of real estate made by a
former will, even though it may expressly purport to
do so. The intent of the testator to revoke is immate-
rial, if he has not complied with the statute.” (57 Am.
Jur., 328, 329.)
We find the same opinion in the American Law
Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the
“application of rules where second will is invalid,”
among which a typical one is the following:
“It is universally agreed that where the
second will is invalid on account of not being
executed in accordance with the provisions of
the statute, or where the testator has not suffi-

cient mental capacity to make a will or the will is
procured through undue influence, or the such,
in other words, where the second will is really no
will, it does not revoke the first will or affect it in
any manner.” Mort vs. Baker University (1935)
229 Mo. App., 632, 78 S. W. (2d), 498.
These treaties (sic) cannot be mistaken. They
uphold the view on which the ruling in the Samson
case is predicated. They reflect the opinion that this
ruling is sound and good and for this reason we see
no justification for abandoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623,
Code of Civil Procedure) provides that a will may be
revoked “by some will, codicil, or other writing exe-
cuted as provided in case of wills”; but it cannot be
said that the 1939 will should be regarded, not as a
will within the meaning of said word, but as “other
writing executed as provided in the case of wills,”
simply because it was denied probate. And even if it
be regarded as any other writing within the meaning of
said clause, there is authority for holding that unless
said writing is admitted to probate, it cannot have the
effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contend that, regard-
less of said revocatory clause, said will of 1918 can-
not still be given effect because of the presumption
that it was deliberately revoked by the testator him-
self. The oppositors contend that the testator, after
executing the 1939 will, and with full knowledge of
the revocatory clause contained in said will, himself
deliberately destroyed the original of the 1918 will,
and that for this reason the will submitted by peti-
tioner for probate in these proceedings is only a du-
plicate of said original.
There is no evidence which may directly indicate
that the testator deliberately destroyed the original of
the 1918 will because of his knowledge of the revoca-
tory clause contained in the will he executed in 1939.
The only evidence we have is that when the first will
was executed In 1918, Juan Salcedo, who prepared it,

gave the original and copies to the testator himself
and apparently they remained in his possession until
he executed his second will in 1939. And when the
1939 will was denied probate on November 29, 1943,
and petitioner was asked by her attorney to look for
another will, she found the duplicate copy (Exhibit A)
among the papers or flies of the testator. She did not
find the original.
If it can be inferred that the testator deliberately
destroyed the 1918 will because of his knowledge of
the revocatory clause of the 1939 will, and it is true
that he gave a duplicate copy thereof to his wife, the
herein petitioner, the most logical step for the testator
to take is to recall said duplicate copy in order that it
may likewise be destroyed. But this was not done as
shown by the fact that said duplicate copy remained
in the possession of petitioner. It is possible that be-
cause of the long lapse of twenty-one (21) years since
the first will was executed, the original of the will had
been misplaced or lost, and forgetting that there was
a copy, the testator deemed it wise to execute another
will containing exactly the same testamentary disposi-
tions. Whatever may be the conclusion we may draw
from this chain of circumstances, the stubborn fact is
that there is no direct evidence of voluntary or delib-
erate destruction of the first will by the testator. This
matter cannot be left to mere inference or conjecture.
Granting for the sake of argument that the ear-
lier will was voluntarily destroyed by the testator after
the execution of the second will, which revoked the
first, could there be any doubt, under this theory,
that said earlier will was destroyed by the testator in
the honest belief that it was no longer necessary be-
cause he had expressly revoked it in his will of 1939?
In other words, can we not say that the destruction of
the earlier will was but the necessary consequence of
the testator’s belief that the revocatory clause con-
tained in the subsequent will was valid and the latter
would be given effect? If such is the case, then it is
our opinion that the earlier will can still be admitted
to probate under the principle of “dependent relative

revocation."
“This doctrine is known as that of depend-
ent relative revocation, and is usually applied
where the testator cancels or destroys a will or
executes an instrument intended to revoke a will
with a present intention to make a new testa-
mentary disposition as a substitute for the old,
and the new disposition is not made or, if made,
fails of effect for some reason. The doctrine is
not limited to the existence of some other docu-
ment, however, and has been applied where a
will was destroyed as a consequence of a mis-
take of law * * (68 C.J. p. 799).
“The rule is established that where the act of de-
struction is connected with the making of another will
so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the ef-
ficacy of the new disposition intended to be substi-
tuted, the revocation will be conditional and depend-
ent upon the efficacy of the new disposition; and if, for
any reason, the new will intended to be made as a sub-
stitute is inoperative, the revocation fails and the original
will remains in full force." (Gardner, pp. 232, 233.)
“This is the doctrine of dependent relative revo-
cation. The failure of the new testamentary disposi-
tion, upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive con-
dition, and hence prevents the revocation of the origi-
nal will. But a mere intent to make at some time a will
in place of that destroyed will not render the destruc-
tion conditional. It must appear that the revocation is
dependent upon the valid execution of a new will.” (1
Alexander, p. 751; Gardner, p. 233.)
We hold, therefore, that even in the supposition
that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to
produce it in court, such destruction cannot have the
effect of defeating the prior will of 1918 because of the
fact that it is founded on the mistaken belief that the
will of 1939 has been validly executed and would be
given due effect. The theory on which this principle is

predicated is that the testator did not intend to die in-
testate. And this intention is clearly manifest when he
executed two wills on two different occasions and insti-
tuted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.
xxx xxx xxx
Apart from the fact that the statement is obiter (the facts
did not clearly show that the will had been destroyed), it is ar-
guable whether the prior will should be deemed to subsist de-
spite its physical destruction. Can it not be argued that the act
of the testator in destroying the will in fact confirmed his intent
to revoke it? Was the Supreme Court not drawing too remote
an inference? The case of Diaz v. De Leon (43 Phil. 413) might
be more instructive:
Diaz vs. De Leon
(43 Phil. 413 [1922])
ROMUALDEZ, J.:
xxx xxx xxx

The only question raised in this case is whether
or not the will executed by Jesus de Leon, now de-
ceased, was revoked by him.
The petitioner denies such revocation, while the
contestant affirms the same by alleging that the testa-
tor revoked his will by destroying it, and by executing
another will expressly revoking the former.
We find that the second will Exhibit 1 executed
by the deceased is not clothed with all the necessary
requisites to constitute a sufficient revocation.
But according to the statute governing the sub-
ject in this jurisdiction, the destruction of a will with
animo revocandi constitutes, in itself, a sufficient
revocation. (Sec. 623, Code of Civil Procedure.)
From the evidence submitted in this case, it ap-
pears that the testator, shortly after the execution of
the first will in question, asked that the same be re-
turned to him. The instrument was returned to the

testator who ordered his servant to tear the docu-
ment. This was done in his presence and before a
nurse who testified to this effect. After some time, the
testator, being asked by Dr. Comelio Mapa about the
will, said that it had been destroyed.
The intention of revoking the will is manifest
from the established fact that the testator was anx-
ious to withdraw or change the provisions he had
made in his first will. This fact is disclosed by the tes-
tator’s own statements to the witnesses Canto and the
Mother Superior of the Hospital where he was con-
fined.
The original will herein presented for probate
having been destroyed with animo revocandi, cannot
now be probated as the will and last testament of Je-
sus de Leon.
Judgment is affirmed with costs against the pe-
titioner. So ordered.
xxx xxx xxx
V. Rule if Revocation is Implied—

The rule laid down in this article will apply even if the
revocation of the prior will by the subsequent will is implied;
i. e. by incompatibility of provisions, not by a revocatory clause.
The intent of the testator to set aside the prior institutions is,
in either case, clear.
ARTICLE 833. A revocation of a will based on a false

cause or illegal cause is null and void, (n)
I. Wills are revocable ad nutum, le. at the testator’s

pleasure. So great is the law’s respect for the testator’s power to
revoke.
The testator, therefore, does not have to have a reason or
a cause for revoking. However, precisely because the law re-
spects the testator’s true intent, this article sets aside a revoca-
tion that does not reflect such intent.
II. Requisites for the application of Article 833 regarding

revocation for a false cause:
1. the cause must be concrete, factual and not purely
subjective.
[If, for example, a testator were to revoke on the stated
ground that he has learned that the heir was an Ilocano and all
Ilocanos are bad, the revocation would be valid. The ground is
blind and irrational prejudice (as all prejudices are) but a
purely subjective one and will not invalidate the revocation
under this article].
2. it must be false;
3. the testator must not know of its falsity;
4. it must appear from the will that the testator is re-
voking because of the cause which is false.
III. If the revocation is by physical destruction, and the
revoked will is holographic, then though the revocation be null
and void, probate will not be possible (Gan v. Yap, supra, Article
811), unless a copy survives (Rodelas v. Aranza, supra, ibid.).
TV. The extension of the coverage of this Article to illegal
causes in effect restricts the testator’s freedom to revoke. There
is no question of mistake in such a case, which might vitiate
the testator’s autonomy of will. If the principle is that a will is
revocable ad nutum, then it should indeed be revocable at
pleasure, whatever the testator’s motives or reasons might be,
and however impure or blemished they might be, as long only
as he acts freely and knowingly. A testamentary disposition is,
after all, a gratuitous grant, and can be withdrawn for any rea-
son, or for no reason.
The rule in this article regarding nullity of revocation for
an illegal cause limits this freedom, albeit for laudable public
policy considerations.
It must be noted, however, that the illegal cause should be
stated in the will as the cause of the revocation.
ARTICLE 834. The recognition of an illegitimate

child does not lose its legal effect, even though the will
wherein it was made should be revoked. (741)
I. That part of will which recognizes an illegitimate child

is not revocable; recognition is an irrevocable act. Therefore,
even if the will is revoked, the recognition remains effective.
II. Under the Family Code, admission of illegitimate filia-
tion in a will would constitute proof of illegitimate filiation. Vide
Article 175, Family Code.16 Basically, the principle laid down in
Article 834 remains unaltered regarding these admissions con-
tained in wills.
SUBSECTION 7 .—REPUBLICATION
AND REVIVAL OF WILLS
ARTICLE 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions con-
tained in a previous one which is void as to its form, (n)
ARTICLE 836. The execution of a codicil referring to
a previous will has the effect of republishing the will as
modified by the codicil, (n)
1. If the testator wishes to republish a will that is void as
to form, the only way to republish it is to execute a subsequent
will and reproduce (i.e., copy out) the dispositions of the origi-
nal will (Article 835). Mere reference to the prior will in the sub-
sequent will is not enough.
A will is void as to form if it does not comply with the re-

quirements of Articles 804-808; 810-814; 818 and 819.
2. If the testator wishes to republish a will that is either
(a) void for a reason other than a formal defect. (For
example: A will that institutes one of the three at-
testing witnesses); or
16 ART. 175. Illegitimate children may establish their illegitimate filiation
in the same way and on the same evidence as legitimate children.

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 par-
ent. (289a)
(b) previously revoked, the only thing necessary to

republish it is for the testator to execute a subse-
quent will or codicil referring to the previous will.
There is no need to reproduce the provisions of
the prior will in the subsequent instrument.
[Note: It seems arbitrary that the rules for republication
should be different in cases where the original will is void as to
form and those where it is not. The explanation is found in the
fact that Article 835 is derived from Argentine law and Article
836, from California law. Our Code is a patchwork quilt.]
ARTICLE 837. If after making a will, the testator
makes a second will expressly revoking the first, the revo-
cation of the second will does not revive the first will,
which can be revived only by another will or codicil. (739a)
I. 1. Illustration:
In 1985, X executed Will I
In 1987, X executed Will II, expressly revoking Will I.
In 1990, X executed Will III, revoking Will II.
The revocation of Will II by Will III does not revive Will I, un-
less of course, Will III expressly revives Will I.
2. Comment: This article is based on the theory of
instant revocation; i.e. that the revocatory effect of the
second will (Will II in the illustration) is immediate. Such a
theory is, however, inconsistent with the principle that
wills take effect mortis causa.
Furthermore, to be effective (for the purpose of revoking
the first will) the second will must be probated. But it has al-
ready been revoked by the third will. A revoked will now has to
be submitted to probate?
II. If revocation of the.first will implied—The terms of this
article apply only where the revocation of the first will by the
second will is express. A sensu contrario, if the revocation is
implied (i.e. by incompatible provisions), the article will not ap-
ply—herefore, in such a case, the revocation of the second will
by a third will revives the first will, unless the third will is itself
inconsistent with the first.
III. An obvious exception to this article is a case where
the second will is holographic and it is revoked by physical de-
struction, because then, the possibility of its probate is fore-
closed (Gan vs. Yap, supra, Article 811), unless a copy survives
(Rodelas vs. Aranza, supra, ibid.).
SUBSECTION 8. —ALLOWANCE AND
DISALLOWANCE OF WILLS
ARTICLE 838. No will shall pass either real or per-
sonal property unless it is proved and allowed in accor-
dance with the Rules of Court.
The testator himself may, during his lifetime, petition
the court having jurisdiction for the allowance of his will.
In such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testator’s death shall
govern.
The Supreme Court shall formulate such additional
Rules of Court as may be necessary for the allowance of
wills on petition of the testator.
Subject to the right of appeal, the allowance of the will,
either during the lifetime of the testator or after his death,
shall be conclusive as to its due execution, (n)
I. Probate of a will is mandatory (Roberts v. Leonidas, 129
SCRA 33 [1984], citing Guevara v. Guevara, 74 Phil. 479 [1943]
and 98 Phil. 249 [1956], and Baluyot v. Paiio, 71 SCRA 86
[1976]; Gallanosa v. Arcangel, 83 SCRA 676[1978]).
Guevara vs. Guevara

74 Phil. 479 (1943)
OZAETA, J.:
Ernesto M. Guevara and Rosario Guevara, le-

gitimate son and natural daughter, respectively, of the
deceased Victorino L. Guevara, are litigating here over
their inheritance from the latter. The action was com-

menced on November 12, 1937, by Rosario Guevara
to recover from Ernesto Guevara what she claims to
be her strict legitime as an acknowledged natural
daughter of the deceased—to wit, a portion of 423,492
square meters of a large parcel of land described in
original certificate of title No. 51691 of the province of
Pangasinan, issued in the name of Ernesto M.
Guevara, x x x . The defendant answered the com-
plaint contending that whatever right or rights the
plaintiff might have had, had been barred by the op-
eration of law.
It appears that on August 26, 1931, Victorino L.
Guevara executed a will (exhibit A), apparently with
all the formalities of the law, wherein he made the fol-
lowing bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth PI50 and a gold
chain worth P40; to his son Ernesto M. Guevara, a
gold ring worth P180 and all the furniture, pictures,
statues, and other religious objects found in the resi-
dence of the testator in Poblacion Sur, Bayambang,
Pangasinan: “a mi hija Rosario Guevara,” a pair of
earrings worth P120; and to his stepson Pio Guevara,
a ring worth P120; and to his wife by second mar-
riage, Angustia Posadas, various pieces of jewelry
worth PI,020.
He also made the following devises: “A mis hijos
Rosario Guevara y Ernesto M. Guevara y a mis hijas-
tros, Vivencio, Eduviges, Dionisia, Candida y Pio, ap-
pellidados Guevara,” a residential lot with its im-
provements situated in the town of Bayambang, Pan-
gasinan, having an area of 960 square meters and as-
sessed at P540: to his wife Angustia Posadas he con-
firmed the donation propter nuptias theretofore made
by him to her of a portion of 25 hectares of the large
parcel of land of 259-odd hectares described in plan
Psu-66618. He also devised to her a portion of 5 hec-
tares of the same parcel of land by way of complete
settlement of her usufructuary right.
He set aside 100 hectares of the same parcel of
land to be disposed of either by him during his life-
time or by his attomey-in-fact Ernesto M. Guevara in
order to pay all his pending debts and to defray his

expenses and those of his family up to the time of his
death.
The remainder of said parcel of land he disposed
of in the following manner:
“(d).—Toda la porcion restante de mi ter-
reno arriba descrito, de la extension superficial
aproximada de ciento veintinueve (129) hec-
tareas, setenta (70) areas, y veintencinco (25)
centiareas, con todas sus mejoras existentes en
la misma, dejo y distribuyo, pro-indiviso, a mis
siguientes herederos como sigue:
“A mi hijo legitimo, Ernesto M. Guevara,
ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la
parte que colinda al Oeste de las cien (100) hec-
tareas referidas en el inciso (a) de este parrafo
del testamento, como su propriedad absoluta y
exclusiva, en la cual extension superficial estan
incluidas cuarenta y tres (43) hectareas, veinti-
tres (23) areas y cuarenta y dos (42) centiareas
que le doy en concepto de mejora.
“A mi hija natural reconocida, Rosario
Guevara, veintiun (21) hectareas, sesenta y un
(61) areas y setenta y un (71) centiares, que es la
parte restante.
“Duodecimo.—Nombro por la presente
como Albacea Testamentario a mi hijo Ernesto
M. Guevara, con relevacion de fianza. Y una vez
legalizado este testamento, y en cuanto sea
posible, es mi deseo, que los herederos y lega-
tarios aqui nombrados se repartan extrajudi-
cialmente mis bienes de conformidad con mis
disposiciones arriba consignadas.”
xxx xxx xxx
On September 27, 1933, Victorino L. Guevara
died. His last will and testament, however, was never
presented to the court for probate, nor has any ad-
ministration proceeding even been instituted for the
settlement of his estate. Whether the various legatees
mentioned in the will have received their respective

legacies or have even been given due notice of the
execution of said will and of the dispositions therein
made in their favor, does not affirmatively appear
from the record of this case. Ever since the death of
Victorino L. Guevara, his only legitimate son Ernesto
M. Guevara appears to have possessed the land adju-
dicated to him in the registration proceeding and to
have disposed of various portions thereof for the pur-
pose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears
to have had her father’s last will and testament in her
custody, did nothing judicially to invoke the testa-
mentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural
daughter and, aside from certain legacies and be-
quests, devised her a portion of 21.6171 hectares of
the large parcel of land described in the will. But a lit-
tle over four years after the testator’s demise, she (as-
sisted by her husband) commenced the present action
against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the
trial of this case that she presented the will to the
court, not for the purpose of having it probated but
only to prove that the deceased Victorino L. Guevara
had acknowledged her as his natural daughter. Upon
that proof of acknowledgment she claimed her share
of the inheritance from him, but on the theory or as-
sumption that he died intestate, because the will had
not been probated, for which reason, she asserted,
the betterment therein made by the testator in favor
of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of Ap-
peals sustained that theory.
xxx xxx xxx
We cannot sanction the procedure adopted by
the respondent Rosario Guevara, it being in our opin-
ion in violation of procedural law and an attempt to
circumvent and disregard the last will and testament
of the decedent.
xxx xxx xxx

The proceeding for the probate of a will is one in

rem, with notice by publication to the whole world and
with personal notice to each of the known heirs, lega-
tees, and devisees of the testator (section 630, C.C.P.,
and sections 3 and 4, Rule 77), the due execution of
the will and the fact that the testator at the time of its
execution was of sound and disposing mind and not
acting under duress, menace, and undue influence or
fraud, must be proved to the satisfaction of the court,
and only then may the will be legalized and given ef-
fect by means of a certificate of its allowance signed
by the judge and attested by the seal of the court; and
when the will devises real property, attested copies
thereof and of the certificate of allowance must be re-
corded in the register of deeds of the province in
which the land lies. (Section 12, Rule 77, and Section
624, C.C.P.)
It will readily be seen from the above provisions
of the law that the presentation of a will to the court
for probate is mandatory and its allowance by the
court is essential and indispensable to its efficacy. To
assure and compel the probate of a will, the law pun-
ishes a person who neglects his duty to present it to
the court with a fine not exceeding P2.000, and if he
should persist in not presenting it, he may be com-
mitted to prison and kept there until he delivers the
will.
The Court of Appeals took express notice of
these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanc-
tioned the procedure adopted by the respondent for
the following reasons:
“The majority of the Court is of the opinion
that if this case is dismissed ordering the filing
of testate proceedings, it would cause injustice,
inconvenience, delay, and much expense to the
parties, and that therefore, it is preferable to
leave them in the very status which they them-
selves have chosen, and to decide their contro-
versy once and for all, since, in a similar case,
the Supreme Court applied that same criterion
(Leano vs. Leano, supra), which is now sane-
tioned by section 1 of Rule 74 of the Rules of

Court. Besides, section 6 of Rule 124 provides
that, if the procedure which the court ought to
follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court,
any suitable process or mode of procedure may
be adopted which appears most consistent to
the spirit of the said Rules. Hence, we declare
that action instituted by the plaintiff to be in ac-
cordance with law.”
Let us look into the validity of these considera-
tions. Section 1 of Rule 74 provides as follows:
"Section 1. Extrajudicial settlement by
agreement between heirs.—If the decedent left no
debts and the heirs and legatees are all of age,
or the minors are represented by their judicial
guardians, the parties may, without securing let-
ters of administration, divide the estate among
themselves as they see fit by means of a public
instrument filed in the office of the register of
deeds, and should they disagree, they may do so
in an ordinary action of partition. If there is only
one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit
filed in the office of the register of deeds. It shall
be presumed that the decedent left no debts if
no creditor files a petition for letters of admini-
stration within two years after the death of the
decedent.
That is a modification of section 596 of the Code
of Civil Procedure, which reads as follows:
“Sec. 596. Settlement of Certain Intestates
Without Legal Proceedings.—Whenever all the
heirs of a person who died intestate are of lawful
age and legal capacity and there are no debts
due from the estate, or all the debts have been
paid the heirs may, by agreement duly executed
in writing by all of them, and not otherwise, ap-
portion and divide the estate among themselves,
as they may see fit, without proceeding in
court.”
The implication is that by the omission of the

word “intestate” and the use of the word “legatees” in
section 1 of Rule 74, a summary extrajudicial settle-
ment of a deceased person’s estate, whether he died
testate or intestate, may be made under the condi-
tions specified. Even if we give retroactive effect to
section 1 of Rule 74 and apply it here, as the Court of
Appeals did, we do not believe it sanctions the non-
presentation of a will for probate and much less the
nullification of such will thru the failure of its custo-
dian to present it to the court for probate; for such a
result is precisely what Rule 76 sedulously provides
against. Section 1 of Rule 74 merely authorizes the
extrajudicial or judicial partition of the estate of a de-
cedent “without securing letters of administration.” It
does not say that in case the decedent left a will the
heirs and legatees may divide the estate among them-
selves without the necessity of presenting the will to
the court for probate. The petition to probate a will
and the petition to issue letters of administration are
two different things, although both may be made in
the same case. The allowance of a will precedes the
issuance of letters testamentary or of administration
(section 4, Rule 78). One can have a will probated
without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule
74, in relation to Rule 76, if the decedent left a will
and no debts and the heirs and legatees desire to
make an extrajudicial partition of the estate, they
must first present that will to the court for probate
and divide the estate in accordance with the will. They
may not disregard the provisions of the will unless the
provisions are contrary to law. Neither may they do
away with the presentation of the will to the court for
probate, because such suppression of the will is con-
trary to law and public policy. The law enjoins the
probate of the will and public policy requires it, be-
cause unless the will is probated and notice thereof
given to the whole world, the right of a person to dis-
pose of his property by will may be rendered nuga-
tory, as is attempted to be done in the instant case.
Absent legatees and devisees, or such of them as may
have no knowledge of the will, could be cheated of
their inheritance thru the collusion of some of the

heirs who might agree to the partition of the estate
among themselves to the exclusion of others.
In the Instant case there is no showing that the
various legatees other than the present litigants had
received their respective legacies or that they had
knowledge of the existence and of the provisions of
the will. Their right under the will cannot be disre-
garded, nor may those rights be obliterated on ac-
count of the failure or refusal of the custodian of the
will to present it to the court for probate.
Even if the decedent left no debts and nobody
raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the
partition of the estate in accordance with that will
without first securing its allowance or probate by the
court, first, because the law expressly provides that
“no will shall pass either real or personal estate
unless it is proved and allowed in the proper court”;
and, second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and sub-
stituted by any other proceeding, judicial or extrajudi-
cial, without offending against public policy designed
to effectuate the testator’s right to dispose of his prop-
erty by will in accordance with law and to protect the
rights of the heirs and legatees under the will thru the
means provided by law, among which are the publica-
tion and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and al-
low the will presented in evidence in such an action
for partition, which is one in personam, any more
than it could decree the registration under the Tor-
rens system of the land involved in an ordinary action
for reivindicacion or partition.
We therefore believe and so hold that section 1,
Rule 74, relied upon by the Court of Appeals, does not
sanction the procedure adopted by the respondent.
The case of Leano vs. Leano (25 Phil. 180), cited
by the Court of Appeals, like section 1 of Rule 74,
sanctions the extrajudicial partition by the heirs of
the properties left by a decedent, but not the nonpre-

sentation of a will for probate.
xxx xxx xxx
xxx. That decision cannot be relied upon as an
authority for the unprecedented and unheard of pro-
cedure adopted by the respondent whereby she seeks
to prove her status as an acknowledged natural child
of the decedent by his will and attempts to nullify and
circumvent the testamentary dispositions made by
him by not presenting the will to the court for probate
and by claiming her legitime as an acknowledged
natural child on the bases of intestacy; and that in
the face of express mandatoiy provisions of the law
requiring her to present the will to the court for pro-
bate.
In the subsequent case of Riosa vs. Rocha
(1926), 48 Phil. 737, this Court departed from the
procedure sanctioned by the trial court and impliedly
approved by this Court in the Leano case, by holding
that an extrajudicial partition is not proper in testate
succession.
xxx xxx xxx
The Court of Appeals also said “that if this case
is dismissed, ordering the filing of testate proceedings,
it would cause injustice, inconvenience, delay, and
much expense to the parties.” We see no injustice in
requiring the plaintiff not to violate but to comply with
the law. On the contrary, an injustice might be com-
mitted against the other heirs and legatees mentioned
in the will if the attempt of the plaintiff to nullify said
will by not presenting it to the court for probate
should be sanctioned. As to the inconvenience, delay,
and expense, the plaintiff herself is to blame because
she was the custodian of the will and she violated the
duty imposed upon her by sections 2, 4 and 5 of Rule
76, which command her to deliver said will to the
court on pain of a fine not exceeding P2.000 and of
imprisonment for contempt of court. As for the defen-
dant, he Is not complaining of inconvenience, delay,
and expense, but on the contrary he is insisting that
the procedure prescribed by law be followed by the

plaintiff.
Our conclusion is that the Court of Appeals
erred in declaring the action instituted by the plaintiff
to be in accordance with law. It also erred In awarding
relief to the plaintiff in this action on the basis of in-
testacy of the decedent notwithstanding the proven
existence of a will left by him and solely because said
will has not been probated due to the failure of the
plaintiff as custodian thereof to comply with the duty
imposed.
xxx xxx xxx
Wherefore, xxx the judgment of said court inso-
far as it awards any relief to the respondent Rosario
Guevara in this action is hereby reversed and set
aside, and the parties herein are hereby ordered to
present the document exhibit A to the proper court for
probate in accordance with law, without prejudice to
such action as the provincial fiscal of Pangasinan may
take against the responsible party or parties under
section 4, Rule 76. After the said document is ap-
proved and allowed by the court as the last will and
testament of the deceased Victorino L. Guevara, the
heirs and legatees therein named may take such ac-
tion, judicial or extrajudicial, as may be necessary to
partition the estate of the testator, xxx.
Under the present Rules this is true a fortiori10
SECTION 1. Extrajudicial settlement by agree-

ment between heirs.—If the decedent left no will and
no debts and the heirs are all of age, or the minors
are represented by their judicial or legal representa-
tives duly authorized for the purpose, the parties may,
without securing letters of administration, divide the
estate among themselves as they see fit by means of a
public instrument filed in the office of the register of
deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one
heir, he may adjudicate to himself the entire estate by
10 Rule 74, Sec. 1 (present Rules)

means of an affidavit filed in the office of the register

of deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a
pending action for partition, or the sole heir who ad-
judicates the entire estate to himself by means of an
affidavit shall file, simultaneously with and as a con-
dition precedent to the filing of the public instrument,
or stipulation in the action for partition, or of the affi-
davit in the office of the register of deeds, a bond with
the said register of deeds, in an amount equivalent to
the value of the personal property involved as certified
to under oath by the parties concerned and condi-
tioned upon the payment of any just claim that may
be filed under section 4 of this rule. It shall be pre-
sumed that the decedent left no debts if no creditor
files a petition for letters of administration within two
(2) years after the death of the decedent.
The fact of the extrajudicial settlement or ad-

ministration shall be published in a newspaper of
general circulation in the manner provided in the next
succeeding section; but no extrajudicial settlement
shall be binding upon any person who has not par-
ticipated therein or had no notice thereof.
II. A. Two kinds of probate:

1. Post-mortem—after the testator’s death
2. Ante-mortem—during his lifetime
Ante-mortem probate is a new feature introduced by the

new Civil Code. The Code Commission explains the reason for
the innovation thus:
“Most of the cases that reach the courts involve

either the testamentary capacity of the testator or the
formalities adopted in the execution of wills. There are
relatively few cases concerning the intrinsic validity of
testamentary dispositions. It is far easier for the
courts to determine the mental condition of a testator
during his lifetime than after his death. Fraud, in-
timidation and undue influence are minimized. Fur-
thermore, if a will does not comply with the require-
ments prescribed by law, the same may be corrected
at once. The probate during the testator’s life, there-

fore, will lessen the number of contests upon wills.
Once a will is probated during the lifetime of the tes-
tator, the only questions that may remain for the
courts to decide after the testator’s death will refer to
the intrinsic validity of the testamentary dispositions.
It is possible, of course, that even when the testator
himself asks for the allowance of the will, he may be
acting under duress or undue influence, but these are
rare cases.” (The Code Commission Report, p. 53)
B. The rules on probate—both post-mortem and ante-

mortem—are found in Rule 76 of the Rules of Court.
III. Finality of a probate decree—

Once a decree of probate becomes final in accordance with
the rules of procedure, it is res judicata.
De la Cema vs. Potot

12 SCRA 576 (1964)
REYES, J.B.L., J.:
It appears that on May 9, 1939, the spouses,
Bemabe de la Cerna and Gervasia Rebaca, executed a
joint last will and testament in the local dialect
whereby they willed that ‘our two parcels of land ac-
quired during our marriage together with all im-
provements thereon shall be given to Manuela Re-
baca, our niece, whom we have nurtured since child-
hood, because God did not give us any child in our
union, Manuela Rebaca being married to Nicolas Po-
tot,’ and that ‘while each of the testators is yet living,
he or she will continue to enjoy the fruits of the two
lands aforementioned,’ xxx Bemabe de la Cema died
on August 30, 1939, and the aforesaid will was sub-
mitted to probate by said Gervasia and Manuela be-
fore the Court of First Instance of Cebu which, after
due publication as required by law and there being no
opposition, heard the evidence, and, by Order of Oc-
tober 31, 1939; in Special Proceedings No. 499, ‘de-
clara’ legalizado el documento Exhibit A come el tes-
tamento y ultima voluntad del finado xxx Upon the

death of Gervasia Rebaca on October 14, 1952, an-
other petition for the probate of the same will insofar
as Gervasia was concerned was filed on November 6,
1952, xxx but for failure of the petitioner, Manuela R.
Potot, and her attorney, Manuel Potot to appear, for
the hearing of said petition, the case was dismissed
on March 30, 1954 (Spec. Proc. No. 1016-R, In the
matter of the Probate of the Will of Gervasia Rebaca).’
The Court of First Instance ordered the petition
null and void, for being executed contrary to the pro-
hibition of joint wills in the Civil Code (Art. 669, Civil
Code of 1889 and Art. 818, Civil Code of the Philip-
pines); but on appeal by the testamentary heir, the
Court of Appeals reversed, on the ground that the de-
cree of probate in 1939 was issued by a court of pro-
bate jurisdiction and conclusive on the due execution
of the testament. Further, the Court of Appeals de-
clared that:
" ‘xxx. It Is true the law (Art. 669, old Civil
Code; Art. 818, new Civil Code) prohibits the
making of a will jointly by two or more persons
either for reciprocal benefit or for the benefit of a
third person. However, this form of will has long
been sanctioned by use, and the same has con-
tinued to be used; and when, as in the present
case, one such joint last will and testament has
been admitted to probate by final order of a
Court of competent jurisdiction, there seems to
be no alternative except to give effect to the pro-
visions thereof that are not contrary to law, as
was done in the case of Macrohon vs. Saavedra,
51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein
mentioned, saying, ‘assuming that the joint will
in question is valid.’
“Whence this appeal by the heirs intestate
of the deceased husband, Bemabe de la Cema.
“The appealed decision correctly held that
the final decree of probate, entered in 1939 by
the Court of First Instance of Cebu (when the
testator, Bemabe de la Cema, died), has conclu-

sive effect as to his last will and testament, de-
spite the fact that even then the Civil Code al-
ready decreed the invalidity of joint wills,
whether in favor of the joint testators, recipro-
cally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the
probate court was an error of law, that should
have been corrected by appeal, but which did
not affect the jurisdiction of the probate court,
nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered
on a petition for the probate of a will is binding
upon the whole world (Manalo vs. Paredes, 47
Phil. 938; In re Estate of Johnson, 39 Phil. 156);
and public policy and sound practice demand
that at the risk of occasional errors, judgment of
courts should become final at some definite date
fixed by law. Interest rei publicae ut Jinis sit litium
(Dy Cay us. Crossfield., 38 Phil. 521, and other
cases cited in 2 Moran, Comments on the Rules
of Court [1963 Ed., p. 322]).
“Petitioners, as heirs and successors of the
late Bemabe de la Cema, are concluded by the
1939 decree admitting his will to probate. The
contention that being void the will cannot be
validated, overlooks that the ultimate decision
on whether an act is valid or void rests with the
courts, and here they have spoken with finality
when the will was probated in 1939. On this
court, the dismissal of their action for partition
was correct.
"But the Court of Appeals should have
taken into account also, to avoid future misun-
derstanding, that the probate decree in 1939
could only affect the share of the deceased hus-
band, Bemabe de la Cema. It could not Include
the disposition of the share of the wife, Gervasia
Rebaca, who was then still alive, and over whose
interest in the conjugal properties the probate
court acquired no jurisdiction, precisely because
her estate could not then be in issue. Be it re-
membered that prior to the new Civil Code, a will

could not be probated during the testator’s life-
time.
“It follows that the validity of the joint will,
in so far as the estate of the wife was concerned,
must be, on her death, re-examined and adjudi-
cated de novo, since a joint will is considered a
separate will of each testator. Thus regarded, the
holding of the Court of First Instance of Cebu
that the joint will is one prohibited by law was
correct as to the participation of the deceased
Gervasia Rebaca in the properties in question,
for the reasons extensively discussed in our de-
cision in Bilbao vs. Bilbao, 87 Phil. 144, that ex-
plained the previous holding in Macrohon vs.
Saavedra, 51 Phil. 267."
IV. Scope of a final decree of probate —

1. A final decree of probate is conclusive as to the
due execution of the will; i.e., as to the will’s ex-
trinsic or formal validity only.
Gallanosa vs. Arcangel

83 SCRA 676 (1978)
AQUINO, J
xxx xxx xxx

“The case involves the sixty-one parcels of land
in Sorsogon left by Florentino Hitosis, with an esti-
mated value of P50,000, and claims for damages ex-
ceeding one million pesos. The undisputed facts are
as follows:
“1. Florentino Hitosis executed a will in the Bi-
col dialect on June 19, 1938 when he was eighty
years old. He died on May 26, 1939 at Irosin, Sorso-
gon. A childless widower, he as (sic) survived by his
brother, Leon Hitosis. His other brothers, named
Juan, Tito (Juancito), Leoncio (Aloncio) and Apolonio
and only sister, Teodora, were all dead.
“2. On June 24, 1939 a petition for the probate

of his will was filed in the Court of First Instance of
Sorsogon xxx. The notice of hearing was duly pub-
lished. In that will, Florentino bequeathed his one-
half share in the conjugal estate to his second wife,
Tecla Dollentas, and, should Tecla predecease him, as
was the case, his one-half share would be assigned to
the spouses Pedro Gallanosa and Corazon Grecia, the
reason being that Pedro, Tecla’s son by her first mar-
riage, grew up under the care of Florentino; he had
treated Pedro as his foster child, and Pedro rendered
services to Florentino and Tecla. Florentino likewise
bequeathed his separate properties consisting of three
parcels of abaca land and parcel of riceland to his
protege (sasacuyang ataman), Adolfo Fortajada, a mi-
nor.
“3. Opposition to the probate of the will was
registered by the testator’s legal heirs, namely, his
surviving brother, Leon, and his nephews and nieces.
After a hearing, wherein the oppositors did not pre-
sent any evidence in support of their opposition,
Judge Pablo S. Rivera, in his decision of October 27,
1939, admitted the will to probate and appointed Gal-
lanosa as executor. Judge Rivera specifically found
that the testator executed his last will ‘gozando de
buena salud y facultades mentales y no obrando en
virtud de amenaza, fraude o influencia indebida.’
“4. On October 24, 1941, the testamentary
heirs, the Gallanosa spouses and Adolfo Fortajada,
submitted a project of partition xxx. The project of
partition was approved by Judge Doroteo Amador in
his order of March 13, 1943, thus confirming the
heirs’ possession of their respective shares. The testa-
tor’s legal heirs did not appeal from the decree of pro-
bate and from the order of partition and distribution.
“5. On February 20, 1952, Leon Hitosis and
the heirs of Florentine’s deceased brothers and sisters
instituted an action in the Court of First Instance of
Sorsogon against Pedro Gallanosa for the recovery of
the said sixty-one parcels of land. They alleged that
they, by themselves or through their predecessors-in-
interest, had been in continuous possession of those
lands en concepto de dueno and that Gallanosa en-

tered those lands in 1951 and asserted ownership
over the lands, xxx
“6. Gallanosa moved to dismiss the above
complaint for lack of cause of action on the ground of
bar by the prior judgment In the probate proceeding.
Judge Anatolio C. Manalac dismissed the complaint
on the ground of res judicata xxx.
xxx xxx xxx
“7. The plaintiffs did not appeal from that order
of dismissal which should have set the matter at rest.
But the same plaintiffs or oppositors to the probate of
the will, and their heirs, with a persistence befitting a
more meritorious case, filed on September 21, 1967,
or fifteen years after the dismissal of Civil Case No.
696 and twenty-eight years after the probate of the
will, another action in the same court against the Gal-
lanosa spouses and Adolfo Fortajada for the ‘annul-
ment’ of the will of Florentino Hitosis and for the re-
covery of the same sixty-one parcels of land. They
prayed for the appointment of a receiver.
“8. As basis of their complaint, they alleged
that the Gallanosa spouses, through fraud and deceit,
caused the execution and simulation of the document
purporting to be the last will and testament of Floren-
tino Hitosis. xxx
“9. As already stated, that 1967 complaint,
upon motion of the defendants, now and petitioners,
was dismissed by respondent Judge. The plaintiffs
filed a motion for reconsideration. Respondent Judge
granted and set aside the order of dismissal. He de-
nied defendants’ motion for the reconsideration of his
order setting aside that dismissal order.
“The petitioners or the defendants below contend
in this certiorari case that the lower court has no ju-
risdiction to set aside the 1939 decree of probate and
the 1952 order of dismissal in Civil Case No. 696 and
that it acted with grave abuse of discretion In not
dismissing private respondent’s 1967 complaint.
“The issue is whether, under the facts set forth

above, the private respondents have a cause of action
for the ‘annulment’ of the will of Florentino Hitosis
and for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.
“We hold that the lower court committed a grave
abuse of discretion in reconsidering its order of dis-
missal and in ignoring the 1939 testamentary case
and the 1952 Civil Case No. 696 which is the same as
the instant 1967 case.
“A rudimentary knowledge of substantive law
and procedure is sufficient for an ordinary lawyer to
conclude upon casual perusal of the 1967 complaint
that it is baseless and unwarranted.
“What the plaintiffs seek is the ‘annulment’ of a
last will and testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an
action to recover the lands adjudicated to the defen-
dants by the same court in 1943 by virtue of the pro-
bated will, which action is a resuscitation of the com-
plaint of the same parties that the same court dis-
missed in 1952.
“It is evident from the allegations of the com-
plaint from defendants’ motion to dismiss that plain-
tiffs’ 1967 action is barred by res judicata, a double-
barreled defense, and by prescription, acquisitive and
extinctive, or by what are known in the jus civile and
the jus gentium as usucapio, longi temporis possessio
and praescriptio (See Ramos v. Ramos, L-19872, De-
cember 3, 1974, 61 SCRA 284).
“Our procedural law does not sanction an action
for the ‘annulment’ of a will. In order that a will may
take effect, It has to be probated, legalized or allowed
in the proper testamentary proceeding. The probate of
the will Is mandatory (Art. 838, Civil Code; sec. 1,
Rule 75, formerly sec. 1, Rule 76, Rules of Court;
Guevara vs. Guevara, 74 Phil. 479; Guevara vs.
Guevara, 98 Phil. 249).
“The testamentary proceeding is a special pro-
ceeding for the settlement of the testator’s estate. A
special proceeding is distinct and different from an

ordinary action (Secs. 1 and 2, Rule 2 and sec. 1,
Rule 72, Rules of Court).
“We say that the defense of res judicata, as
ground for the dismissal of plaintiffs’ 1967 complaint,
is a two-pronged defense because (1) the 1939 and
1943 decrees of probate and distribution in Special
Proceeding No. 3171 and (2) the 1952 order of dis-
missal in Civil Case No. 696 of the lower court consti-
tute bars by former judgment. Rule 39 of the Rules of
Court provides:
“ 'SEC. 49. Effect of judgments.—The ef-
fect of a judgment or final order rendered by a
court or judge of the Philippines, having juris-
diction to pronounce the judgment or order, may
be as follows:
“ ‘(a) In case of a judgment or order
against a specific thing, or in respect to the pro-
bate of a will or the administration of the estate
of a deceased person, or in respect to the per-
sonal, political, or legal condition or status of a
particular person or his relationship to another,
the judgment or order is conclusive upon the ti-
tle to the thing, the will or administration, or the
condition, status or relationship of the person:
however, the probate of a will or granting of let-
ters of administration shall only be prima facie
evidence of the death of the testator or intestate;
“ ‘(b) In other cases the judgment is, with
respect to the matter directly adjudged or as to
any other matter that could have been raised in
relation thereto, conclusive between the parties
and their successors in interest by title subse-
quent to the commencement of the action or
special proceeding, litigating of the same thing
and under the same title and in the same capac-
ity’;
xxx xxx xxx
“The 1939 decree of probate is conclusive as to
the due execution or formal validity of the will (Sec.
625, Act 190; sec. 1, Rule 76, now sec. 1, Rule 75,
Rules of Court; Last par. of Art. 838, Civil Code).
“That means that the testator was of sound and
disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or
undue influence; that the will was signed by him in
the presence of the required number of witnesses, and
that the will is genuine and not a forgery. Accordingly,
these facts cannot again be questioned in a subse-
quent proceeding, not even in a criminal action for the
forgery of the will. (3 Moran’s Comments on the Rules
of Court, 1970 Edition, p. 395; Manahan vs. Mana-
han, 58 Phil. 448).
“After the finality of the allowance of a will, the
issue as to the voluntariness of its execution cannot
be raised anymore (Santos vs. De Buenaventura, L-
22797, September 22, 1966, 18 SCRA 47).
“In Austria vs. Ventenilla, 21 Phil. 180, a ‘peti-
tion for annulment of a will’ was not entertained after
the decree of probate had become final. That case is
summarized as follows:
“ 'Wills; Probate; Alleged Fraudulent Will;
Appeal.—V. died. His will was admitted to pro-
bate without objection. No appeal was taken
from said order. It was admitted that due and
legal notice had been given to all parties. Fifteen
months after the date of said order, a motion
was presented in the lower court to have said
will declared null and void, for the reason that
fraud had been practiced upon the deceased in
the making of his will.
" ‘Held: That under section 625 of Act No.
190, the only time given parties who are dis-
pleased with the order admitting to probate a
will, for an appeal is the time given for appeals
in ordinary actions; but without deciding
whether or not an order admitting a will to pro-
bate will be opened for fraud, after the time al-
lowed for an appeal has expired, when no appeal
is taken from an order probating a will, the heirs
can not, in subsequent litigation in the same
proceedings, raise questions relating to its due

execution and as to the testamentary capacity of
the testator.’ (See Austria vs. Heirs of Ventenilla,
99 Phil. 1069).
“On the other hand, the 1943 decree of adjudi-
cation rendered by the trial court in the testate pro-
ceedings for the settlement of the estate of Florentino
Hitosis, having been rendered in a proceeding in rem,
is under the abovequoted section 49(a), binding upon
the whole world (Manalo vs. Paredes, 47 Phil. 938; In
re Estate of Johnson, 39 Phil. 156; De la Cema vs.
Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Re-
simann & Co., 68 Phil. 142).
“It is not only the 1939 probate proceeding that
can be interposed as res judicata with respect to pri-
vate respondents’ complaint. The 1952 order of dis-
missal rendered by Judge Manalac in Civil Case No.
696, a judgment in personam, was an adjudication on
the merits (Sec. 4, Rule 30, old Rules of Court). It
constitutes a bar by former judgment under the
aforequoted section 49(b) (Anticamara vs. Ong, L-
29689, April 14, 1978).
“The plaintiffs or private respondents did not
even bother to ask for the annulment of the testamen-
tary proceeding and the proceeding in Civil Case No.
696. Obviously, they realized that the final adjudica-
tions in those cases have the binding force of res judi-
cata and that there is no ground, nor is it timely, to
ask for the nullification of the final orders and judg-
ments in those two cases.
“It is a fundamental concept in the organization
of every jural system, a principle of public policy, that,
at the risk of occasional errors, judgments of courts
should become final at some definite date fixed by
law. Interest rei publicae utfinis sit litum The very ob-
ject for which the courts were constituted was to put
an end to controversies.’ (Dy Cay vs. Crossfield and
O’Brien, 38 Phil. 521; Penalosa vs. Tuason, 22 Phil.
303; De la Cema vs. Potot, supra).
“After the period for seeking relief from a final
relief or judgment under Rule 38 of the Rules of Court
has expired, a final judgment or order can be set

aside only on the grounds of (a) lack of jurisdiction or
lack of due process of law or (b) that the judgment
was obtained by means of extrinsic or collateral fraud.
In the latter case, the period for annulling the judg-
ment is four years from the discovery of fraud (2
Moran’s Comments on the Rules of Court, 1970 Edi-
tion, pp. 245-246; Mauricio vs. Villanueva, 106 Phil.
1159).
‘To hurdle over the obstacle of prescription, the
trial court, naively adopting the theory of plaintiffs’
counsel, held that the action for the recovery of the
lands had not prescribed because of the rule in article
1410 of the Civil Code, ‘that the action or defense for
the declaration of the inexistence of contract does not
prescribe,’ applies to wills.
“That ruling is a glaring error. Article 1410 can-
not possibly apply to last wills and testaments. The
trial court and plaintiffs’ counsel relied upon the case
of Dingle vs. Guillermo, 48 O.G. 4410, allegedly de-
cided by this Court, which cited the ruling in Tipton
vs. Velasco, 6 Phil. 67, that mere lapse of time cannot
give efficacy to void contracts, a ruling elevated to the
category of a codal provision in article 1410. The Din-
gle case was decided by the Court of Appeals. Even
the trial court did not take pains to verify the misrep-
resentation of plaintiffs counsel that the Dingle case
was decided by this Court. An elementary knowledge
of civil law could have alerted the trial court to the
egregious error of plaintiffs’ counsel in arguing that
article 1410 applies to wills.”
Specifically, Gallanosa enumerates what are covered by or

included in the term “formal validity” and therefore are conclu-
sively settled by a final decree of probate;
i. that the testator wasof sound
and disposing
mind;
ii. that his consent was not vitiated;
iii. that the will was signedby him
in the presence of
the required number of witnesses; and
iv. that the will is genuine.
Note: As to No. 3, it would be better to state it thus: “that

all the formal requirements of the law have been complied
with.” These formal requirements are those laid down in Arti-
cles 804-808, and 820-821 (if the will is an attested one) or
those provided in Articles 804 and 810-814 (if the will is holo-
graphic), and Articles 818-819.
Dorotheo vs. CA, 320 SCRA 12 [1999] also enumerates
what formal validity encompasses:
a) whether the will submitted is indeed the decedent’s
last will and testament;
b) compliance with the prescribed formalities for the
execution of wills;
c) testamentary capacity;
d) due execution of the will
Due execution means:
1) the testator’s sound and disposing mind;

2) freedom from vitiating factors (duress, menace,
undue influence);
3) will genuine, not forgery;

4) proper testamentary age;
5) the testator is not expressly prohibited by law from
making a will.
Another way of defining the scope of a final decree of pro-

bate is to refer to Article 839 (infra): objection to a will on any of
the grounds enumerated in that article is foreclosed by a final
decree of probate.
2. Exception to the rule: A decree of probate, therefore,
does not concern itself with the question of intrinsic
validity and the probate court should not pass upon
that issue. This general rule, however, “is not inflexi-
ble and absolute x x x . The probate of a will might
become an idle ceremony if on its face it appears to

be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court
should meet the issue.” (Nepomuceno vs. CA, 139
SCRA. 206 [1985], citing various cases). Or, as stated
in another case, “[s]ave in an extreme case where the
will on its face is intrinsically void, it is the probate
court’s duty to pass first upon the formal validity of
the will.” (Balanay v. Martinez, 64 SCRA 452 [1975])
Nepomuceno vs. Court of Appeals

139 SCRA 206 (1985)
GUTIERREZ, JR., J.:
xxx xxx xxx

Martin Jugo died on July 16, 1974 in Malabon,
Rizal. He left a last Will and Testament duly signed by
him at the end of the Will on page three and on the
left margin of pages 1, 2 and 4 thereof in the presence
of Celestina Alejandro, Myma C. Cortez, and Leandro
Leano, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2
and 4 of the Will in the presence of the testator and of
each other and the Notary Public Romeo Escareal by
the testator and his three attesting witnesses.
In the said Will, the testator named and ap-
pointed herein Sofia J. Nepomuceno as his sole and
only executor of his estate. It is clearly stated in the
Will that the testator was legally married to a certain
Rufina Gomez by whom he had two legitimate chil-
dren, Oscar and Carmelita, but since 1952, he had
been estranged from his lawfully wedded wife and had
been living with petitioner as husband and wife. In
fact, on December 5, 1952, the testator Martin Jugo
and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the
Peace. The testator devised to his forced heirs,
namely, his legal wife Rufina Gomez; and his children
Oscar and Carmelita his entire estate and the free
portion thereof to herein petitioner.
238 JOTTINGS AND JURISPRUDENCE ',Vrt-838
xxx xxx xxx

On August 21, 1974, the petitioner filed a peti-
tion for the probate of the last Will and Testament of
the deceased Martin Jugo xxx and asked for the is-
suance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator,
Rufina Gomez and her children filed an opposition al-
leging inter alia that the execution of the Will was
procured by undue and improper influence on the
part of the petitioner; that at the time of the execution
of the Will, the testator was already very sick and that
petitioner having admitted her living in concubinage
with the testator, she is wanting in integrity and thus
letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the
probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner
from December 1952 until his death on July 16,
1974, the Will’s admission to probate will be an idle
exercise because on the face of the Will, the invalidity
of its intrinsic provisions is evident.
The petitioner appealed to the respondent-
appellate court.
On June 2, 1982, the respondent court set aside
the decision of the Court of First Instance of Rizal de-
nying the probate of the Will. The respondent court
declared the Will to be valid except that the devise in
favor of the petitioner is null and void pursuant to Ar-
ticle 739 in relation with Article 1028 of the Civil Code
of the Philippines.
xxx xxx xxx
The main issue raised by the petitioner is
whether or not the respondent court acted in excess
of its jurisdiction when after declaring the last Will
and Testament of the deceased Martin Jugo validly
drawn, it went on to pass upon the intrinsic validity of
the testamentary provision in favor of herein peti-
tioner.
The petitioner submits that the validity of the

testamentary provision in her favor cannot be passed
upon and decided in the probate proceedings but in
some other proceedings because the only purpose of
the probate of a Will is to establish conclusively as
against everyone that a Will was executed with the
formalities required by law and that the testator has
the mental capacity to execute the same. The peti-
tioner further contends that even if the provisions of
paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nul-
lity could only be made by the proper court in a sepa-
rate action brought by the legal wife for the specific
purpose of obtaining a declaration of the nullity of the
testamentary provision in the Will in favor of the per-
son with whom the testator was allegedly guilty of
adultery or concubinage.
The respondents on the other hand contend that
the fact that the last Will and Testament itself ex-
pressly admits indubitably on its face the meretri-
cious relationship between the testator and the peti-
tioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of
the true civil status of the testator, which led private
respondents to present contrary evidence, merits the
application of the doctrine enunciated in Nuguid v.
Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay,
Jr. v. Hon. Antonio Martinez, et aL (G.R No. L-39247,
June 27, 1975). Respondents also submit that the ad-
mission of the testator of the illicit relationship between
him and the petitioner put in issue the legality of the
devise.
We agree with the respondents.
The respondent court acted within its jurisdic-
tion when after declaring the Will to be validly drawn,
it went on to pass upon the intrinsic validity of the
Will and declared the devise in favor of the petitioner
null and void.
The general rule is that in probate proceedings,
the court’s area of inquiry is limited to an examina-
tion and resolution of the extrinsic validity of the Will.
xxx xxx xxx

The rule, however, is not inflexible and absolute.
Given exceptional circumstances, the probate court is
not powerless to do what the situation constrains it to
do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the
trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving
forced heirs. A will of this nature, no matter how valid
it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrin-
sic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of
the will, the Court in Bcdanay, Jr. v. Martinez (64
SCRA 452) passed upon the validity of its intrinsic
provisions.
Invoking “practical considerations,” we stated:
“The basic issue is whether the probate court
erred in passing upon the intrinsic validity of the Will,
before ruling on its allowance or formal validity, and
in declaring it void.
“We are of the opinion that in view of certain
unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to
have been filed with the petitioner’s authorization),
the trial court acted correctly in passing upon the
will’s intrinsic validity even before its formal validity
had been established. The probate of a will might be-
come an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations de-
mand that the intrinsic validity of the will be passed
upon, even before it is probated, the court should
meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang v. Ramagosa, L-
23135, December 26, 1967, 21 SCRA 1369: Cacho v.
Udan, L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time
over the extrinsic validity of the Will. Both parties are
agreed that the Will of Martin Jugo was executed with

all the formalities required by law and that the testa-
tor had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the
respondent court when in resolving the question of
whether or not the probate court correctly denied the
probate of Martin Jugo’s last Will and Testament, it
ruled:
“This being so, the Will is declared validly
drawn.”
On the other hand the respondents pray for the
affirmance of the Court of Appeals’ decision in toto.
The only issue, therefore, is the jurisdiction of
the respondent court to declare the testamentary pro-
vision in favor of the petitioner as null and void.
We sustain the respondent court’s jurisdiction,
xxx xxx xxx

We see no useful purpose that would be served if
we remand the nullified provision to the proper court
in a separate action for that purpose simply because,
in the probate of a will, the court does not ordinarily
look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
“The following donations shall be void:
(1) Those made between persons who
were guilty of adultery or concubinage at the
time of the donation.
xxx xxx xxx
“The prohibitions mentioned in Article 739,
concerning donations inter vivos shall apply to
testamentary provisions.
In Article III of the disputed Will, executed on

August 15, 1968, or almost six years before the testa-
tor’s death on July 16, 1974, Martin Jugo stated that
respondent Rufina Gomez was his legal wife from
whom he had been estranged “for so many years.” He
also declared that respondent Carmelita Jugo and

Oscar Jugo were his legitimate children. In Article IV,
he stated that he had been living as man and wife
with the petitioner since 1952. Testator Jugo declared
that the petitioner was entitled to his love and affec-
tion. He stated that Nepomuceno represented Jugo as
her own husband but “in truth and in fact, as well as
in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my afore-
mentioned previous marriage.”
There is no question from the records about the
fact of a prior existing marriage when Martin Jugo
executed his will. There is also no dispute that the pe-
titioner and Mr. Jugo lived together in an ostensible
marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Mar-
tin Jugo and Sofia J. Nepomuceno contracted a mar-
riage before the Justice of the Peace of Victoria, Tar-
lac. The man was then 51 years old while the woman
was 48. Nepomuceno now contends that she acted in
good faith for 22 years in the belief that she was le-
gally married to the testator.
The records do not sustain a finding of inno-
cence or good faith. As argued by the private respon-
dents:
“First. The last will and testament itself ex-
pressly admits indubitably on its face the meretri-
cious relationship between the testator and petitioner,
the devisee.
“Second. Petitioner herself initiated the presen-
tation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respon-
dents to present contrary evidence.
“In short, the parties themselves dueled on the
intrinsic validity of the legacy given in the will to peti-
tioner by deceased testator at the start of the proceed-
ings.
“Whether or not petitioner knew that testator Mar-
tin Jugo, the man she had lived with as man and wife, as
already married was an important and specific issue
brought by the parties before the trial court, and passed

upon by the Court of Appeals.
“Instead of limiting herself to proving the extrin-

sic validity of the will, it was petitioner who opted to
present evidence on her alleged good faith in marrying
the testator.
xxx xxx xxx

Moreover, the prohibition in Article 739 of the
Civil Code is against the making of a donation be-
tween persons who are living in adultery or concubi-
nage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may re-
ceive. The very wordings of the Will invalidate the leg-
acy because the testator admitted he was disposing
the properties to a person with whom he had been liv-
ing in concubinage.
It seems, therefore, that, on the authority of Nepomuceno

and the cases there cited, a probate court may pass upon the
issue of intrinsic validity if on the face of the will, its intrinsic
nullity is patent.
ARTICLE 839. The will shall be disallowed in any of
the following cases:
(1) If the formalities required by law have not been
complied with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress,
or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of some
other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend
that the instrument he signed should be his will at the time
of affixing his signature thereto, (n)
I. 1. This is an exclusive enumeration of the causes for

disallowance of a will.
2. These are the matters involved in formal validity. In
relation to the Gallanosa case, supra, a probate decree once
final, forecloses any subsequent challenge on any of the mat-
ters enumerated in this article.
3. If any of these grounds for disallowance is proved,
the will shall be set aside as void.
A will is either valid or void. If none of the defects enumer-

ated in this article are present, it is valid; if any one of these
defects is present, the will is void. The issue of formal validity
or nullity is precisely what the probate proceedings will deter-
mine.
There is no such thing as a voidable will.
II. Re: (1)—The formalities referred to are those laid
down in Articles 804-814, 818-819, and 820-
821.
Re: (2)—Cf. Articles 798-801.
Re: (3)—Force: Cf. definition of force or violence
in contract law:
“Art. 1335. There is violence when in order to

wrest consent, serious or irresistible force is em-
ployed.”
Duress: Cf. definition of intimidation in contract law:

“Art. 1335. xxx There is intimidation when
one of the contracting parties is compelled by a rea-
sonable and well-grounded fear of an imminent and
grave evil upon his person or property, or upon the
person or property of his spouse, descendants or as-
cendants, to give his consent.
‘To determine the degree of intimidation, the

age, sex and condition of the person shall be borne in
mind.
“A threat to enforce one’s claim through compe-

tent authority, if the claim is just or legal, does not vi-
tiate consent.”
Re: (4)—Undue or improper pressure or influence:

Cf. definition of undue influence in contract law:
"Art. 1337. There is undue influence when a

person takes improper advantage of his power over
the will of another, depriving the latter of a reasonable
freedom of choice. The following circumstances shall
be considered: the confidential, family, spiritual and
other relations between the parties, or the fact that
the person alleged to have been unduly influenced
was suffering from mental weakness, or was ignorant
or in financial distress."
Re: (5)—Fraud—Cf. definition of fraud in contract

law:
“Art. 1338. There is fraud when, through insi-

dious words or machinations of one of the contracting
parties, the other is induced to enter into a contract
which, without them, he would not have agreed to.”
Re: (6)—Mistake—Cf. definition of mistake in con-

tact law:
“Art. 1331. In order that mistake may invali-

date consent, it should refer to the substance of the
thing which is the object of the contract, or to those
conditions which have principally moved one or both
parties to enter into the contract.
“Mistake as to the identity or qualifications of
one of the parties will vitiate consent only when such
identity or qualifications have been the principal
cause of the contract.
“A simple mistake of account shall give rise to its
correction.”
SECTION 2—INSTITUTION OF HEIR

ARTICLE 840. Institution of heir is an act by virtue
of which a testator designates in his will the person or per-
sons who are to succeed him in his property and transmis-
sible rights and obligations, (n)
The rules on institution of heir set forth in the provisions

of this Section, apply as well to institution of devisees and lega-
tees.
ARTICLE 841. A will shall be valid even though it

should not contain an institution of an heir, or such insti-
tution should not comprise the entire estate, and even
though the person so instituted should not accept the in-
heritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with and the re-
mainder of the estate shall pass to the legal heirs. (764)
ARTICLE 842. One who has no compulsory heirs may

dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.
One who has compulsory heirs may dispose of his es-
tate provided he does not contravene the provisions of this
Code with regard to the legitime of said heirs. (763a)
1. Even if the will does not contain any testamentary

disposition, it will be formally valid provided it complies with all
the formal requisites. Vide comments under Article 783 (Char-
acteristics of Wills, #10)
2. How much can be disposed of by will—
a) If the testator leaves no compulsory heirs—the
entire hereditary estate.
b) If the testator leaves compulsory heirs—the dispo-
sable portion; i.e., the net hereditary estate minus
the legitimes
The amount of the legitimes depends on the kinds

and number of compulsory heirs. Various combinations
are possible (Cf. the section on legitimes). Consequently,
the amount of the disposable portion is also variable.
3. If the testator disposes by will of less than he is al-
lowed to under 2(a) or 2(b), as the case may be—there will be
mixed succession; i.e., testamentary succession as to the part
disposed of by the will, and intestate succession as to the part
not disposed of by the will. The legitimes, of course, if there are
any, pass by strict operation of law.
ARTICLE 843. The testator shall designate the heir

by his name and surname, and when there are two persons
having the same names, he shall indicate some circum-
stance by which the instituted heir may be known.
Even though the testator may have omitted the name
of the heir, should he designate him in such manner that
there can be no doubt as to who has been instituted, the
institution shall be valid. (772)
ARTICLE 844. An error in the name, surname, or cir-

cumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with cer-
tainty the person instituted.
If, among persons having the same names and sur-
names, there is a similarity of circumstances in such a way
that, even with the use of other proof, the person instituted
cannot be identified, none of them shall be an heir. (773a)
Requirement for designation of heir—The sense of these

two articles is that the heir, legatee, or devisee must be identi-
fied in the will with sufficient clarity to leave no doubt as to the
testator’s intention. The basic rule in testamentary succession
always is respect for and compliance with the testator’s wishes.
A. The designation of name and surname is directory.

What is required is that the identity of the designated succes-
sor be sufficiently established. This is most usually done by
giving the name and surname, but there are other ways, as can
be gleaned from Article 843, par. 2.
Example: “I designate as heir to one-eighth of my estate

my eldest first cousin.”
B. If there is any ambiguity in the designation (as in Arti-

cle 844, par. 2), the ambiguity should be resolved in accor-
dance with Article 789.
If It is not possible to resolve the ambiguity, the testator’s
intent becomes indeterminable and, therefore, intestacy as to
that portion will result. (Art. 844, par. 2).
ARTICLE 845. Every disposition in favor of an un-

known person shall be void, unless by some event or cir-
cumstance his identity becomes certain. However, a dispo-
sition in favor of a definite class or group of persons shall
be valid. (750a)
I. Unknown person—
1. This refers to a successor whose identity cannot be
determined because the designation in the will is
so unclear or so ambiguous as to be incapable of
resolution.
Example: “I designate as heir to one-fourth of my
estate a fiction writer.”
2. This does not refer to one with whom the testator
is not personally acquainted. The testator may in-
stitute somebody who is a perfect stranger to him,
provided the identity is clear.
ARTICLE 846. Heirs instituted without designation of

shares shall inherit in equal parts. (765)
I. The general presumption in cases of collective designa-

tion is equality. If the testator intends an unequal apportion-
ment, he should so specify.
II. Needless to say, this article will apply only in testa-
mentary succession, that is to say, only among testamentary
heirs as such (or devisees or legatees). It will not apply to an
heir who is both a compulsory and a testamentary heir, for in
that case the heir will get his legitime and his testamentary
portion (Cf. Art. 1062).
Example: X, the testator, in his will institutes to one-
fourth of his estate the following: A (his son), B (his cousin),
and C (his friend). A, being Xs compulsory heir, will get his le-
gitime plus one-third of the one-fourth given by will. As testa-
mentary heir, A gets a share equal to those of B and C, but
since A is also a compulsory heir, and is entitled to his legitime
over and above his testamentary share, he will end up getting a
larger slice of Xs estate than B or C.
III. Not explicitly covered by this article is an instance

where the shares of some of the heirs are designated and those
of others are not.
Example: “I institute to one-fourth of my estate A, B, C,
and D, of which portion A is to get one-third, and B is to get
one-fourth.” The shares of C and D are unspecified. How much
are they to get? Are they to divide equally the remaining portion
of the one-fourth of the estate, after deducting A’s and B’s por-
tions (The remainder is 5/12 of 1/4)?
ARTICLE 847. When the testator institutes some

heirs individually and others collectively as when he says, ‘I
designate as my heirs A and B, and the children of C,’ those
collectively designated shall be considered as individually
instituted, unless it clearly appears that the intention of
the testator was otherwise. (769a)
Equality and Individuality of designation—This follows the

basic rule of equality in the previous article. In addition, this
article establishes the presumption that the heirs collectively
referred to are designated per capita along with those separately
designated.
If the testator intends a block designation, he should so
specify.
(It may be noted, amusingly, that, to the author’s knowl-
edge, this is the only article in the Code which contains an ex-
ample. This article is hardly a model for codification.)
ARTICLE 848. If the testator should institute his

brothers and sisters, and he has some of full blood and oth-
ers of half blood, the inheritance shall be distributed
equally unless a different intention appears. (770a)
I. 1. This article follows the general rule of equality laid
down in Article 846.
2. If the testator intends an unequal apportionment,
he should so specify.
II. Different rule in intestacy—It should be borne in mind
that this article refers only to testamentary succession.
In intestacy, the rule is different: The applicable provision
is Article 1006, which establishes a proportion of 2:1 between
full- and half-blood brothers and sisters (without prejudice to
the rule prohibiting succession ab intestato between legitimate
and illegitimate siblings. [Article 992]).
III. Recapitulation:
A. In testamentary succession—equality of shares of
full- and half-blood brothers and sisters, unless the
testator provides otherwise (Article 848)
B. In intestacy—Proportion of 2:1 between full- and
half-blood brothers and sisters (Article 1006), and
only if the disqualification in Article 992 does not
apply
Quaerendum. Does Article 848 apply even to illegitimate
brothers and sisters, in cases where the testator is of legitimate
status and vice-versa? It seems so, because Article 848 makes
no distinction. Ubi lex non disttnguit, nec nos distinguere debe-
mus.
ARTICLE 849. When the testator calls to the suces-

sion a person and his children, they are all deemed to have
been instituted simultaneously and not successively. (771)
This article lays down the same rule as Articles 846 and
847. Equality and individuality of institution are presumed. If
the testator desires a different mode of apportionment, he

should so specify.
ARTICLE 850. The statement of a false cause for the
institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not
have made such institution if he had known the falsity of
such cause. (767a)
I. General rule—The falsity of the stated cause for the
testamentary institution does not affect the validity or efficacy
of the institution.
Reason for general rule—Testamentary dispositions are ul-
timately based on liberality.
II. Exception—The falsity of the stated cause for institu-
tion will set aside the institution, if certain factors are present.
Austria vs. Reyes
31 SCRA 754 (1970)
CASTRO, J.:
“On July 7, 1956 Basilia Austria vda. de Cruz

filed with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante mortem,
of her last will and testament. The probate was op-
posed by the present petitioners Ruben Austria, Con-
suelo Austria-Benta and Lauro Austria Mozo, and still
others who, like the petitioner, are nephews and
nieces of Basilia. This opposition was, however, dis-
missed and the probate of the will allowed after due
hearing.
“The bulk of the estate of Basilia, admittedly,

was destined under the will to pass on to the respon-
dents Perfecto Cruz, Benita Cruz-Menez, Isagani
Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of
whom had been assumed and declared by Basilia as
her own legally adopted children.
“On April 23, 1959, more than two years after

her will was allowed to probate, Basilia died. The re-
spondent Perfecto Cruz was appointed executor with-

out bond by the same court in accordance with the
provisions of the decedent’s will, notwithstanding the
blocking attempt pursued by the petitioner Ruben
Austria.
“Finally, on November 5, 1959, the present peti-
tioners filed in the same proceedings a petition in in-
tervention for partition alleging in substance that they
are the nearest of kin of Basilia, and that the five re-
spondents Perfecto Cruz, et al., had not in fact been
adopted by the decedent in accordance with law, in
effect, rendering these respondents mere strangers to
the decedent and without any right to succeed as
heirs.
xxx xxx xxx
“xxx the contending sides debated the matter of
authenticity or lack of it of the several adoption pa-
pers produced and presented by the respondents. On
motion of the petitioners Ruben Austria, et al., these
documents were referred to the National Bureau of
Investigation for examination and advice. N.B.I. report
seems to bear out the genuineness of the documents,
but the petitioners, evidently dissatisfied with the re-
sults, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose
views undermine the authenticity of the said docu-
ments. The petitioners Ruben Austria, et al., thus
moved the lower court to refer the adoption papers to
the Philippine Constabulary for further study. The pe-
titioner likewise located former personnel of the court
which appeared to have granted the questioned adop-
tion, and obtained written depositions from two of
them denying any knowledge of the pertinent adop-
tion proceedings.
xxx xxx xxx
“The uncontested premises are clear. Two inter-
ests are locked in dispute over the bulk of the estate
of the deceased. Arrayed on one side are the petition-
ers Ruben Austria, Consuelo Austria-Benta and Lauro
Austria Mozo, three of a number of nephews and
nieces who are concededly the nearest surviving blood
relatives of the decedent. On the other side are the re-

spondents brothers and sisters, Perfecto Cruz, Alberto
Cruz and Luz Cruz-Salonga, all of whom heirs in the
will of the deceased Basilia, and all of whom claim
kinship with the decedent by virtue of legal adoption.
At the heart of the controversy is Basilia’s last will—
immaculate in its intrinsic validity since it bears the
imprimatur of duly conducted probate proceedings.
“The complaint in intervention filed in the lower
court assails the legality of the tie which the respon-
dent Perfecto Cruz and his brothers and sisters claim
to have with the decedent. The lower court had, how-
ever, assumed, by its orders in question, that the va-
lidity or invalidity of the adoption is not material nor
decisive on the efficacy of the institution of heirs; for,
even if the adoption in question were spurious, the re-
spondents Perfecto Cruz, et al., will nevertheless suc-
ceed not as compulsory heirs but as testamentary
heirs instituted in Basilia’s will. This ruling apparently
finds support in article 842 of the Civil Code which
reads:
“ 'One who has no compulsory heirs may
dispose of by will all his estate or any part of it
in favor of any person having capacity to suc-
ceed.
“ ‘One who has compulsory heirs may dis-
pose of his estate provided he does not contra-
vene the provisions of this Code with regard to
the legitime of said heirs.’
“The lower court must have assumed that since
the petitioners’ nephews and nieces are not compul-
sory heirs, they do not possess that interest which
can be prejudiced by a free-wheeling testamentary
disposition. The petitioners’ interest is confined to
properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can
take place and the question of the veracity of the
adoption acquires relevance.
“The petitioners’ nephews and nieces, upon the
other hand, insist that the entire estate should de-
scend to them by intestacy by reason of the intrinsic
nullity of the institution of heirs embodied in the de-

cedent’s will. They have thus raised squarely the issue
of whether or not such institution of heirs would re-
tain efficacy in the event there exists proof that the
adoption of the same heirs by the decedent is false.
“The petitioners cite, as the controlling rule, Ar-
ticle 850 of the Civil Code which reads:
“The statement of a false cause for the institu-
tion of an heir shall be considered as not written,
unless it appears from the will that the testator would
not have made such institution if he had known the
falsity of such cause.’
“Coming closer to the center of the controversy,
the petitioners have called the attention of the lower
court and this Court to the following pertinent por-
tions of the will of the deceased which recite:
“ ‘III
“‘Ang aking mga sapilitang tagapagmana

(herederos Jorzosos) ay ang aking itmuturing na
mga anak na tunay (Hijos legalmente adoptados)
na sina Perfecto, Alberto, Luz, Benita at Isagani,
na pawang may apelyidong Cruz.
“ ‘x x x
“‘Kung ako ay bawian ng Dios ng buhay, ay
aking ipinamamana ang aking mga ari-ariang
maiiwan, sa kaparaanang sumusunod:
“‘A.—Aking ipinamamana sa aking nabang-
git na limang anak na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong
Cruz, na parepareho ang kaparti ng bawat isa at
walang lamangan (en partes iguales), bilang
kanilang sapilitang mana (legiti[maj), ang kalahati
(1/2) ng aking kaparti sa lahat ng aming ari-
ariang gananciales ng aking yumaong asawang
Pedro Cruz na napapaloob sa Actuacion Especial
No. 640 ng Hukumang Unang Dulugan ng Rizal at
itinutukoy sa No. 1 ng parafo IV ng testamentong
ito, ang kalahati (1/2) ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na
namana ko sa aking yumaong ama na si Calixto

Austria, at ang kalahati (1/2) ng Hang lagay na
lupa na nasa Tinejeros, Malabon, Rizal, na aking
namana sa yumao kong kapatid na si Fausto
Austria’
“The tenor of the language used, the petitioners
argue, gives rise to the inference that the late Basilia
was deceived into believing that she was legally bound
to bequeath one-half of her entire estate to the re-
spondents Perfecto Cruz, et al., as the latter’s legitime.
The petitioners further contend that had the deceased
known the adoption to be spurious, she would not
have instituted the respondents at all—the basis of
the institution being solely her belief that they were
compulsory heirs. Proof therefore of the falsity of the
adoption would cause a nullity of the institution of
heirs and the opening of the estate wide to intestacy.
Did the lower court then abuse its discretion or act in
violation of the rights of the parties in barring the pe-
titioners nephews and niece from registering their
claim even to properties adjudicated by the decedent
in her will?
"Before the institution of heirs may be annulled
under article 850 of the Civil Code, the following req-
uisites must concur: First, the cause for the institu-
tion of heirs must be stated in the will; second, the
cause must be shown to be false: and, third, it must
appear from the face of the will that the testator
would not have made such institution if he had
known the falsity of the cause.
“The petitioners would have us imply, from the
use of the terms, ‘sapilitang tagapagmana’ (compul-
sory heirs) and ‘sapilitang mana’ (legitime), that the
impelling reason or cause for the institution of the re-
spondents was the testatrix’s belief that under the law
she could not do otherwise. If this were indeed what
prompted the testatrix in instituting the respondents,
she did not make it known in her will. Surely, if she
was aware that succession to the legitime takes place
by operation of law, independent of her own wishes,
she would not have found it convenient to name her
supposed compulsory heirs to their legitimes. Her ex-
press adoption of the rules on legitimes should very

well indicate her complete agreement with that statu-
tory scheme. But even this, like the petitioners’ own
proposition, is highly speculative of what was in the
mind of the testatrix when she executed her will.
“One fact prevails, however, and it is that the
decedent’s will does not state in a specific or un-
equivocal manner the cause for such institution of
heirs. We cannot annul the same on the basis of
guesswork or uncertain implications.
“And even if we should accept the petitioners’
theory that the decedent instituted the respondents
Perfecto Cruz, et al., solely because she believed that
the law commanded her to do so, on the false as-
sumption that her adoption of these respondents was
valid, still such institution must stand.
“Article 850 of the Civil Code, quoted above, is a
positive injunction to ignore whatever false cause the
testator may have written in his will for the institution
of heirs. Such institution may be annulled only when
one is satisfied, after an examination of the will, that
the testator clearly would not have made the institu-
tion if he had known the cause for it to be false. Now,
would the late Basilia have caused the revocation of
the institution of heirs if she had known she was mis-
taken in treating these heirs as her legally adopted
children? Or would she have instituted them nonethe-
less?
“The decedent’s will, which alone should provide
the answer, is mute on this point or at best is vague
and uncertain. The phrases ‘mga sapilitang tagapag-
mana' and ‘sapilitang mana,' were borrowed from the
language of the law on succession and were used, re-
spectively, to describe the class of heirs instituted and
the abstract object of the inheritance. They offer no
absolute indication that the decedent would have
willed her estate other than the way she did if she had
known that she was not bound by law to make allow-
ance for legitimes. Her disposition of the free portion
of her estate (fibre disposicion) which largely favored
the respondent Perfecto Cruz, the latter’s children,
and the children of the respondent Benita Cruz,

shows a perceptible inclination on her part to give to
the respondents more than what she thought the law
enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had
left for her blood relatives, including the petitioners
Consuelo Austria-Benta and Lauro Mozo and the
children of the petitioner Ruben Austria. Were we to
exclude the respondents Perfecto Cruz, et al. from the
inheritance, then the petitioners and the other neph-
ews and nieces would succeed to the bulk of the es-
tate by intestacy—a result which would subvert the
clear wishes of the decedent.
“Whatever doubts one entertains in his mind
should be swept away by these explicit injunctions in
the Civil Code: The words of a will are to receive an
interpretation which will give to every expression
some effect, rather than one which will render any of
the expressions inoperative: and of two modes of in-
terpreting a will, that is to be preferred which will pre-
vent intestacy.’
‘Testacy is favored and doubts are resolved on
its side, especially where the will evinces an intention
on the part of the testator to dispose of practically his
whole estate, as was done in this case. Moreover, so
compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to pre-
vail: that we could even vary the language of the will
for the purpose of giving it effect. A probate court has
found, by final judgment, that the late Basilia Austria
Vda. de Cruz was possessed of testamentary capacity,
and her last will executed free from falsification,
fraud, trickery or undue influence. In this situation, it
becomes our duty to give full expression to her will.”
Exceptionally, therefore, the falsity of the cause will annul

the institution if the three requisites enumerated in Austria
concur.
III. Correlation—This article does not restrict the opera-

tion of Article 1028 in relation to Article 739 declaring void cer-
tain testamentary dispositions, by reason of public policy. The

annulling factor in those two articles is not falsity but illegality.
ARTICLE 851. If the testator has instituted only one

heir, and the institution is limited to an aliquot part of the
inheritance, legal succession takes place with respect to
the remainder of the estate.
The same rule applies, if the testator has instituted
several heirs each being limited to an aliquot part, and all
the parts do not cover the whole inheritance, (n)
I. The wording of this article is erroneous (or, as Tolentino

kindly puts it), inaccurate. Legal succession does not take place
with respect to the remainder of the estate, but to the remainder
of the disposable portion. There may, after all, be compulsory
heirs whose legitimes will therefore cover part of the estate; the
legitimes do not pass by legal or intestate succession.
The article should thus be worded:
“Art. 851. If the testator has instituted only

one heir, and the institution is limited to an aliquot
part of the inheritance less than the entire disposable
portion, legal succession takes place with respect to
the remainder of the disposable portion.
“The same rule applies, if the testator has
instituted several heirs, each being limited to an
aliquot part, and all the parts do not cover the
whole disposable portion.”
II. This article states exactly the same rule laid down in
Article 841. There is absolutely no need for the redundancy.
ARTICLE 852. If it was the intention of the testator

that the instituted heirs should become sole heirs to the
whole estate, or the whole free portion, as the case may be,
and each of them has been instituted to an aliquot part of
the inheritance and their aliquot parts together do not
cover the whole inheritance, or the whole free portion, each
part shall be increased proportionally, (n)
ARTICLE 853. If each of the instituted heirs has been

given an aliquot part of the inheritance, and the parts to-
gether exceed the whole inheritance, or the whole free por-
tion, as the case may be, each part shall be reduced propor-
tionally. (n)
I. In both articles: (1) there are more than one insti-
tuted heir, (2) the testator intended them to get the whole es-
tate or the whole disposable portion, as the case may be, and
(3) the testator has designated a definite portion for each heir.
1. In Article 852, the total of all the portions is less
than the whole estate (or the whole disposable por-
tion). Therefore, a proportionate increase is neces-
sary.
The difference cannot pass by intestacy because the testa-

tor’s intention is clear to give the instituted heirs the entire
amount.
2. In Article 853, the reverse occurs: the total exceeds
the whole estate (or the whole disposable portion).
Thus, a proportionate reduction must be made.
Examples of Article 852:

1. X dies without any compulsory heirs but leaves a
will containing the following disposition: “I insti-
tute A, B, and C to my entire estate in the follow-
ing proportions: A-l/2; B-l/3; C-l/8.” At the
time of his death, X’s estate is valued at
P600.000.
The total of the specified portions is only 23/24. A propor-
tionate increase should be made.
Per the proportions specified in the will:
A = 300,000
B = 200,000
C = 75,000
575,000
To find A’s increased share:

x = A’s increased share
300,0 x
575,0 600,000
575x 180,000,000
X 180,000,000/575
X 313,043.48
To find B’s increased share:

x = B’s increased share
200,0 x
575,0 600,000
575 x 120,000,000
x 120,000,000/575
x 208,695.65
To find C’s increased share:

x = C’s increased share
75,0 x
575,0 600,000
575x 45,000,000
x 45,000,000/575
x 78,260.87
Of X’s P600,000 estate, then, the sharings will be:
A = 313,043.48
B=
208,695.65
C = 78,260.87
2. X dies with Y (a legitimate child) as his only com-
pulsory heir. X leaves a will stating: “I give A, B,
and C the entire disposable portion (1/2) of my es-
tate, such that A is to get 1/4 of the estate; B, 1/8
thereof; and C 1/12 thereof.” X’s net estate is
worth P600,000.
The total of the specified portions is only 11/24, making a

proportionate increase necessary.
A = 150,000
B = 75,000
C = 50,000
275,000
To find A’s increased share:
x = A’s increased share
150,0 x
275,0 300,000
275x 45,000,000
x 45,000,000/275
X 163,636.36
To find B’s increased share:

x = B’s increased share
75,000 x
275,00 300.000
0 22.500.0
275x 22,500,000/275
X 81,818.19
X
To find C’s increased share:

x = C’s increased share
50,000 x
275,000 300,000
275x 15.0. 000
X 15.0. 000/275
X 54,545.45
Of X’s P600.000 estate, then, the sharings will be:

Y = 300,000 (his legitime)
A = 163,636.19
B= 81,818.19
C= 54,545.45
Examples of Article 853:

1. A dies without any compulsory heirs but leaves a
will containing the following disposition: “I insti-
tute A, B, and C to my entire estate in the follow-
ing proportions: A-l/2; B-l/3; C-l/4.” At the
time of his death, X’s net estate is valued at
P600.000.
The total of the specified portions is 13/12; obviously,
proportionate reductions have to be made.
A = 300,000
B = 200,000
C = 150,000
650,000
To find A’s reduced share:

x = A’s reduced share
300,0 x
650,0 600,000
650 x 180,000,000
x 180,000,000/650
x 276,923.08
To find B’s reduced share:

x = B’s reduced share
200,000 x
650,0 600,000
650 x 120,000,000
x 120,000,000/650
x 184,615.38
To find C’s reduced share:

x = C’s reduced share
150,0 x
650,0 600,000
650 x 90,000,000
x 90,000,000/650
x 138,461.54
A = 276,923.08
B = 184,615.38
C = 138,461.54
2. X dies with Y (a legitimate child) as his only com-

pulsory heir. X leaves a will stating: “I give A, B,
and C the entire disposable portion (1/2) of my es-
tate, such that A is to get 1/4 of the estate; B, 1/6
thereof; and C, 1/8 thereof.” Xs net estate is worth
P600.000.
The total of the specified portions is 13/24 (more than the
1/2 available), and a proportionate reduction is necessary.

A = 150,000
B = 100,000
C = 75,000
325,000
To find A’s reduced share:
x = A’s reduced share
150,0 x
325.0 300,000
325x 45,000,000
x 45,000,000/325
x 138,461.54
To find B’s reduced share:
x = B’s reduced share
100.0 x
325,0 30,000
325x 30,000
x 30,000/325
x 92,307.69
To find C’s reduced share:
x = C’s reduced share
75,0 x
325,0 300,000
325x 22,500,000
x 22,500,000/325
x 69,230.77
Y = 300,000 (his legitime)

A= 138,461.54
B= 92,307.69
C= 69,230.77
ARTICLE 854. The preterition or omission of one,

some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or
born after the death of the testator, shall annul the insti-
tution of heir; 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 preju-
dice to the right of representation. (814a)
I. Preterition: concept and definition—Preterition means

omission. But omission from what? The answer to that question
is the basic problem in preterition.
Manresa’s definition can be misleading: “Preterition con-
sists in the omission of an heir in the will, either because he is
not named, or, although he is named as a father, son, etc., he
is neither instituted as an heir nor expressly disinherited, nor
assigned any part of the estate, thus being tacitly deprived of
his right to the legitime.” (6 Manresa, 7th ed. 1951, p. 424)
Castan’s definition is basically the same: “By preterition is
meant the omission in the will of any of the compulsory heirs,
without being expressly disinherited. It is thus a tacit depriva-
tion of the legitime, as distinguished from disinheritance, which
is an express deprivation.” (4 Castan, 6th ed., 1944, p. 576).
II. Omission that Constitutes Preterition:

A. If the heir in question is instituted in the will but
the portion given to him by the will is less than his
legitime—There is no preterition.
Reyes vs. Barretto-Datu
19 SCRA 85 (1967)
REYES, J.B.L., J.:
xxx xxx xxx

It appears that Bibiano Barretto was married to
Marla Gerardo. During their lifetime they acquired a
vast estate, consisting of real properties in Manila,
Pampanga, and Bulacan. xxx.
When Bibiano Barretto died on February 18,
1936, in the City of Manila, he left his share of these
properties in a will to Salud Barretto, mother of plain-
tiffs wards, and Lucia Milagros Barretto and a small

portion as legacies to his two sisters Rosa Barretto
and Felisa Barretto and his nephew and nieces. The
usufruct of the fishpond situated in barrio San
Roque, Hagonoy, Bulacan, above-mentioned, however,
was reserved for his widow, Maria Gerardo. In the
meantime, Maria Gerardo was appointed administra-
trix. By virtue thereof, she prepared a project of parti-
tion, which was signed by her in her own behalf and
as guardian of the minor Milagros Barretto. Said pro-
ject of partition was approved by the Court of First In-
stance of Manila on November 22, 1939. The distribu-
tion of the estate and the delivery of the shares of the
heirs followed forthwith. As a consequence, Salud
Barretto took immediate possession of her share and
secured the cancellation of the original certificates of
title and the issuance of new titles in her own name.
Everything went well since then. Nobody was
heard to complain of any irregularity in the distribu-
tion of the said estate until the widow, Maria Gerardo
died on March 5, 1948. Upon her death, it was dis-
covered that she had executed two wills, in the first of
which, she instituted Salud and Milagros, both sur-
named Barretto, as her heirs; and in the second, she
revoked the same and left all her properties in favor of
Milagros Barretto alone. Thus, the later will was al-
lowed and the first rejected. In rejecting the first will
presented by Tirso Reyes, as guardian of the children
of Salud Barretto, the lower court held that Salud was
not the daughter of the decedent Maria Gerardo by
her husband Bibiano Barretto. This ruling was ap-
pealed to the Supreme Court, which affirmed the
same.
Having thus lost this fight for a share in the es-
tate of Maria Gerardo, as a legitimate heir of Maria
Gerardo, plaintiff now falls back upon the remnant of
the estate of the deceased Bibiano Barretto, which
was given in usufruct to his widow Maria Gerardo,
Hence, this action for the recovery of one-half portion,
thereof.
This action afforded the defendant an opportu-
nity to set up her right of ownership, not only of the
fishpond under litigation, but of all the other proper-

ties willed and delivered to Salud Barretto, for being a
spurious heir, and not entitled to any share in the es-
tate of Bibiano Barretto, thereby directly attacking the
validity, not only of the project of partition, but of the
decision of the court based thereon as well.
The defendant contends that the Project of Parti-
tion from which Salud acquired the fishpond in ques-
tion is void ab initio and Salud Barretto did not ac-
quire any valid title thereto, and that the court did not
acquire any jurisdiction of the person of the defen-
dant, who was then a minor.
Finding for the defendant (now appellee), Milagros
Barretto, the lower court declared the project of partition
submitted in the proceedings for the settlement of the es-
tate of Bibiano Barretto xxx to be null and void ab initio
(not merely voidable) because the distributee, Salud Bar-
retto, predecessor of plaintiffs (now appellants), was not a
daughter of the spouses Bibiano Barretto and Maria
Gerardo. The nullity of the project of partition was de-
creed on the basis of Article 1081 of the Civil Code of
1889 (then in force) providing as follows:
“A partition in which a person was believed
to be an heir, without being so, has been in-
cluded, shall be null and void.”
The court a quo further rejected the contention
advanced by plaintiffs that since Bibiano Barretto was
free to dispose of one-third (1/3) of his estate under
the old Civil Code, his will was valid in favor of Salud
Barretto (nee Lim Boco) to the extent, at least, of such
free part. And it concluded that, as defendant Mi-
lagros was the only true heir of Bibiano Barretto, she
was entitled to recover from Salud, and from the lat-
ter’s children and successors, all the properties re-
ceived by her from Bibiano’s estate, in view of the pro-
visions of Article 1456 of the new Civil Code of the
Philippines establishing that property acquired by
fraud or mistake is held by its acquirer in implied
trust for the real owner. Hence, as stated at the be-
ginning of this opinion, the Court a quo not only dis-
missed the plaintiffs complaint but ordered them to
return the properties received under the project of

partition previously mentioned as prayed for In defen-
dant Milagros Barretto’s counterclaim. However, it
denied defendant’s prayer for damages. Hence, this
appeal interposed by both plaintiffs and defendant.
Plaintiff-appellants correctly point out that Arti-
cle 1081 of the old Civil Code has been misapplied to
the present case by the court below. The reason is ob-
vious: Salud Barretto admittedly had been instituted
heir in the late Bibiano Barretto’s last will and testa-
ment together with defendant Milagros; hence, the
partition had between them could not be one such
had with a party who was not believed to be an heir
without really being one, and was not null and void
under said Article. The legal precept (Article 1081)
does not speak of children, or descendants, but of
heirs (without distinction between forced, voluntary or
intestate ones), and the fact that Salud happened not
to be a daughter of the testator does not preclude her
being one of the heirs expressly named in his testa-
ment; for Bibiano Barretto was at liberty to assign the
free portion of his estate to whomsoever he chose.
While the share (1/2) assigned to Salud impinged on
the legitime of Milagros, Salud did not for that reason
cease to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in
her father’s will a share smaller than her legitime in-
validate the institution of Salud as heir, since there
was here no preterition, or total omission, of a forced
heir. For this reason, Neri vs. Akutin, 72 Phil. 322, in-
voked by appellee, is not at all applicable, that case
involving an instance of preterition or omission of
children of the testator's former marriage.
xxx xxx xxx
Wherefore, the decision of the Court of First In-
stance of Bulacan now under appeal is reversed and
set aside in so far as it orders plaintiff-appellant to re-
convey to appellee Milagros Barretto-Datu the proper-
ties enumerated in said decision, and the same is af-
firmed in so far as it denies any right of said appellee
to accounting.
In the Reyes case:

1. there was a compulsory heir in the direct line;
2. such heir was instituted in the will;
3. the testamentary disposition given to such heir was
less than her legitime.
Based on these, the holding was that there was no preteri-
tion.
Reason for holding: There was no total omission, inas-
much as the heir received something from the inheritance. The
heir’s remedy is not found in Article 854 but in Articles 906
and 907, for completion of legitime:
“Art. 906. Any compulsory heir to whom the
testator has left by any title less than the legitime be-
longing to him may demand that the same may be
fully satisfied.”
“Art. 907. Testamentary dispositions that im-

pair or diminish the legitime of the compulsory heirs
shall be reduced on petition of the same, insofar as
they may be inofficious or excessive.”
B. If the heir is given a legacy or devise—There is no

preterition.
Aznar vs. Duncan
17 SCRA 590 (1966)
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California

with domicile in the Philippines, died leaving a will
executed on March 5, 1951. The will was admitted to
probate by the Court of First Instance of Davao in its
decision of February 28, 1954. In that same decision
the court declared that Maria Helen Christensen Gar-
cia (hereinafter referred to as Helen Garcia) was a
natural child of the deceased. The declaration was
appealed to this Court, and was affirmed in its deci-
sion of February 14, 1958.
In another incident relative to the partition of

the deceased’s estate, the trial court approved the
project submitted by the executor in accordance with
the provisions of the will, which said court found to be
valid under the law of California. Helen Garcia ap-
pealed from the order of approval, and this Court, on
January 31, 1963, reversed the same on the ground
that the validity of the provisions of the will should be
governed by Philippine law, and returned the case to
the lower court with instructions that the partition be
made as provided by said law.
On October 29, 1964, the Court of First Instance
of Davao issued an order approving the project of par-
tition submitted by the executor, dated June 30,
1964, wherein the properties of the estate were di-
vided equally between Maria Lucy Christensen Dun-
can (named in the will as Maria Lucy Christensen
Daney, and hereinafter referred to as merely Lucy
Duncan), whom the testator had expressly recognized
in his will as his daughter (natural) and Helen Garcia,
who had been judicially declared as such after his
death. The said order was based on the proposition
that since Helen Garcia had been preterited in the will
the institution of Lucy Duncan as heir was annulled,
and hence the properties passed to both of them as if
the deceased had died intestate, saving only the lega-
cies left in favor of certain other persons, which lega-
cies have been duly approved by the lower Court and
distributed to the legatees.
The case is once more before us on appeal, this
time by Lucy Duncan, on the sole question of whether
the estate, after deducting the legacies, should pertain
to her and to Helen Garcia in equal shares, or
whether the inheritance of Lucy Duncan as instituted
heir should be merely reduced to the extent necessary
to cover the legitime of Helen Garcia, equivalent to
1/4 of the entire estate.
xxx xxx xxx
The trial court ruled, and appellee now main-
tains, that there has been preterition of Helen Garcia,
a compulsory heir in the direct line, resulting in the
annulment of the institution of heir pursuant to Arti-

cle 854 of the Civil Code.
xxx xxx xxx
On the other hand, appellant contends that this
is not a case of preterition, but is governed by Article
906 of the Civil Code, which says: “Any compulsory
heir to whom the testator has left by any title less
than the legitime belonging to him may demand that
the same be fully satisfied.” Appellant also suggests
that considering the provisions of the will whereby the
testator expressly denied his relationship with Helen
Garcia, but left to her a legacy nevertheless, although
less than the amount of her legitime, she was in effect
defectively disinherited within the meaning of Article
918.
xxx xxx xxx
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 insti-
tuting him as heir without disinheriting him ex-
pressly, nor assigning to him some part of the proper-
ties.
xxx xxx xxx
Manresa cites particularly three decisions of the
Supreme Court of Spain dated January 16, 1895,
May 25, 1917, and April 23, 1932, respectively. In
each one of those cases the testator left to one who
was a forced heir a legacy worth less than the le-
gitime, but without referring to the legatee as an heir
or even as a relative, and willed the rest of the estate
to other persons. It was held that Article 815 applied,
and the heir could not ask that the institution of heirs
be annulled entirely, but only that the legitime be
completed. (6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in conso-
nance with the expressed wishes of the testator in the
present case as may be gathered veiy clearly from the
provisions of his will. He refused to acknowledge
Helen Garcia as his natural daughter, and limited her
share to a legacy of P3,600.00. The fact that she was
subsequently declared judicially to possess such

status is no reason to assume that had the judicial
declaration come during his lifetime his subjective at-
titude towards her would have undergone any change
and that he would have willed his estate equally to
her and to Lucy Duncan, who alone was expressly
recognized by him.
The decision of this Court in Neri, et al. v.
Akutin, 74 Phil. 185, is cited by appellees in support
of their theoiy of preterition. That decision is not here
applicable, because it referred to a will where “the tes-
tator left all his property by universal title to the chil-
dren by his second marriage, and (that) without ex-
pressly disinheriting the children by his first mar-
riage, he left nothing to them, or, at least, some of
them." In the case at bar the testator did not entirely
omit oppositor-appellee Helen Garcia, but left her a
legacy of P3.600.00.
The estate of the deceased Christensen upon his
death consisted of 399 shares of stocks in the Chris-
tensen Plantation Company and a certain amount in
cash. One-fourth (1/4) of said estate descended to
Helen Garcia as her legitime. Since she became the
owner of her share as of the moment of the death of
the decedent (Arts. 774, 777, Civil Code), she is enti-
tled to a corresponding portion of all the fruits or in-
crements thereof subsequently accruing. These in-
clude the stock dividends on the corporate holdings.
The contention of Lucy Duncan that all such divi-
dends pertain to her according to the terms of the will
cannot be sustained, for it would in effect impair the
right of ownership of Helen Garcia with respect to her
legitime.
xxx xxx xxx
Wherefore, the order of the trial court dated Oc-
tober 29, 1964, approving the project of partition as
submitted by the executor-appellee, is hereby set
aside; and the case is remanded with instructions to
partition the hereditary estate anew as indicated in
this decision, that is, by giving to oppositor-appellee
Maria Helen Christensen Garcia no more than the
portion corresponding to her as legitime, equivalent to

one-fourth (1/4) of the hereditary estate, after deduct-
ing all debts and charges, which shall not include
those imposed in the will of the decedent, in accor-
dance with Article 908 of the Civil Code.
Should the value of the legacy or devise be less than the

recipient’s legitime, his remedy, as in A, supra, is only for com-
pletion of his legitime under Articles 906 and 907.
C. If the heir had received a donation inter vivos from
the testator—The better view is that there is no
preterition.
Reason: The donation inter vivos is treated as an advance

on the legitime under Articles 906 (quoted supra), 909, 910 and
1062.
“Art. 909. Donations given to children shall be

charged to their legitime.
“Donations made to strangers shall be charged
to that part of the estate of which the testator could
have disposed by his last will.
“Insofar as they may be inofficious or may ex-
ceed the disposable portion, they shall be reduced ac-
cording to the rules established by this Code."
“Art. 910. Donations which an illegitimate

child may have received during the lifetime of his fa-
ther or mother, shall be charged to his legitime.
“Should they exceed the portion that can be
freely disposed of, they shall be reduced in the man-
ner prescribed by this Code.”
“Art. 1062. Collation shall not take place
among compulsory heirs if the donor should have so
expressly provided, or if the donee should repudiate
the inheritance, unless the donation should be re-
duced as inofficious.”
This view is supported by Castan, Manresa, Scaevola, and

Valverde. Contra: Decision of the Supreme Court of Spain of
17 June 1908, which held that there was preterition in such an

instance.
D. If the heir is not mentioned in the will nor was a re-
cipient of a donation inter vivos from the testator,
but not all of the estate is disposed of by the will—
There is no preterition.
The omitted heir in this instance would receive something
by intestacy, from the portion not disposed of by the will (the
vacant portion). The right of the heir, should the vacant portion
be less than his legitime, will simply be to demand completion
of his legitime, under Articles 906 and 907.
For there to be preterition, therefore, the heir in question
must have received nothing from the testator by way of: (1) tes-
tamentary succession, (2) legacy or devise, (3) donation inter
vivos, or (4) intestacy. Preterition means therefore: total omis-
sion in the inheritance. Consequently, what constitutes preteri-
tion is not omission (in the sense of not being mentioned) in the
will but being completely left out of the inheritance (Vide Sean-
gio v. Reyes, 508 SCRA 177 [2006].
III. Who are included within the terms of the article?—a

compulsory heir in the direct line, “whether living at the time of
the execution of the will or bom after the death of the testator.”
A. Compulsory heirs in the direct line—covers children
or descendants, and in proper cases, (in default of
children or descendants) parents or ascendants.
1) the surviving spouse—does not fall within the
purview of this Article because, although a
compulsory heir, is not in the direct line. (Cf.
Balanay vs. Martinez, 64 SCRA 452 [1975];
Acain v. IAC, 155 SCRA 100 [1987], infra, p.
276)
Direct line is defined by Article 964, par. 2:
“Art. 964. xxx xxx xxx

“A direct line is that constituted by the se-
ries of degrees among ascendants and descen-
dants.
xxx xxx xxx”
B. Are illegitimate descendants or ascendants within

the coverage of “compulsory heirs in the direct line”?
Yes—Manresa
No—Scaevola
Manresa’s seems to be the better opinion, since the law

does not distinguish.
C. Quasi-posthumous children: There is a flaw in the

wording of the Article. The phrase “whether living at
the time of the execution of the will or bom after the
death of the testator” does not, by its terms, include
those compulsory heirs in the direct line bom after
the execution of the will but before the testator's
death (los cuasi postumos). Such children are, with-
out doubt, to be included within the purview of the
protection of this Article. This gap is merely the re-
sult of careless drafting. (Manresa: Podra haber una
errata en el articulo. . . y nada mas).
The proposed Spanish Code of 1851 expresses the legisla-

tive intent correctly: “whether living at the time of the execution
of the will or bom subsequently, even after the testator’s
death.”
D. Predecease of Preterited Compulsory Heir;

The second paragraph of Art. 854 states:
“xxx xxx xxx

If the omitted compulsory heirs should die be-
fore the testator, the institution shall be effectual,
without prejudice to the right of representation.”
The determination of whether or not there are preterited

heirs can be made only upon the testator’s death (JLT Agro v.
Balasag, 453 SCRA 211 [2005])
Should the preterited heir predecease (or be unworthy to

succeed) the testator, obviously the question of preterition of
that heir becomes moot. However, should there be a descen-
dant of that heir who is himself preterited, then the effects of
preterition will arise.
Example: X has two legitimate children: A and B. X makes
a will which results in the preterition of A. A predeceases X but
leaves a legitimate child A-1, who is himself completely omitted
from the inheritance (A-1 being entitled to succeed X by repre-
sentation). Art. 854 will apply, not because A was preterited but
because A-1 was preterited.
Another example would be: if the preterited heir who pre-
deceases is a child but the testator is survived solely by ascen-
dants, who are entitled to a legitime in default of descendants.
E. Adopted Children:
Acain vs. IAC
155 SCRA 100 (1987)
PARAS, J.:
xxx xxx xxx

On May 29, 1984 petitioner Constantino Acain
filed xxx a petition for the probate of the will of the
late Nemesio Acain and for the issuance to the same
petitioner of letters testamentary, xxx on the premise
that Nemesio Acain died leaving a will in which peti-
tioner and his brothers Antonio, Flores and Jose and
his sisters Anita, Concepcion, Quirina and Laura were
instituted as heirs. The will allegedly executed by
Nemesio Acain on February 17, 1960 was written in
Bisaya xxx with a translation in English xxx submit-
ted by petitioner without objection raised by private
respondents, xxx. On the disposition of the testator’s
property, the will provided:
‘THIRD: All shares that I may receive from our
properties, house, lands and money which I earned
jointly with my wife Rosa Diongson shall all be given
by me to my brother SEGUNDO ACAIN, Filipino, wid-
ower, of legal age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my brother Se-

gundo Acain predeceases me, all the money, proper-
ties, lands, houses there In Bantayan and here in
Cebu City which constitute my share shall be given by
me to his children, namely: Anita, Constantino, Con-
cepcion, Quirina, Laura, Flores, Antonio and Jose, all
sumamed Acain.”
Obviously, Segundo predeceased Nemesio. Thus,
it is the children of Segundo who are claiming to be
heirs, with Constantino as the petitioner xxx.
After the petition was set for hearing in the lower
court on June 25, 1984 the oppositors (respondents
herein Virginia A. Fernandez, a legally adopted
daughter of the deceased and the latter’s widow Rosa
Diongson Vda. de Acain) filed a motion to dismiss on
the following grounds: (1) the petitioner has no legal
capacity to institute these proceeding: (2) he is merely
a universal heir and (3) the widow and the adopted
daughter have been preterited.
After the denial of their subsequent motion for
reconsideration in the lower court, respondents filed
with the Supreme Court a petition for certiorari and
prohibition with preliminary injunction which was
subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11,
1985 xxx.
Respondent Intermediate Appellate Court granted
private respondents’ petition and ordered the trial court
to dismiss the petition for the probate of the will of Neme-
sio Acain xxx.
His motion for reconsideration having been de-
nied, petitioner filed this present petition for the re-
view of respondent Court’s decision on December 18,
1985.
xxx xxx xxx
The pivotal issue in this case is whether or not
private respondents have been preterited.
xxx xxx xxx

Preterition consists in the omission in the testa-

tor’s will of the forced heirs or anyone of them either
because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are
expressly disinherited (Nuguid v. Nuguid, 17 SCRA
450 [1966]; Maninang v. Court of Appeals, 114 SCRA
478 [1982]). Insofar as the widow is concerned, Article
854 of the Civil Code may not apply as she does not
ascend or descend from the testator, although she is
a compulsory heir. Stated otherwise, even if the sur-
viving spouse is a compulsory heir, there is no preteri-
tion even if she is omitted from the inheritance, for
she is not in the direct line. (Art. 854, Civil Code)
However, the same thing cannot be said of the other
respondent Virginia A. Fernandez, whose legal adop-
tion by the testator has not been questioned by peti-
tioner xxx. Under Article 39 of P.D. No. 603, known as
the Child and Youth Welfare Code, adoption gives to
the adopted person the same rights and duties as if
he were legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot
be denied that she was totally omitted and preterited
in the will of the testator and that both adopted child
and the widow were deprived of at least their legitime.
Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition
of the legally adopted child.
Preterition annuls the institution of an heir and
annulment throws open to intestate succession the
entire inheritance including “la portion libre (que) no
hubiese dispuesto en virtual de legado, mejora or
donation” (Manresa, as cited in Nuguid v. Nuguid, su-
pra; Maninang v. Court of Appeals, 114 SCRA 478
[1982]). The only provisions which do not result in in-
testacy are the legacies and devises made in the will
for they should stand valid and respected, except in-
sofar as the legitimes are concerned.
The universal institution of petitioner together
with his brothers and sisters to the entire inheritance
of the testator results in totally abrogating the will be-
cause the nullification of such institution of universal
heirs—without any other testamentary disposition in
the will—amounts to a declaration that nothing at all

was written. Carefully worded and in clear terms, Ar-
ticle 854 of the Civil Code offers no leeway for inferen-
tial interpretation (Nuguid v. Nuguid, supra). No lega-
cies nor devises having been provided in the will, the
whole property of the deceased has been left by uni-
versal title to petitioner and his brothers and sisters.
The effect of annulling the institution of heirs will be,
necessarily, the opening of a total intestacy (Neri v.
Akutin, 74 Phil. 185 [1943]) except that proper lega-
cies and devises must, as already stated above, be re-
spected.
Acain answers the question, previously controverted,

whether an adopted child is within the contemplation of this
article as “compulsory heir in the direct line” and rules in favor
of the adopted child’s inclusion in the phrase. An adopted
child, therefore, if totally omitted in the inheritance, is preter-
ited within the contemplation of Article 854 and can invoke its
protection and consequences. Acain’s logic is the soul of sim-
plicity: since an adopted child is given by law the same rights
as a legitimate child, vis-a-vis the adopter, then the adopted
child can, in proper cases, invoke Article 854 in the same man-
ner that a legitimate child can. The law cited by Acain—Article
39 of PD 603 (the Child and Youth Welfare Code) was sup-
planted by Article 189(1) of the Family Code, which, however,
has in turn been supplanted by Secs. 17 and 18 of RA 8552
(the Domestic Adoption Act of 1998):
IV. Effect of Preterition—The article lays down the effect

of preterition with sufficient clarity: annulment of the institu-
tion of heir but validity of legacies and devises to the extent
that these latter do not impair legitimes.
A. Distinction between heirs and legatees/devisees:
This is about the only instance in the Philippine law
on succession where there is still a practical effect in
the distinction between an heir and a legatee/
devisee. (For a discussion of the distinction, vide
comments under Article 782).
1. Annulment of institution of heir, meaning:
Nuguid vs. Nuguid

17 SCRA 449 (1966)
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died

on December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her le-
gitimate parents, Felix Nuguid and Paz Salonga
Nuguid, and six (6) brothers and sisters, namely: Al-
fredo, Federico, Remedios, Conrado, Lourdes and Al-
berto, all sumamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid
filed in the Court of First Instance of Rizal a holo-
graphic will allegedly executed by Rosario Nuguid on
November 17, 1951, some 11 years before her demise.
Petitioner prayed that said will be admitted to probate
and that letters of administration with the will an-
nexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Sa-
longa Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their
opposition to the probate of her will. Ground therefor,
inter alia, is that by the institution of petitioner Reme-
dios Nuguid as universal heir of the deceased, opposi-
tors—who are compulsory heirs of the deceased in the
direct ascending line—were illegally preterited and
that in consequence the institution is void.
xxx xxx xxx
The court’s orderof November 8, 1963, held that
“the will in question is a complete nullity and will
per-
force create intestacy of the estate of the deceased
Rosario Nuguid” and dismissed the petition without
costs.
A motion to reconsider having been thwarted be-
low, petitioner came to this Court on appeal.
xxx xxx xxx
Petitioner’s sole assignment of error challenges
the correctness of the conclusion below that the will is
a complete nullity. This exacts from us a study of the

disputed will and the applicable statute.
Reproduced hereunder is the will:
“Nov. 17, 1951
1, ROSARIO NUGUID, being of sound and dis-

posing mind and memory, having amassed a certain
amount of property, do hereby give, devise, and be-
queath all of the property which I may have when I
die to my beloved sister Remedios Nuguid, age 34, re-
siding with me at 38-B Iriga, Q.C. In witness whereof,
I have signed my name this seventh day of November,
nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ROSARIO
NUGUID”
The statute we are called upon to apply is Article

854 of the Civil Code xxx:
“Art. 854. The preterition or omission of
one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the exe-
cution of the will or bom 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.
If the omitted compulsory heirs should die
before the testator, the institution shall be effec-
tual, without prejudice to the right of represen-
tation."
Except for inconsequential variation in
terms, the foregoing is a reproduction of Article
814 of Civil Code of Spain of 1889,
xxx xxx xxx

A comprehensive understanding of the term
preterition employed in the law becomes a necessity.
On this point Manresa comments:
“La pretericion consiste en omitar (sic) al he-
redero en el testamento. O no se le nombra
siquiera, o coin nombrandole como padre, hijo,

etc., no se le instituya heredero ni se le
deshereda expresamente, ni se le asigna parte
alguna de los bienes, resultando privado de un
modo tacito de su derecho a legitima.
Para que exista pretention, con arreglo al
articulo 814, basta que en el testamento omlta el
testador a uno cualquiera de aquellos a quienes
por su rnuerte corresponda la herenciaforzosa.
Se necesita pues. a) Que la omision se reji-
era a un heredero forzoso. b) Que la omision sea
completa; que el heredero forzoso nada reciba en
el testamento. ”
It may now appear trite but nonetheless helpful

in giving us a clear perspective of the problem before
us, to have on hand a clear-cut definition of the word
annul:
“To ‘annul’ means to abrogate, to make
void; x x x In re Morro’s estate, 54 A. 342, 343,
204 Pa. 484.”
“The word ‘annul’ as used in statute requiring
court to annul alimony provisions of divorce decree
upon wife’s remarriage means to reduce nothing; to
annihilate; obliterate: blot out; to make void or of no
effect; to nullify; to abolish. N.J.S.A. 2:50—38 (now
N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611,
614, 136 N.J. Eq. 132.”
xxx xxx xxx
xxx. The deceased Rosario Nuguid left no de-
scendants, legitimate or illegitimate. But she left
forced heirs in the direct ascending line—her parents,
now oppositors Felix Nuguid and Paz Salonga Nuguid.
And, the will completely omits both of them: They
thus received nothing by the testament; tacitly, they
were deprived of their legitime; neither were they ex-
pressly disinherited. This is a clear case of preterition.
Such preterition in the words of Manresa “anulara
siempre la institution de heredero, ” dando caracter ab-
soluto a este ordenamiento, ” referring to the mandate
of Article 814, now 854 of the Civil Code. The one-

sentence will here institutes petitioner as the sole,
universal heir—nothing more. No specific legacies or
bequests are therein provided for. It is in this posture
that we say that the nullity is complete. Perforce,
Rosario Nuguid died intestate.
xxx xxx xxx
Really, as we analyze the word annul employed
in the statute, there is no escaping the conclusion
that the universal institution of petitioner to the entire
inheritance results in totally abrogating the will. Be-
cause, the nullification of such institution of universal
heir—without any other testamentary disposition in
the will—amounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Ar-
ticle 854 offers no leeway for inferential interpretation.
Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez
Roman cites the “Memoria annual del Tribunal Su-
premo, correspondiente a 1908, ” which in our opinion
expresses the rule of interpretation, viz:
“xxx El art. 814, que preceptua en tales
casos de pretention la nulidad de la institution
de heredero, no consiente interpretation alguna
favorable a la persona instituida en el senttdo an-
tes expuesto, aun cuando parezca, y en algun
caso pudiera ser, mas o menos equitativa, porque
una nulidad no significa en Derecho sino la su-
posicion de que el hecho o el acto no se ha reali-
zado, debiendo, por lo tanto, procederse sobre tal
base o supuesto, y consiguientemente, en un tes-
tamento donde falte la institution, es obligado
llamar a los herederos forzosos en todo caso,
como habria que llamar a los de otra close,
cuando el testador no hubiese distribuido todos
sus bienes en legados, siendo tanto mas obligada
esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la
jurisprudencia, con repetition, que no basta que
sea conocida la voluntad de quien testa si esta
voluntad no aparece en la forma y en las condi-
ciones que la ley ha exigido para que sea valido y

eficaz, por lo que constituiria una interpretation a
un heredero cuya institution fuese anulada con
pretexto de que esto se acomodaba mejor a la
voluntad del testador, pues aim cuando asi fuese,
sera esto razon para modificar la ley, pero no
autoriza a una interpretation contraria a sus ter-
minos y a los principios que informan la testa-
mentifaccion, pues no porque paresca mejor una
cosa en el terreno del Derecho constttuyente, hay
razon para convereste juicio en regia de interpre-
tation, desvirtuando y anulando por este pro-
cedimiento lo que el legislador quiere establecer. ”
3. We should not be led astray by the state-
ment in Article 854 that, annulment notwithstanding,
“the devises and legacies shall be valid insofar as they
are not inofficious.” Legacies and devises merit con-
sideration only when they are so expressly given as
such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will—void
because of preterition—would give the heir so insti-
tuted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institu-
tion, a testamentary disposition granting him be-
quests or legacies apart and separate from the nulli-
fied institution of heir. Sanchez Roman, speaking of
the two component parts of Article 814, now 854,
states that preterition annuls the institution of the
heir “totalmente por la preterition”', but added (in refer-
ence to legacies and bequests), “pero subsistiendo, xx
x todas aquellas otras disposiciones que no se refieren
a la institution de heredero x x x . " As Manresa puts it,
entire inheritance including “la portion libre (que) no
hubiese dispuesto en virtud de legado, mejora o dona-
tion.
As aforesaid, there is no other provision in the
will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and
void. And, intestate succession ensues.
4. Petitioner’s mainstay is that the present is “a
case of ineffective disinheritance rather than one of
preterition.” From this, petitioner draws the conclu-

sion that Article 854 “does not apply to the case at
bar.” This argument fails to appreciate the distinction
between preterition and disinheritance.
Preterition “consists in the omission in the testa-
tor’s will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though
mentioned they are neither instituted as heirs nor are
expressly disinherited.” Disinheritance, in turn, “is a
testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause authorized
by law.” In Manresa’s own words: “La privation ex-
presa de la legitima constituye la desheredacion. La
privation tacita de la misma se denomina preterition.
Sanchez Roman emphasizes the distinction by stating
that disinheritance “es siempre voluntaria”‘ preterition
upon the other hand, is presumed to be “involun-
taria." Express as disinheritance should be, the same
must be supported by a legal cause specified in the
will itself.
The will here does not explicitly disinherit the
testatrix’s parents, the forced heirs. It simply omits
their names altogether. Said will rather than be la-
beled ineffective disinheritance is clearly one in which
the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing
from preterition are totally different from those of dis-
inheritance. Preterition under Article 854 of the Civil
Code, we repeat, “shall annul the institution of heir.”
This annulment is in toto, unless in the will there are,
in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under
Article 918 of the same Code, such disinheritance
shall also “annul the institution of heirs,” put only
“insofar as it may prejudice the person disinherited,”
which last phrase was omitted in the case of preteri-
tion. Better stated yet, in disinheritance the nullity is
limited to that portion of the estate of which the dis-
inherited heirs have been illegally deprived. Manresa’s
expressive language, in commenting on the rights of
the preterited heirs In the case of preterition on the
one hand and legal disinheritance on the other, runs
thus: Preteridos, adquiren el derecho a todo; deshere-

dados, solo les corresponde an tercio o dos tercios, el
caso."
xxx xxx xxx

The disputed order, we observe, declares the will
in question “a complete nullity.” Article 854 of the
Civil Code in turn merely nullifies “the institution of
heir.” Considering, however, that the will before us
solely provides for the institution of petitioner as uni-
versal heir, and nothing more, the result is the same.
The entire will is null.
The meaning and extent of the annulment of the institu-

tion of heir—already so clearly and unequivocally defined in
Nuguid—was, unfortunately, muddled in Solano v. Court of Ap-
peals 126 SCRA. 122 (1983). Solano ruled that the preterition of
the private respondents (who were illegitimate children) should
annul the institution of heir “only insofar as the legitime of the
omitted heirs is impaired.” This is not annulment but reduction,
and this would erase the distinction between the effect of pre-
terition on the institution of heir and its effect on legacies and
devises. There is, in Solano, an attempt to draw a specious
(and, to this writer, incomprehensible) distinction between the
factual milieu of Nuguid and that of Solano, in that in the for-
mer there was only one disposition—the institution of an heir
to the entire estate—while in the latter there were both an in-
stitution of heir and a legacy. (As far as the effect on the insti-
tution of heir is concerned, this attempted distinction is com-
pletely irrelevant).
Acain v. Court of Appeals, supra, fortunately rectifies the
Solano holding by returning to the Nuguid ruling. Held Acain:
Preterition annuls the institution of an heir and

entire inheritance including 'la portion libre (que) no
hubiese dispuesto en virtual de legado, mejora o
donation' (Manresa, as cited in Nuguid v. Nuguid, su-
pra; Maninang v. Court of Appeals, 114 SCRA 478
(1982). The only provisions which do not result in in-
testacy are the legacies and devises made in the will
for they should stand valid and respected, except in-

sofar as the legitimes are concerned.
xxx xxx xxx
. . . Carefully worded and in clear terms, Article
854 of the Civil Code offers no leeway for inferential
interpretation [Nuguid v. Nuguid), supra. No legacies
nor devises having been provided in the will, the
whole property of the deceased has been left by uni-
versal title to petitioner and his brothers and sisters.
The effect of annulling the institution of heirs will be,
necessarily, the opening of a total intestacy (Neri v.
Akuttn, 74 Phil. 185 [1943]) except that proper lega-
cies and devises must, as already stated above, be re-
spected.”
To recapitulate, therefore, the correct rule on the effect of

preterition: Preterition abrogates the institution of heir but re-
spects legacies and devises insofar as these do not impair the
legitimes. Thus, if the will contains only institutions of heirs
and there is preterition, total intestacy will result; if there are
legacies or devises and there is preterition, the legacies or de-
vises will stand, to the extent of the free portion (merely to be
reduced, not set aside, if the legitimes are impaired) but the
institution of heirs, if any, will be swept away.
(For a fuller treatment of preterition, vide this writer’s
monograph: “Preterition—Provenance, Problems, And Propos-
als,” Philippine Law Journal, Vol. 50, No. 5 [December 1975]).
V. Preterition distinguished from Ineffective Disinheri-

tance.
Preterition is (total) omission from the inheritance, without
the heir being expressly disinherited. The implied basis of the
rule on preterition is inadvertent omission by the testator.
Thus, if the testator explicitly disinherits the heir, this article
will not apply. Should the disinheritance be ineffective, for ab-
sence of one or other of the requisites for a valid disinheritance,
the heir is simply entitled to demand his rightful share.
ARTICLE 855. The share of a child or descendant

omitted in a will must first be taken from the part of the
estate not disposed of by the will, if any; if that is not suffi-
cient, so much as may be necessary must be taken propor-
tionally from the shares of the other compulsory heirs.
(1080a)*
I. This article is redundant and completely unnecessary if

it is, as some believe, made to apply to cases of preterition. If
there is preterition, only Article 854 need be applied: that arti-
cle is sufficient and self-implementing for cases of preterition.
(Note: In fact, even in its proper application, it is redun-
dant just the same [vide infra]).
II. Proper application of article—This article is properly

applied in cases where a compulsory heir is not preterited but
left something (because not all the estate is disposed of by will)
less than his legitime. Article 855 really talks of a completion of
legitime.
III. How to fill up compulsory heir’s impaired legitime:
A. From the portion of the estate left undisposed of by
will.
B. From the shares of the testamentary heirs, legatees,
and devisees, proportionally.
IV. Superfluity and Inaccuracy of the Article

A. Superfluity—Since this article, properly understood,
does not apply to preterition but to completion of
legitime, it is redundant, because the rules and
manner of completing impaired legitimes are laid
down with greater detail in Articles 906, 907, 909,
910, and 911.
B. Inaccuracy—There are two inaccuracies in this arti-
cle:
' The article from which this article is supposed to be derived (Art. 1080
of the old Code) governs instances of a compulsory heir omitted in the partition;
hence, is irrelevant to the subject-matter of Art. 855. Vide Art. 1104, infra.
1. its coverage should extend not only to children

and descendants, but to all compulsory heirs. As
subsequent articles (906, et seq.) mandate, any
compulsory heir whose legitime is impaired may
demand that the same be fully satisfied.
2. the proportionate reductions (after consuming the
undisposed portion) should be borne not by the
compulsory heirs as such but by the testamentary
heirs, including the devisees and legatees. To
make the compulsory heirs qua compulsory heirs
bear the reduction would mean reducing their
own legitimes—a patent absurdity. That would be
solving one problem by creating another: a legiti-
mary “robbing Peter to pay Paul” solution. As cor-
rectly stated by Article 907, it is testamentary dis-
positions that must be reduced if they impair or
diminish the legitimes of compulsory heirs.
Senator Tolentino’s comments on this point are enlighten-

ing:
“Clearly, the present article suffers from very

patent and fundamental errors. It could have well
been omitted, and the Code would have been much
better with such omission. The determination and
payment of the share of a compulsory heir omitted in
the will can be made under other provisions of the
Code; the present article merely creates confusion. To
harmonize this article with the system of legitimes,
and to erase its absurdity, it should perhaps be re-
phrased as follows:
“The share of the compulsory heir omitted
in a will must first be taken from the part of the
estate not disposed of by the will, if any: if that
is not sufficient, as much as may be necessary
must be taken proportionally from the shares of
the other heirs given to them by will”' (Tolentino
III, 1992 ed., p. 197)
ARTICLE 856. A voluntary heir who dies before the

testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a per-

son incapacitated to succeed, and one who renounces the
inheritance, shall transmit no right to his own heirs except
in cases expressly provided for in this Code. (776a)
I. Observations on the article:
A. It is inaccurate and misleading, because it suggests
that there are exceptions to the rule that an heir—in
case of predecease, incapacity, or renunciation—
transmits nothing to his own heirs. This rule of non-
transmission is absolute; there is no exception to it.
Representation does not constitute an exception, be-
cause in representation the person represented does
not transmit anything to his heirs. Representation is
rather a form of subrogation (Vide comments in the
chapter on Representation, Articles 970-977).
B. It says both too much and too little:
Too much—because this article is found in the chapter on

testamentary succession (in the section on institution of heir);
thus it should speak only of voluntary or testamentary heirs.
Too little—because if it wished to cover the entire gamut of
rules on this point, it does not mention legal or intestate heirs.
Neither does it provide for cases of disinheritance.
II. Complete statement of the rule:
An heir—whether compulsory, voluntary, or legal—

transmits nothing to his heirs in case of predecease, incapacity,
renunciation, or disinheritance. However, in case of predecease
or incapacity of compulsory or legal heirs, as well as disinheri-
tance of compulsory heirs, the rules on representation shall
apply.
III. Outline of Rules:
Kind, of Predecease Incapacity Renunciation Disinheritance

Heir
Com- 1. transmits transmits 1. transmits 1. transmits

pulsory
nothing nothing nothing nothing
2. representation 2. representation 2. no representation 2. representa-
tion
Volun- 1. transmits 1. transmits 1. transmits not applicable
tary
nothing nothing nothing
2. no representation 2. no representation 2. no representation
Legal 1. transmits 1. transmits 1. transmits not applicable*
nothing nothing nothing
2. representation 2, representation 2. no representation
SECTION 3.—SUBSTITUTION OF HEIRS

ARTICLE 857. Substitution is the appointment of an-
other heir so that he may enter into the inheritance in de-
fault of the heir originally instituted, (n)
I. A. The definition of substitution is incomplete because

it covers only simple substitution and excludes the fideicom-
missary. In the fideicommissary, the second heir does not suc-
ceed in default of the first, but after the first.
B. The complete definition of substitution should be:
“Substitution is the appointment of another heir
so that he may enter into the inheritance in default of,
or subsequent to, the heir originally instituted.”
II. With respect to simple substitution, this section is

properly a part of the next section (Section 4), which deals, inter
alia, with conditional testamentary dispositions. Simple substi-
tution is really a form of conditional institution.
III. Basis of substitutions:
The right to provide for substitutions is based on testa-
mentary freedom.
In simple substitutions, the testator simply makes a sec-
ond choice, in case the first choice does not inherit.
' If a compulsoiy heir who is also an intestate heir is disinherited, he for-

feits both his legitime and his intestate portion and representation, if proper,
operates as to the intestate portion. Cf. Art. 981.
In fideicommissary substitutions, the testator imposes

what is essentially a restriction or burden on the first heir,
coupled with a selection of a subsequent recipient of the prop-
erty.
ARTICLE 858. Substitution of heirs may be:

(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
I. The Spanish Code, in addition to the four here enu-

merated, had two more substitutions (both of which were
eliminated in the present Code): the pupilar and the ejemplar
(Articles 77517 and 776,18 Spanish Code).
“775. Los padres y demas ascendientes podran nombrar
sustitutos a sus descendientes menores de catorce anos, de
ambos sexos, para el caso de que mueran antes de dicha edad.”
“776. El ascendiente podra nombrar sustituto al de-
scendiente mayor de catorse anos, que, conforme a derecho,
haya sido declarado incapaz por enajenacion mental.
La sustitucion de que habla el parrafo anterior quedara
sin efecto por el testamento del incapacitado hecho durante un
intervalo lucido o despues de haber recobrado la razon.”
II. Kinds of substitution:

A. 1. Four kinds of substitution are enumerated by this
article:
17 Art. 775. Parents and other ascendants may designate substitutes
for their descendants below fourteen years of age of either sex, in case these
should die before such age.
18 Art. 776. An ascendant may designate a substitute for a descendant
over fourteen years of age, who, conformably with the law, has been declared
incompetent by reason of mental incapacity.
“The substitution referred to in the preceding paragraph shall be ren-
dered ineffective by a will executed by the incompetent during a lucid interval
or after he has recovered his mental faculties.
1) simple / common (vulgar)—Article 859

2) brief / compendious (brevilocua / compen-
diosaj—Article 860
3) reciprocal (reciprocal—Article 861
4) fideicommissary (fideicomisaria)—Article 863
2. In reality, there are only two kinds of substi-
tution: the simple or common (vulgar) and the fidei-
commissary (fideicomisaria). These two are mutually
exclusive; i.e., a substitution must be one or the
other, and cannot be both at the same time.
The two others enumerated—the brief or compendi-

ous (brevilocua/compendiosa) and the reciprocal (reciproca)
are merely variations (Manresa: “modalidades”) of either
the vulgar or the fideicomisaria.
ARTICLE 859. The testator may designate one or

more persons to substitute the heir or heirs instituted in
case such heir or heirs should die before him, or should not
wish, or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the
cases to which it refers, shall comprise the three mentioned
in the preceding paragraph, unless the testator has other-
wise provided. (774)
I. A. This article provides for simple (vulgar) substitution.
B. 1. Causes of simple substitution:
a) predecease of the first heir
b) renunciation of the first heir
c) incapacity of the first heir
2. How testator may provide for simple subs-
titution with all three causes:
a) by specifying all the three causes,
b) by merely providing for a simple substitution
3. Restricted simple substitution: The testator may
limit the operation of simple substitution by
specifying only one or two of the three causes.
4. Quaerendcc
1) May the testator provide for a substitution
on grounds other than those provided in this
article?
2) In case of renunciation by the first heir, must
the substitute have capacity at the time of the
renunciation? Stated differently, supposing
the substitute dies before the first heir mani-
fests his renunciation, may the successors of
the substitute acquire the testamentary dis-
position?
2.1 Either view is defensible and sup-
portable by legal provisions:
2.1.1 The view that the substitute
must have capacity at the time
of the renunciation by the first
heir finds support in Article
1034, par. 3:
“If the institution, devise or legacy
should be conditional, the time of the com-
pliance with the condition shall also be
considered. (758a)”
As stated above, a simple substitution
is a form of conditional institution; there-
fore, Article 1034, par. 3 can be applied to
it.
2.1.2 The opposite view—that the substi-
tute need not have capacity at the
time of the renunciation (as when he
died previously)—can be defended by
an invocation of Articles 1042 and
533, par. 2:
“Art. 1042. The effects of the accep-
tance or repudiation of the inheritance shall
always retroact to the moment of the death
of the decedent. (989)”

“One who validly renounces an inheri-
tance is deemed never to have possessed
the same. (440)”
3) Will the substitute be disqualified if the cause
of the first heir’s predecease is that the substi-
tute killed him?
ARTICLE 860. Two or more persons may be subs-
tituted for one, and one person for two or more heirs. (778)
I. Brief or compendious substitution—recognized by this
article—is a possible variation of either a vulgar or a fideico-
rnisaria.
II. Some commentators make a distinction between brief
and compendious, viz:
brief—two or more substitutes for one original heir
compendious—one substitute for two or more original
heirs
The majority of commentators, however, make no such

distinction, and certainly the law uses the terms inter-
changeably.
III. If one is substituted for two or more original heirs—
Effect of default of one but not all of the original heirs: Substi-
tution will not take place; the share left vacant will accrue to
the surviving co-heir or co-heirs. Substitution will take place
only if all the original heirs are disqualified. (6 Manresa, 1903
ed., p. 120, citing Sentencia of 18 June 1858).
Example: X makes the following provision in his will: “I

institute A and B to 1/3 of my estate and nominate C as their
substitute.” If A predeceases B, the 1/3 portion, upon X’s death
goes to B; there is no substitution by C. Substitution occurs
only if both A and B are disqualified.
Note: The obvious exception to this is a case where the
testator provides for substitution in the event of the death (or
renunciation or incapacity) of any one of the original heirs.
ARTICLE 861. If heirs instituted in unequal shares

should be reciprocally substituted, the substitute shall ac-
quire the share of the heir who dies, renounces, or is inca-
pacitated, unless it clearly appears that the intention of the
testator was otherwise. If there are more than one substi-
tute, they shall have the same share in the substitution as
in the institution. (779a)
I. Reciprocal substitution is governed by this article. Like
the brief/compendious, reciprocal substitution is not a distinct
kind of substitution, but is rather a possible variation of the
vulgar or the fideicomisaria.
II. The first sentence is self-explanatory.
The second sentence may be illustrated thus:

A, B, and C are instituted, respectively, to 1/2, 1/3 and
1/6 of the estate. Should A predecease the testator, B and C
will acquire A’s 1/2 portion in the proportion of 2:1 (their tes-
tamentary shares being 1/3 and 1/6). Should B predecease, A
and C will get B’s 1/3 portion in the proportion of 3:1 (corres-
ponding to the testamentary shares of 1/2 and 1/6). Should C
predecease, A and B will share C’s 1/6 portion in the propor-
tion of 3:2, by the same logic.
ARTICLE 862. The substitute shall be subject to the
same charges and conditions imposed upon the instituted
heir, unless the testator has expressly provided the con-
trary, or the charges or conditions are personally applicable
only to the heir instituted. (780)
The obvious rationale for this provision is that the substi-
tute merely takes the place of the original heir.
ARTICLE 863. A fideicommissary substitution by vir-
tue of which the fiduciary or first heir instituted is en-
trusted 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 insti-
tuted, and provided further, that the fiduciary or first heir
and the second heir are living at the time of the death of
the testator. (781a)
Elements of the Jideicomisaria.

1. a first heir (fiduciary/fiduciario) who takes the prop-
erty upon the testator’s death;
2. a second heir (fideicommissary heir/Jideicomisario)
who takes the property subsequently from the fiduciary;
3. the second heir must be one degree from the first heir;
4. the dual obligation imposed upon the fiduciary to pre-
serve the property and to transmit it after the lapse of the pe-
riod to the fideicommissaiy heir;
5. both heirs must be living and qualified to succeed at
the time of the testator’s death.
Re: #1—a first heir (fiduciary/fiduciario) who takes the
property upon the testator’s death;
The fiduciary enters upon the inheritance, like
every other heir, upon the opening of the succes-
sion; le. when the testator dies.
Re: #2—a second heir (fideicommissaiy/fideicomisarid)
who takes the property subsequently from the fi-
duciary;
The fideicommissary heir does not receive
the property until the fiduciary’s right expires.
Both heirs enter into the inheritance, one after the
other, each in his own turn. This distinguishes
the fideicomisaria from the vulgar, in which the
substitute inherits only if the first heir fails to in-
herit.
Note, however, that, though the fideicom-
missary heir does not receive the property upon
the testator’s death, his right thereto vests at that
time and merely becomes subject to a period, and
that right passes to his own heirs should he die
before the fiduciary’s right expires (Vide Article

866, infra).
Re: #3—the second heir must be one degree from the first
heir;
The requirement of one degree: There is no
question that only one transmission is allowed in
the fideicomisaria, from the first heir to the sec-
ond heir. But, on top of that, does the term “one
degree” mean that the second heir must be in the
first degree of relationship with the first heir, as
the word “degree” is used in Articles 963, 964 and
966? In other words, must the second heir be ei-
ther a child or a parent of the first heir?—Yes,
ruled the Supreme Court in effect in Palacios vs.
Ramirez, 111 SCRA 704 (1982):
Palacios vs. Ramirez

111 SCRA 704 (1982)
ABAD SANTOS, J.:
The main issue in this appeal is the manner of

partitioning the testate estate of Jose Eugenio Rami-
rez among the principal beneficiaries, namely: his
widow Marcelle Demoron de Ramirez; his two grand-
nephews Roberto and Jorge Ramirez; and his com-
panion Wanda de Wrobleski.
The task is not trouble-free because the widow
Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain.
Moreover, the testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died
in Spain on December 11, 1964, with only his widow
as compulsory heir. His will was admitted to probate
by the Court of First Instance of Manila, Branch X, on
July 27, 1965. Maria Luisa Palacios was appointed
administratrix of the estate.
xxx xxx xxx
The testamentary dispositions are as follows:
“A.—En nuda propledad, a D. Roberto y D. Jorge

Ramirez, ambos menores de edad, residentes en Ma-
nila, I.F., calle Wright, No. 1818, Malate, hijos de su
sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a
favor de sus respectivos descendientes, y, en su de-
fecto, con sustitucion vulgar reciproca entre ambos.
“El precedente legado en nuda propiedad de la
participacion indivisa de la finca Santa-Cruz Building,
lo ordena el testador a favor de los legatarios nombra-
dos, en atencion a que dicha propiedad fue creacion
del querido padre del otorgante y por ser aquellos
continuadores del apellido Ramirez.
“B.—Y en usufructo a saber:—
a. En cuanto a una parte, a favor de la esposa
del testador, Da. Marcelle Ramirez, domiciliada en IE
PECO, calle del General Gallieni, No. 33, Seine, Fran-
cia, con sustitucion vulgar u (sic) fideicomisaria a favor
de Da. Wanda Wrobleski, de Palma de Mallorca, Son
Rapina, Avenida de los Reyes 13,
b. —Y en cuanto a las dos terceras partes re-
stantes, a favor de la nombrada Da. Wanda de
Wrobleski, con sustitucion vulgar y fideicomisaria, a
saber:—
“En cuanto a la mitad de dichas dos terceras
partes, a favor de D. Juan Pablo Jankowski, de Son
Rapina, Palma de Mallorca: y en cuanto a la mitad re-
stante, a favor de su sobrino, D. Horace V. Ramirez,
San Luis Building, Florida St., Ermita, Manila, I.F.
“A pesar de las sustituciones fideicomisarias pre-
cedentemente ordinadas, las usufructuarias nom-
bradas conjuntamente con los nudo propietarios, po-
dran en cualquier momento vender a tercero los bienes
objeto delegado, sin intervention alguna de los titulares
fideicomisarios.”
On June 23, 1966, the administratrix submitted
a project of partition as follows: the property of the
deceased is to be divided into two parts. One part
shall go to the widow “en pleno dominio” in satisfac-
tion of her legitime; the other part or “free portion”
shall go to Jorge and Roberto Ramirez “en nuda pro-
priedad.” Furthermore, one third (1/3) of the free por-

tion Is charged with the widow’s usufruct and the re-
maining two-third (2/3) with a usufruct in favor of
Wanda.
Jorge and Roberto opposed the project of parti-
tion on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with re-
spect to the widow’s usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with re-
spect to Wanda’s usufruct are invalid because the
first heirs (Marcelle and Wanda) survived the testator:
(b) that the provisions for fideicommissary substitu-
tions are also invalid because the first heirs are not
related to the second heirs or substitutes within the
first degree, as provided in Article 863 of the Civil
Code.
xxx xxx xxx
It may be useful to recall that “Substitution is
the appointment of another heir so that he may enter
into the inheritance in default of the heir originally in-
stituted.” (Art. 857, Civil Code.) And that there are
several kinds of substitutions, namely: simple or
common, brief or compendious, reciprocal, and fidei-
commissaiy. (Art. 858, Civil Code). According to To-
lentino, “Although the Code enumerates four classes,
there are really only two principal classes of substitu-
tions: the simple and the fideicommissaiy. The others
are merely variations of these two.” (Ill Civil Code, p.
185 [1973].)
The simple or vulgar is that provided in Art. 859
of the Civil Code x x x .
xxx xxx xxx
The fideicommissary substitution is described in
the Civil Code as follows:
xxx xxx xxx
It will be noted that the testator provided for a
vulgar substitution in respect of the legacies of
Roberto and Jorge Ramirez, the appellants, thus: “con
sustitucion vulgar a favor de sus respectivos de-
scendientes, y, en su defecto, con sustitucion vulgar

reciproca entre ambos.” The appellants do not ques-
tion the legality of the substitution so provided.
The appellants question the “sustitucion vulgar
y fideicomisaria a favor de Da. Wanda de Wrobleski”
in connection with the one-third usufruct over the es-
tate given to the widow Marcelle. However, this ques-
tion has become moot because as We have ruled
above, the widow is not entitled to any usufruct.
The appellants also question the “sustitucion
vulgar y fideicomisaria” in connection with Wanda’s
usufruct over two-thirds of the estate in favor of Juan
Pablo Jankowski and Horace V. Ramirez.
They allege that the substitution in its vulgar
aspect as void because Wanda survived the testator or
stated differently because she did not predecease the
testator. .But dying before the testator is not the only
case for vulgar substitution for it also includes refusal
or incapacity to accept the inheritance as provided in
Art. 859 of the Civil Code, supra. Hence, the vulgar
substitution is valid.
As regards the substitution in its fideicommis-
sary aspect, the appellants are correct in their claim
that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and
Horace V. Ramirez) are not related to Wanda, the heir
originally instituted. Art. 863 of the Civil Code vali-
dates a fideicommissary substitution “provided such
substitution does not go beyond one degree from the
heir originally instituted.”
What is meant by “one degree” from the first heir
is explained by Tolentino as follows:
“Scaevola, Maura, and Traviesas construe ‘de-
gree’ as designation, substitution, or transmission.
The Supreme Court of Spain has decidedly adopted
this construction. From this point of view, there can
be only one transmission or substitution, and the
substitute need not be related to the first heir. Man-
resa, Morell, and Sanchez Roman, however, construe
the word ‘degree’ as generation, and the present Code
has obviously followed this interpretation, by proving

that the substitution shall not go beyond one degree
‘from the heir originally instituted.’ The Code thus
clearly indicates that the second heir must be related
to and be one generation from the first heir.
From this, it follows that the fideicommissary
can only be either a child or a parent of the first heir.
These are the only relatives who are one generation or
degree from the fiduciary.” (Op cit., pp. 193-194).
(b) There is no absolute duty imposed on
Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In
fact, the appellee admits “that the testator contradicts
the establishment of a fideicommissary substitution
when he permits the properties subject of the usu-
fruct to be sold upon mutual agreement of the usu-
fructuaries and the naked owners.” (Brief, p. 26).
Note: It is not very clear to this writer how the phrase

“one degree from the heir originally instituted” clearly indicates
that the second heir must be related to and be one generation
from the first heir,” and thereby sweeps aside the theory (as-
cribed to Scaevola et al. by the portion quoted in the Palacios
decision) that degree simply means ‘transfer.’
The subsequent case of Vda de Aranas v. Aranas (150

SCRA 415 [1987]), could possibly be interpreted as containing
an implied validation of a usufruct subject to a fidecommissary
substitution in favor of persons beyond one degree of relation-
ship (namely, the original grantee’s brothers.)
The will contained the following provision:

“It is my will that the lands I had bought from
other persons should be converged and placed under
a ‘special administrator.’ The special administrator of
these lands, for his office, should receive one half of
all the produce from which shall be deducted the ex-
penses for the administration; ... Vicente V. Aranas
(Tingting), because he is a faithful and serviceable
nephew, should be the first special administrator of
said properties, without bond, until his death or until

he should not want to hold the said office anymore.
Anyone of the sons of my brother Carmelo Aranas can
hold the said office of special administrator, and none
other than they. Their father, my brother Carmelo
Aranas shall be the one to decide who among them
shall hold the said office, but upon the death of my
said brother Carmelo Aranas, his said sons will have
power to select the one among themselves.”
Can that implication be considered to have reversed

Palacios? In this writer’s opinion, hardly.
1. Reversals by implication should not be favored. The

implication in Aranas, if there was one, is just that. In any
event is too vague and too casual to be considered a reversal of
the express holding in Palacios that the term “degree” in Art.
863 means degree of relationship and not transfer.
2. Moreover, in the testator’s will in Aranas there was no

express obligation imposed upon the first heir to preserve the
property and transmit it to the second heir: a silence that ne-
gates the existence of a fideicommissary substitution. Vide PCIB
v. Escolin (56 SCRA 266), infra. Note further that a usufruct is,
as a general rule, alienable (Art. 572).
The eminent civilist Justice Jose Vitug, however, opines

that the Palacios interpretation of degree as degree of relation-
ship “would disenfranchise a juridical person from being either
a fiduciary or fideicommissary heir.” (II Vitug, Civil Law, 2003
ed., p. 224). The criticism has much to recommend itself.
Re: #4—the dual obligation imposed upon the fiduciary to

preserve the property and to transmit it after the lapse of the
period to the fideicommissary heir;
This requisite is the essence of the fideicomisaria. (Criso-
logo v. Singson, 45 SCRA 491 [1962]). This makes the position
of the fiduciary basically that of a usufructuary, with the right
to use and enjoy the property but without the jus disponendl
Effect if there is no absolute obligation to preserve and

transmit
Philippine Commercial and Industrial

Bank vs. Escolin
56 SCRA 266 (1974)
BARREDO, J.:
Certiorari and prohibition with preliminary in-
junction; certiorari to ‘declare all acts of the respon-
dent court in the Testate Estate of Linnie Jane Hodges
(Sp. Proc. 1307 of the Court of First Instance of Iloilo)
subsequent to the order of December 14, 1957, as
null and void for having been issued without jurisdic-
tion’; prohibition to enjoin the respondent court from
allowing, tolerating, sanctioning, or abetting private
respondent Avelina A. Magno to perform or do any
acts of administration, such as those enumerated in
the petition, and from exercising any authority or
power as Regular Administratrix of above-named Tes-
tate Estate, by entertaining manifestations, motions
and pleadings filed by her and acting on them, and
also to enjoin said court from allowing said private re-
spondent to interfere, meddle or take part in any
manner in the administration of the Testate Estate of
Charles Newton Hodges (Sp. Proc. No. 1672 of the
same court and branch); with prayer for preliminary
injunction, which was issued by this Court on August
8, 1967 upon a bond of P5.000; the petition being
particularly directed against the orders of the respon-
dent court of October 12, 1966 denying the peti-
tioner’s motion of April 22, 1966 and its order of July
18, 1967 denying the motion for reconsideration of
said order.
Related to and involving basically the same main
issue as the foregoing petition, thirty-three (33) ap-
peals from different orders of the same respondent
court approving or otherwise sanctioning the acts of
administration of the respondent Magno on behalf of
the Testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in

Iloilo City leaving a will executed on November 22,
1952 pertinently providing as follows:
FIRST: I direct that all my just debts and fu-
neral expenses be first paid out of my estate.
SECOND: I give, devise and bequeath all of the
rest, residue and remainder of my estate, both per-
sonal and real, wherever situated, or located, to my
beloved husband, Charles Newton Hodges, to have
and to hold unto him, my said husband, during his
natural lifetime.
THIRD: I desire, direct and provide that my
husband, Charles Newton Hodges, shall have the
right to manage, control, use and enjoy said estate
during his lifetime, and he is hereby given the right to
make any changes in the physical properties of said
estate, by sale or any part thereof which he may think
best, and the purchase of any other or additional
property as he may think best; to execute convey-
ances with or without general or special warranty,
conveying in fee simple or for any other term or time,
any property which he may deem proper to dispose of;
to lease any of the real property for oil, gas and/or
other minerals, and all such deeds or leases shall
pass the absolute fee simple title to the interest so
conveyed in such property as he may elect to sell. All
rents, emoluments and income from said estate shall
belong to him, and he is further authorized to use any
part of the principal of said estate as he may need or
desire. It is provided herein, however, that he shall
not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the
City of Lubbock, Texas, but he shall have the full
right to lease, manage and enjoy the same during his
lifetime, above provided. He shall have the right to
subdivide any farm land and sell lots therein, and
may sell unimproved town lots.
FOURTH: At the death of my said husband,
Charles Newton Hodges, I give, devise and bequeath
all of the rest, residue and remainder of my estate,

both real and personal, wherever situated or located,
to be equally divided among my brothers and sisters,
share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon,
Roy Higdon, Saddle Rascoe, Era Roman and Nimroy
Higdon.
FIFTH: In case of the death of any of my broth-
ers and/or sisters named in item Fourth, above, prior
to the death of my husband, Charles Newton Hodges,
then it is my will and bequest that the heirs of such
deceased brother or sister shall take jointly the share
which would have gone to such brother or sister had
she or he survived.
SIXTH: I nominate and appoint my said hus-
band, Charles Newton Hodges, to be executor of this,
my last will and testament, and direct that no bond or
other security be required of him as such executor.
SEVENTH: It is my will and bequest that no ac-
tion be had in the probate court, in the administra-
tion of my estate, other than that necessary to prove
and record this will and to return an inventory and
appraisement of my estate and list of claims’ (pp. 2-4,
Petition)
This will was subsequently probated in afore-
mentioned Special Proceedings No. 1307 of respon-
dent court on June 28, 1957, with the widower
Charles Newton Hodges being appointed as Executor,
pursuant to the provisions thereof.
(C. N. Hodges died on 25 December 1962.)
xxx xxx xxx
"xxx on September 14, 1964, . . . the co-
administrators Joe Hodges and Fernando P. Mirasol
were replaced by herein petitioner Philippine Com-
mercial and Industrial Bank as sole administrator,
pursuant to an agreement of all the heirs of Hodges
approved by the court. . .
xxx xxx xxx

"On January 8, 1965, petitioner filed a motion

for ‘Official Declaration of Heirs of Linnie Jane
Hodges’ Estate alleging:
xxx xxx xxx
“(c) There are generally only two kinds of sub-
stitution provided for and authorized by our Civil
Code (Articles 857-870), namely, (1) simple or com-
mon substitution, sometimes referred to as vulgar
substitution (Article 859), and (2) fideicommissary
substitution (Article 863). All other substitutions are
merely variations of these. The substitution provided
for by paragraph four of the Will of Linnie Jane
Hodges is not fideicommissary substitution, because
there is clearly no obligation on the part of C. N.
Hodges as the first heir designated, to preserve the
properties for the substitute heirs. (Consolacion Flor-
entino de Crisologo, et al. vs. Manuel Singson, G.R.
No. L-13876). At most, it is a vulgar or simple substi-
tution. However, in order that a vulgar or simple sub-
stitution can be valid, three alternative conditions
must be present, namely, that the first designated
heir (1) should die before the testator; or, (2) should
not wish to accept the inheritance; or, (3) should be
incapacitated to do so. None of these conditions apply
to C. N. Hodges, and, therefore, substitution provided
for by the above-quoted provision of the Will is not au-
thorized by the Code, and therefore, it is void. Man-
resa, commenting on these kinds of substitution,
meaningfully stated that: ‘ x x x cuando el testador in-
stituye un primer heredero, y por fallecimiento de
este, nombra otro u otros, ha de entenderse que estas
segundas designaciones solo han de llegar a tener
efectividad en el caso de que el primer instituido
muera antes que al testador, fuera o no esta su ver-
dadera intention, x x x’ (6 Manresa, 7 a ed., pag.
175.) In other words, when another heir is designated
to inherit upon the death of a first heir, the second des-
ignation can have effect only in case the first instituted
heir dies before the testator, whether or not that was
the true intention of said testator. Since C. N. Hodges
did not die before Linnie Jane Hodges, the provision
for substitution contained in Linnie Jane Hodges’ Will

is void.
“(d) In view of the invalidity of the provision for
substitution in the Will, C. N. Hodges’ inheritance to
the entirety of the Linnie Jane Hodges estate is irrevo-
cable and final.
xxx xxx xxx
“At this juncture, it may be stated that we are
not overlooking the fact that it is PCIB’s contention
that, viewed as a substitution, the testamentary dis-
position in favor of Mrs. Hodges’ brothers and sisters
may not be given effect. To a certain extent, this con-
tention is correct. Indeed, legally speaking, Mrs.
Hodges’ will provided neither for a simple or vulgar
substitution under Article 859 of the Civil Code nor
for a fideicommissary substitution under Article 863
thereof. There is no vulgar substitution therein be-
cause there is no provision for either (1) predecease of
the testator by the designated heir or (2) refusal or (3)
incapacity of the latter to accept the inheritance, as
required by Article 859; and neither is there a fidei-
commissary substitution therein because no obliga-
tion is imposed thereby upon Hodges to preserve the
estate or any part thereof for anyone else. But from
these premises, it is not correct to jump to the con-
clusion, as PCIB does, that the testamentary disposi-
tions in question are therefore inoperative and invalid.
“The error in PCIB’s position lies simply in the
fact that it views the said disposition exclusively in
the light of substitutions covered by the Civil Code
section on that subject, (Section 3, Chapter 2, Title IV,
Book III) when it is obvious that substitution occurs
only when another heir is appointed in a will ‘so that
he may enter into inheritance in default of the heir
originally instituted,’ (Article 857, Id.) and, in the pre-
sent case, no such possible default is contemplated.
The brothers and sisters of Mrs. Hodges are not sub-
stitutes for Hodges because, under her will, they are
not to inherit what Hodges cannot, would not or may
not inherit, but what he would not dispose of from his
inheritance; rather, therefore, they are also heirs in-
stituted simultaneously with Hodges, subject, how-

ever to certain conditions, partially resolutory insofar
as Hodges was concerned and correspondingly sus-
pensive with reference to his brothers and sisters-in-
law. It is partially resolutory, since it bequeaths unto
Hodges the whole of her estate to be owned and en-
joyed by him as universal and sole heir with absolute
dominion over them only during his lifetime, which
means that while he could completely and absolutely
dispose of any portion thereof inter vivos to anyone
other than himself, he was not free to do so mortis
causa, and all his rights to what might remain upon
his death would cease entirely upon the occurrence of
that contingency, inasmuch as the right of his broth-
ers and sisters-in-law to the inheritance, although
vested already upon the death of Mrs. Hodges, would
automatically become operative upon the occurrence
of the death of Hodges in the event of actual existence
of any remainder of her estate then.
“Contrary to the view of respondent Magno,
however, it was not the usufruct alone of her estate,
as contemplated in Article 869 of the Civil Code, that
she bequeathed to Hodges during his lifetime, but the
full ownership thereof, although the same was to last
also during his lifetime only, even as there was no re-
striction whatsoever against his disposing or convey-
ing the whole or any portion thereof to anybody other
than himself. The Court sees no legal impediment to this
kind of institution, in this jurisdiction or under Philippine
law, except that it cannot apply to the legitime of
Hodges as the surviving spouse, consisting of one-half
of the estate, considering that Mrs. Hodges had no
surviving ascendants nor descendants. (Arts. 872,
900, and 904, New Civil Code.)”
Thus, if no absolute obligation is imposed upon the first

heir to preserve the property and to transmit it to the second
heir, there is no fideicomisariCL The institution is not neces-
sarily void; it may be valid as some other disposition, but it is
not a fideicomisaria. In PCIB, the Court held such an insti-
tution to be a simultaneous institution—on the one hand, of
Hodges subject to a resolutory condition, on the other, of his
brothers-and sisters-in-law subject to a suspensive condition;

but not a fideicomisaria “because no obligation is imposed
thereby upon Hodges to preserve the estate or any part thereof
for anyone else.”
Period of the first heir's tenure:
“. . . si serial o (el testador) dia para la entrega,

limitando a determinado plazo el aprovechamiento de
la herencia por el fiduciario, a dicha epoca habra de
estarse, respetando la voluntad del testador, que es la
ley imperante en la sucesion testamentaria; pero si no
fijo plazo para la entrega, debe entenderse que dejo
esta al arbitrio del fiduciario, y segun opinion
unanime de Gomez, Gutierrez y de la generalidad de
los tratadistas, en dicho caso, y lo mismo cuando se
dudare del tiempo en que debe verificarse tal entrega,
se reputa que es para despues de la muerte del fidu-
ciario, por la presuncion, derivada del hecho de su
llamamiento, de que la intention del testador al insti-
tuirle, fue favorecerle con el goce de la herencia de por
vida, por subsistir durante ella comun y ordinaria-
mente los mismos motivos tenidos en cuenta para
otorgarle ese beneficio” (6 Manresa, op. cit., p. 129).19
Summary of Manresa’s comments re: tenure of fiduciary:

A. Primary rule—the period indicated by the testator.
B. Secondary rule—if the testator did not indicate a pe-
riod, then the fiduciary’s lifetime.
19 “...if (the testator) specified the day for the transmission, restricting to
a fixed period the enjoyment by the fiduciary of the inheritance, at the arrival
of said period he will have to deliver it, in compliance with the testator’s will,
which is the governing law in testamentary succession: but if the testator did
not set a period for delivery, it should be understood that he left this to the
fiduciary's discretion, and, according to the unanimous opinion of Gomez, Gu-
tierrez and other commentators, in such a case, as well as when the time of
delivery is in doubt, the delivery should be upon the fiduciary’s death, on the
presumption, drawn from the institution itself, that the testator’s intention in
instituting the fiduciary was to benefit him with the enjoyment of the property
during his lifetime since the testator's motive in giving the testamentary benefit
usually and ordinarily will hold good for the duration of the fiduciary's life.”
Re: #5—both heirs must be living and qualified to succeed

at the time of the testator’s death.
Living—This requisite is defined in Articles 40-41 (q.v.)

Qualified—Articles 1024-1034 (infra) govern this.
Note that this two-fold requirement is to be met only upon
the testator’s death, and this applies not only to the fiduciary
but to the second heir as well. Thus, the second heir need not
survive the first heir; if the second heir dies before the first
heir, the second heir’s own heirs merely take his place (Vide
Article 866, infra).
ARTICLE 864. A fideicommissary substitution can

never burden the legitime. (782a)
The legitime passes by strict operation of law, therefore

the testator has no power over it. This article is echoed by Arti-
cles 872 and 904, par. 2.
ARTICLE 865. Every fideicommissary substitution

must be expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheri-

tance to the second heir, without other deductions than
those which arise from legitimate expenses, credits and
improvements, save in the case where the testator has pro-
vided otherwise. (783)
I. First paragraph—Manner of imposing a fideicomisaria:

express.
Two ways of making an express imposition:
a) by the use of the term fideicommissary, or
b) by imposing upon the first cond heir the abso-
lute obligation to preserve and to transmit to the
second heir. (Vide Article 867, par. 1)
II. Allowable deductions:

1. The general rule is that the fiduciary should de-
liver the property intact and undiminished to the
fideicommissary heir upon the arrival of the pe-

riod.
2. The only deductions allowed, in the absence of a
contrary provision in the will are:
a) legitimate expenses,
b) credits,
c) improvements.
Coverage of legitimate expenses and improvements: neces-
sary and useful expenses, but not ornamental expenses.
3. Damage to, or deterioration of, property:
If caused by a fortuitous event or ordinary wear
and tear—fiduciaiy not liable.
If caused by fiduciary’s fault or negligence—
fiduciary liable.
ARTICLE 866. The second heir shall acquire a right

to the succession from the time of the testator’s death,
even though he should die before the fiduciary. The right of
the second heir shall pass to his heirs. (784)
Vide comments under Requisite #5 of Art. 863 (supra). The

second heir’s right vests upon the testator’s death, conformably
to Article 777 and also to Article 878 (since, as far as the sec-
ond heir is concerned, the institution of him is one subject to a
suspensive term).
Thus, the second heir does not have to survive the first
heir in order for the substitution to be effective. The second
heir’s own heirs simply take his place; i.e., succeed to the
vested right already possessed by the second heir.
ARTICLE 867. The following shall not take effect:

(1) Fideicommissary substitutions which are not
made in an express manner, either by giving them this
name, or imposing upon the fiduciary the absolute obli-
gation to deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition

to alienate, and even a temporary one, beyond the limit
fixed in Article 863;
(3) Those which impose upon the heir the charge of
paying to various persons successively, beyond the limit
prescribed in Article 863, a certain income or pension;
(4) Those which leave to a person the whole or part of
the hereditary property in order that he may apply or in-
vest the same according to secret instructions communi-
cated to him by the testator. (785a)
Par. 1—Vide comments under Article 865.

Note that the lack of this element does not, by that fact
alone, nullify the institution. It only means that the institution
is not a fideicomisaria; it could, however, be something else, as
was the case in PCIB v. Escolin (supra. Vide Article 863).
Par. 2—a) If there is a fideicomisaria, the limit is the first
heir’s lifetime. If there is no fideicomisaria, the
limit is 20 years (Vide, Article 870)
Par. 3—Conformably to the limits set in Article 863, there
can only be two beneficiaries of the pension, one
after the other, and the second must be one de-
gree from the first. There is no prohibition, how-
ever, on simultaneous beneficiaries.
Par. 4—The ostensible heir here is in reality only a
dummy, because, in reality, the person intended
to be benefited is the one to whom the secret in-
structions refer. The obvious purpose of such a
surreptitious disposition is to circumvent some
prohibition or disqualification.
This paragraph makes the entire provision void. The prac-

tical problem here, however, is the difficulty of establishing the
fact of circumvention. Supposing the ostensible heir conceals or
destroys the secret instructions (something fairly easy to do)
and claims as heir under the testamentary provision as
worded, what then?
ARTICLE 868. The nullity of the fideicommissary

substitution does not prejudice the validity of the institu-
tion of the heirs first designated; the fideicommissary
clause shall simply be considered as not written. (786)
I. If the fideicommissary substitution is void or inef-
fective, the institution of the first heir simply becomes pure and
unqualified.
II. Nullity or ineffectivity of the institution of the first heir
(fiduciary): This article does not provide for a case where it is
the institution of the first heir that is void or ineffective. What
is the rule in such a case?
The distinguished civilist Justice Vitug opines:
“When the fiduciary predeceases or is unable to

succeed, the fideicommissaiy heir takes the inheri-
tance upon the death of the decedent. (Vitug, Civil
Law, Vol. II, 2003, p. 225). He, however, does not
elaborate.”
Suffice it to say that there is much to recommend the view
that the nullity or inefficacy of the institution of the fiduciary
should not nullify the institution of the fideicommissary heir,
but, on the contrary, should make the right of the latter abso-
lute and effective upon the testator’s death, as if no fiduciary
had been instituted. Manresa bids us bear in mind that the will
of the testator in institutions of this nature is to transmit to the
fideicommissary heir the property covered by the fidecommis-
sary substitution, independently of the will of the fiduciary. (6
Manresa, op. cit., p. 214).
ARTICLE 869. A provision whereby the testator
leaves to a person the whole or part of the inheritance, and
to another the usufruct, shall be valid. If he gives the usu-
fruct to various persons, not simultaneously, but succes-
sively, the provisions of Article 863 shall apply. (787a)
If the testator institutes successive usufructuaries, there
can only be two usufructuaries, one after the other, and, as to
the two of them, all the requisites of Article 863 (fideicomisaria)
must be present.
ARTICLE 870. The dispositions of the testator declar-

ing all or part of the estate inalienable for more than
twenty years are void, (n)
I. If the testator imposes a longer period than 20 years,

the prohibition is valid only for 20 years.
II. If there is a fideicommissary substitution, this time
limitation will not apply. Rather, Article 863 will apply, which
allows, as a period, the lifetime of the first heir.
SECTION 4.—CONDITIONAL TESTAMENTARY DISPOSI-

TIONS AND TESTAMENTARY DISPOSITIONS WITH A TERM
ARTICLE 871. The institution of an heir may be made

conditionally, or for a certain purpose or cause. (790a)
I. This section treats of three kinds of testamentary dis-

positions:
1. conditional dispositions;
2. dispositions with a term;
3. dispositions with a mode (modal dispositions).
II. Inaccuracies in Section heading and in the wording of
this article:
A. Incomplete section heading—does not include modal
dispositions.
B. Incomplete wording of article—does not include dis-
positions with a term.
III. Definitions:
A. C
ondition—defined obliquely in Article 1179, par.
1.20
B. Term—defined obliquely in Article 1193, pars. 1 and

3.21
20 "Article 1179. Every obligation whose performance does not depend
upon a future or uncertain event, or upon a past event unknown to the parties, is
demandable at once, x x x”
21 “Article 1193. Obligations for whose fulfillment a day certain has
been fixed, shall be demandable only when that day comes.

C. Mode—defined obliquely in Article 882.22

IV. Proper order of provisions in this section:
General provisions—Articles 871 and 872
Conditions—Articles 873, 874, 875, 876, 877, 883 (par. 2),
879, 880, 881, 884
Terms—Articles 878 and 885
Modes—Articles 882 and 883 (par. 1)
GENERAL PROVISIONS:
ARTICLE 871 (supra)—The right of the testator to impose
conditions, terms or modes springs from testamentary freedom.
If he has the right to dispose of his estate mortis causa, then he
has the right to make the dispositions subject to a condition,
term, or mode.
ARTICLE 872. The testator cannot impose any

charge, condition or substitution whatsoever upon the le-
gitimes prescribed in this Code. Should he do so, the same
shall be considered as not imposed. (813a)
I. The legitime passes by strict operation of law, inde-

pendently of the testator’s will. This article is a logical conse-
quence of that principle.
II. This article is echoed in Article 904, par. 2 (infra).
XXX xxx xxx

“A day certain is understood to be that which must necessarily come, al-
though it may not be known when, xxx”
22 “Article 882. The statement of the object of the institution, or the
application of the property left by the testator, or the charge imposed by him,
shall not be considered as a condition unless it appears that such was his
intention.
'That which has been left in this manner may be claimed at once pro-
vided that the instituted heir or his heirs give security for compliance with the
wishes of the testator and for the return of anything he or they may receive,
together with its fruits and interests, if her or they should disregard this obli-
gation. (797a)”
CONDITIONS:
ARTICLE 873. Impossible conditions and those con-

trary to law or good customs shall be considered as not im-
posed and shall in no manner prejudice the heir, even if the
testator should otherwise provide. (792a)
I. The impossible or illegal condition is simply considered
not written. The testamentary disposition itself is not annulled;
on the contrary, it becomes pure.
1. The rule in donations [le. simple and remunera-
tory donations) is the same:
“Art. 727. Illegal or impossible conditions in
simple and remuneratory donations shall be consid-
ered as not imposed."
2. On the other hand, the rule in obligations is dif-

ferent:
“Art. 1183. Impossible conditions, those con-
trary to good customs or public policy and those pro-
hibited by law shall annul the obligation which de-
pends upon them. If the obligation is divisible, that
part thereof which is not affected by the impossible or
unlawful condition shall be valid.
3. Reason for difference in rule—Testamentary dis-

positions and donations share a common element:
they are both gratuitous and spring from the
grantor’s liberality. The imposition of a condition
does not displace liberality as the basis of the
grant. On the other hand, in obligations which
are onerous (which is what Article 1183 refers to),
the condition that is imposed becomes an integral
part of the causa of the obligation. The elimina-
tion of that condition for being impossible or ille-
gal results in a failure of cause.
ARTICLE 874. An absolute condition not to contract
a first or subsequent marriage shall be considered as not
written unless such condition has been imposed on the
widow or widower by the deceased spouse, or by the latter’s

ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or
some personal prestation may be devised or bequeathed to
any person for the time during which he or she should re-
main unmarried or in widowhood. (793a)
Conditions prohibiting marriage:
A. If a first marriage is prohibited—Condition always
considered not imposed.
B. If a subsequent marriage is prohibited:
1. If imposed by the deceased spouse or by
his/her ascendants or descendants—valid
2. If imposed by anyone else-considered not written
C. The second paragraph of this article may provide the
testator, if he so desires, a means of terminating the
testamentary benefaction should the heir contract
marriage (even a first one). The wording of the dis-
position will be crucial; it should not be so worded
as to constitute a prohibition forbidden in the first
paragraph. An example is not difficult to phrase.
D. Necessity of caution Muciana—Since this condition
(assuming it is validly imposed) is negative in na-
ture, is a caution Muciana required, as in Article
879, infra?
E. Condition to contract marriage—This article does
not prohibit the imposition of a condition to marry
(either with reference to a particular person or not).
Quod non vetitum, licet
Neither does this article declare void a relative prohibition.
ARTICLE 875. Any disposition made upon the con-

dition that the heir shall make some provision in his will in
favor of the testator or of any other person shall be void.
(794a)
I. Scriptura captatoria—The Digest provided: “Captatoriae

scripturae neque in hereditatibus, neque in legatis valent." (Leg-
acy-hunting dispositions, whether to heirs or legatees, are
void.)
II. Reasons for the prohibition:

1. The captatoria converts testamentary grants into
contractual transactions;
2. It deprives the heir of testamentary freedom;
3. It gives the testator the power to dispose mortis
causa not only of his property but also of his
heir’s. (6 Manresa, op. cit p. 162).
III. What is declared void: Note that it is not merely the

condition that is declared void but the testamentary disposition
itself which contains the condition.
ARTICLE 876. Any purely potestative condition im-
posed upon an heir must be fulfilled by him as soon as he
learns of the testator’s death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again. (795a)
ARTICLE 877. If the condition is casual or mixed, it
shall be sufficient if it happen or be fulfilled at any time
before or after the death of the testator, unless he has pro-
vided otherwise.
Should it have existed or should it have been fulfilled
at the time the will was executed and the testator was un-
aware thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it
can no longer exist or be complied with again. (796)
ARTICLE 883, par. 2. If the person interested in the
condition should prevent its fulfillment, without the fault
of the heir, the condition shall be deemed to have been
complied with.
ARTICLE 879. If the potestative condition imposed

upon the heir is negative, or consists in not doing or not
giving something, he shall comply by giving a security that
he will not do or give that which has been prohibited by the
testator, and that in case of contravention he will return
whatever he may have received, together with its fruits and
interests. (800a)
I. These articles govern potestative, casual, and mixed
conditions.
Potestative condition—one that depends solely on the will
of the heir/devisee/legatee
Casual condition—one that depends on the will of a third
person or on chance
Mixed condition—one that depends partly on the will of the
heir/devisee/legatee and partly either on the will of a third per-
son or chance.
II. Rules on Potestative, Casual, Mixed Conditions:
A. Potestative (Article 876)
Positive:
1. General rule—must be fulfilled as soon as the heir
learns of the testator’s death
Exception—if: (a) the condition was already

complied with at the time the heir learns of
the testator’s death, and
(b) the condition is of such a nature that it can-
not be fulfilled again.
2. Constructive compliance (Article 883, par. 2)—Con-
dition deemed fulfilled
Negative: (Article 879)
Heir must give security to guarantee (caucion Muciana) the
return of the value of property, fruits, and interests, in case of
contravention. [This is the first of three instances where a cccu-
cion Muciana is required. The other two: Art. 885, par. 2 (infra]
and Art. 882 [infra)]
B. Casual or mixed (Article 877)
1. General rule—may be fulfilled at any time (before
or after testator’s death), unless testator provides
otherwise.
Qualifications:
If already fulfilled at the time of execution of will:
a) if testator unaware of fact of fulfillment—
deemed fulfilled
b) if testator aware thereof—
i) if can no longer be fulfilled again—deemed
fulfilled
ii) if it can be fulfilled again—must be ful-
filled again.
2. Constructive compliance: (Article 883, par. 2)
a) if casual—not applicable
b) if mixed—
i) if dependent partly on chance—not appli-
cable
ii) if dependent partly on the will of a third
party:
1) if third party is an interested party—
applicable
2) if third party is not an interested party—not
applicable.
ARTICLE 880. If the heir be instituted under a sus-

pensive condition or term, the estate shall be placed under
administration until the condition is fulfilled, or until it
becomes certain that it cannot be fulfilled, or until the ar-
rival of the term.
The same shall be done if the heir does not give the
security required in the preceding article. (801a)
ARTICLE 881. The appointment of the administrator

of the estate mentioned in the preceding article, as well as
the manner of the administration and the rights and obliga-
tions of the administrator shall be governed by the Rules of
Court. (804a)
I. Between the time of the testator’s death and the time of

the fulfillment of the suspensive condition or of the certainty of
its non-occurrence—property is to be placed under administra-
tion.
A. if condition happens—the property will be turned
over to the instituted heir.
B. if it becomes certain that condition will not hap-
pen—property will be turned over to a secondary
heir (if there is one) or to the intestate heirs, as the
case may be.
II. Not applicable to institutions with a term: Despite the

wording of this article, it should not be applied to institutions
with a term, which are governed by Article 885, par. 2 (infrcij.
Otherwise, there will be an irreconcilable conflict with that arti-
cle, which mandates that before the arrival of the term, the
property should be given to the legal heirs.
The Spanish Code did not contain this contradiction be-
cause Article 801 of that Code (from which the present article is
derived) referred only to institutions “bqjo condition suspen-
SWCL ” There is now an inconsistency where none existed before,
thanks to the “unknown genius” referred to by J.B.L. Reyes in

his Comments (Vide Lawyers’ Journal, 30 November 1950,p.
558).
The reference of this article to institutions with a term
should be disregarded. This writer is not nimble enough to rec-
oncile the conflict between the two provisions.
III. Second paragraph—The property shall be in the ex-

ecutor’s or administrator’s custody until the heir furnishes the
caution Muciana.
Arts. 884 & 878 TESTAMENTARY SUCCESSION 323
IV. Procedural rules governing appointment of adminis-

trator—Rules 77-90, Revised Rules of Court.
ARTICLE 884. Conditions imposed by the testator
upon the heirs shall be governed by the rules established
for conditional obligations in all matters not provided for
by this Section. (791a)
Suppletorily governing conditional institutions are Articles
1179-1192, on conditional obligations.
TERMS:
ARTICLE 878. A disposition with a suspensive term

does not prevent the instituted heir from acquiring his
rights and transmitting them to his heirs even before the
arrival of the term. (799a)
I. When heir’s right vests—In dispositions with a term,
the heir’s right vests upon the testator’s death, conformably to
Article 777. Therefore, should the heir die before the arrival of
the (suspensive) term, he merely transmits his right to his own
heirs who can demand the property when the term arrives.
The rule in this article is similar to Article 866, in fidei-
commissary substitutions.
II. Rule in conditional institutions—In conditional insti-

tutions, what is the rule if the instituted heir dies before the
happening of the condition? This section is silent on the mat-
ter. The Spanish Code was less reticent:
“Art. 759. El heredero o legatario que muera
antes de que la condition se cumpla, aunque sobre-
viva al testador, no transmite derecho alguno a sus
herederos.”23
23 “Art. 759. The heir or devisee/legatee who dies before the happening
of the condition, even if he survives the testator, transmits no right to his

heirs.”
Inexplicably, the old article was not reproduced in the pre-

sent Code. The best that can be done to resolve the question is
to refer to Article 1034, par. 3:
“If the institution, devise, or legacy should be
conditional, the time of the compliance with the con-
dition shall also be considered."
The import of the quoted provision is that, in conditional

institutions, the heir should be living and qualified to succeed
both at the time of the testator’s death and at the time of the
happening of the condition.
ARTICLE 885. The designation of the day or time
when the effects of the institution of an heir shall com-
mence or cease shall be valid.
In both cases, the legal heir shall be considered as
called to the succession until the arrival of the period or its
expiration. But in the first case he shall not enter into pos-
session of the property until after having given sufficient
security, with the intervention of the instituted heir. (805)
(Note: The preposition “from” should be inserted be-
tween “or” and “its” in the second paragraph.)
I. If term suspensive—Before the arrival of the term, the
property should be delivered to the intestate heirs. A caucidn
Muciana has to be posted by them. (This is the second instance
where a caucidn Muciana has to be posted.)
II. If term resolutory—Before the arrival of the term, the
property should be delivered to the instituted heir. No caucidn
Muciana is required.
MODES:
ARTICLE 882. The statement of the object of the in-

stitution or the application of the property left by the tes-
tator, or the charge imposed on him, shall not be consid-
ered as a condition unless it appears that such was his in-
tention.
That which has been left in this manner may be

claimed at once provided that the instituted heir or his
heirs give security for compliance with the wishes of the
testator and for the return of anything he or they may re-
ceive, together with its fruits and interests, if he or they
should disregard this obligation. (797a)
I. The first paragraph of this article defines a mode

obliquely. In brief, a mode is an obligation imposed upon the
heir, without suspending—as a condition does—the effectivity
of the institution.
1. A mode must be clearly imposed as an obligation
in order to be considered as one. Mere preferences
or wishes expressed by the testator are not
modes.
2. A mode functions similarly to a resolutory condi-
tion. In fact, modes could very well have been ab-
sorbed in the concept of resolutory conditions.
Rabadilla vs. Court of Appeals
334 SCRA 522 (2000)
PURISIMA, J.:
xxx xxx xxx

In a Codicil appended to the Last Will and Tes-
tament of testatrix Aleja Belleza, Dr. Jorge Rabadilla,
predecessor-in-interest of the herein petitioner,
Johnny S. Rabadilla, was instituted as a devisee of
511,855 square meters of that parcel of land surveyed
as Lot No. 1392 of the Bacolod Cadastre. The said
Codicil, which was duly probated and admitted in
Special Proceedings No. 4046 before the then Court of
First Instance of Negros Occidental, contained the fol-
lowing provisions:
“FIRST
I give, leave and bequeath the following property
owned by me to Dr. Jorge Rabadilla resident of 141 P.
Villanueva, Pasay City:
(a) Lot No. 1392 of the Bacolod Cadastre, cov-

ered by Transfer Certificate of Title No. RT-4002
(10942), which is registered in my name according to
the records of the Register of Deeds of Negros Occi-
dental.
(b) That should Jorge Rabadilla die ahead of

me, the aforementioned property and the rights which
I shall set forth hereinbelow, shall be inherited and
acknowledged by the children and spouse.
xxx
FOURTH
(a) It is also my command, in this my addition

(Codicil), that should I die and Jorge Rabadilla shall
have already received the ownership of the said Lot
No. 1392 of the Bacolod Cadastre, covered by Trans-
fer Certificate of Title No. RT-4002 (10942), and also
at the time that the lease of Balbinito G. Guanzon of
the said lot shall expire, Jorge Rabadilla shall have
the obligation until he dies, every year to give to Maria
Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs
of Export sugar and Twenty Five (25) piculs of Domes-
tic sugar, until the said Maria Marlina Coscolluela y
Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to

whom he shall give Lot No. 1392 of the Bacolod Ca-
dastre, covered by Transfer Certificate of Title No. RT-
4002 (10492), shall have the obligation to still give
yearly, the sugar as specified in the Fourth paragraph
of his testament, to Maria Marlina Coscolluela y
Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the

Lot No. 1392, in the event that the one to whom I
have left and bequeathed, and his heir shall later sell,
lease, mortgage this said Lot, the buyer, lessee, mort-
gagee, shall have also the obligation to respect and
deliver yearly ONE HUNDRED (100) piculs of sugar to

Maria Marlina Coscolluela y Belleza, on each month of
December, SEVENTY FIVE (75) piculs of Export and
TWENTY FIVE (25) piculs of Domestic, until Maria
Marlina shall die, lastly should the buyer, lessee or
the mortgagee of this lot, not have respected my com-
mand in this my addition (Codicil), Maria Marlina Co-
scolluela y Belleza, shall immediately seize this Lot
No. 1392 from my heir and the latter’s heirs, and
shall turn it over to my near desendants, (sic) and the
latter shall then have the obligation to give the ONE
HUNDRED (100) piculs of sugar until Maria Marlina
shall die. I further command in this my addition
(Codicil) that my heir and his heirs of this Lot No.
1392, that they will obey and follow that should they
decide to sell, lease, mortgage, they cannot negotiate
with others than my near descendants and my sister.”
Pursuant to the same Codicil, Lot No. 1392 was
transferred to the deceased, Dr. Jorge Rabadilla, and
Transfer Certificate of Title No. 44498 thereto issued
in his name.
Dr. Jorge Rabadilla died in 1983 and was sur-
vived by his wife Rufina and children Johnny (peti-
tioner), Aurora, Ofelia and Zenaida, all sumamed Ra-
badilla.
On August 21, 1989, Maria Marlena Coscolluela
y Belleza Villacarlos brought a complaint, docketed as
Civil Case No. 5588, before Branch 52 of the Regional
Trial Court in Bacolod City, against the above-
mentioned heirs of Dr. Jorge Rabadilla, to enforce the
provisions of subject Codicil. The Complaint alleged
that the defendant-heirs violated the conditions of the
Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philip-
pine National Bank and the Republic Planters Bank
in disregard of the testatrix’s specific instruction to
sell, lease, or mortgage only to the near descendants
and sister of the testatrix.
2. Defendant-heirs failed to comply with their
obligation to deliver one hundred (100) piculs of sugar
(75 piculs export sugar and 25 piculs domestic sugar)
to plaintiff Maria Marlena Coscolluela y Belleza from

sugar crop years 1985 up to the filing of the com-
plaint as mandated by the Codicil, despite repeated
demands for compliance.
3. The banks failed to comply with the 6th
paragraph of the Codicil which provided that in case
of the sale, lease, or mortgage of the property, the
buyer, lessee, or mortgagee shall likewise have the ob-
ligation to deliver 100 piculs of sugar per crop year to
herein private respondent.
The plaintiff then prayed that judgment be ren-
dered ordering defendant-heirs to reconvey/retum-
Lot No. 1392 to the surviving heirs of the Aleja
Belleza, the cancellation of TCT No. 44498 in the
name of the deceased, Dr. Jorge Rabadilla, and the
issuance of a new Certificate of Title in the names of
the surviving heirs of the late Aleja Belleza.
xxx xxx xxx
On July 22, 1991, the Regional Trial Court came
out with a decision, dismissing the complaint and
disposing as follows:
xxx xxx xxx
In the light of the aforegoing findings, the
Complaint being prematurely filed is DIS-
MISSED without prejudice.
SO ORDERED.
On appeal by plaintiff, the First Division of the
Court of Appeals reversed the decision of the trial
court: ratiocinating and ordering thus:
“Therefore, the evidence on record having
established plaintiff-appellant’s right to receive
100 piculs of sugar annually out of the produce
of Lot No. 1392; defendants-appellee’s obligation
under Aleja Belleza’s codicil, as heirs of the mo-
dal heir, Jorge Rabadilla, to deliver such amount
of sugar to plaintiff-appellant; defendants-
appellee’s admitted non-compliance with said
obligation since 1985; and, the punitive conse-
quences enjoined by both the codicil and the
Civil Code, of seizure of Lot No. 1392 and its re-

version to the estate of Aleja Belleza in case of
such non-compliance, this Court deems it
proper to order the reconveyance of title over Lot
No. 1392 from the estates of Jorge Rabadilla to
the estate of Aleja Belleza. However, plaintiff-
appellant must institute separate proceedings to
re-open Aleja Belleza’s estate, secure the ap-
pointment of an administrator, and distribute
Lot No. 1392 to Aleja Belleza’s legal heirs in or-
der to enforce her right, reserved to her by the
codicil, to receive her legacy of 100 piculs of
sugar per year out of the produce of Lot No.
1392 until she dies.
Accordingly, the decision appealed from is SET
ASIDE and another one entered ordering defendants-
appellees, as heirs of Jorge Rabadilla, to reconvey title
over Lot No. 1392, together with its fruits and inter-
ests, to the estate of Aleja Belleza.
SO ORDERED”.
xxx xxx xxx
The petition is not impressed with merit.
xxx xxx xxx
The Court of Appeals erred not in ruling that the insti-
tution of Dr. Jorge Rabadilla under subject Codicil is in the
nature of a modal institution and therefore, Article 882 of
the New Civil Code is the provision of law in point. Articles
882 and 883 of the New Civil Code provide:
Art. 882. The statement of the object of
the institution or the application of the property
left by the testator, or the charge imposed on
him, shall not be considered as a condition
unless it appears that such was his intention.
That which has been left in this manner
may be claimed at once provided that the insti-
tuted heir or his heirs give security for compli-
ance with the wishes of the testator and for the
return of anything he or they may receive, to-
gether with its fruits and interests, if he or they
should disregard this obligation.
330 JOTTINGS AND JURISPRUDENCE A*1-885
Art. 883. When without the fault of the

heir, an institution referred to in the preceding
article cannot take effect in the exact manner
stated by the testator, it shall be complied with
in a manner most analogous to and in confor-
mity with his wishes.
The institution of an heir in the manner pre-
scribed in Article 882 is what is known in the law of
succession as institution sub modo or a modal institu-
tion. In a modal institution, the testator states (1) the
object of the institution, (2) the purpose or application
of the property left by the testator, or (3) the charge
imposed by the testator upon the heir. A “mode” im-
poses an obligation upon the heir or legatee but it
does not affect the efficacy of his rights to the succes-
sion. On the other hand, in a conditional testamen-
tary disposition, the condition must happen or be ful-
filled in order for the heir to be entitled to succeed the
testator. The condition suspends but does not obli-
gate; and the mode obligates but does not suspend.
To some extent, it is similar to a resolutory condition.
(Jottings and Jurisprudence in Civil Law, Ruben
Balane, p. 249).
From the provisions of the Codicil litigated upon,
it can be gleaned unerringly that the testatrix in-
tended that subject property be inherited by Dr. Jorge
Rabadilla. It is likewise clearly worded that the testa-
trix imposed an obligation on the said instituted heir
and his successors-in-interest to deliver one hundred
piculs of sugar to the herein private respondent,
Marlena Coscolluela Belleza, during the lifetime of the
latter. However, the testatrix did not make Dr. Jorge
Rabadilla’s inheritance and the effectivity of his insti-
tution as a devisee, dependent on the performance of
the said obligation. It is clear, though, that should the
obligation be not complied with, the property shall be
turned over to the testatrix’s near descendants. The
manner of institution of Dr. Jorge Rabadilla under
subject Codicil is evidently modal in nature because it
imposes a charge upon the instituted heir without,
however, affecting the efficacy of such institution.
Then too, 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.
xxx xxx xxx

II. Caucidn Muciana—should be posted by the Instituted
heir (the third instance of Caucidn Muciana).
ARTICLE 883, par. 1. When without the fault of the

heir, an institution referred to in the preceding article can-
not take effect in the exact manner stated by the testator,
it shall be complied with in a manner most analogous to
and in conformity with his wishes.
The intention of the testator should always be the guiding
norm in determining the sufficiency of the analogous performance.
SECTION 5.—LEGITIME
I. System of legitimes: Our successional system, closely

patterned after that of the Spanish Code, reserves a portion of
the net estate of the decedent in favor of certain heirs, or
groups of heirs, or combination of heirs.
The portion that is so reserved is called the legitime (a
transliteration from the Spanish legitima). [The reserve heredi-
taire of the French Code and the PJlichtteil of the German],
The portion that is left available for testamentary disposition af-

ter the legitimes have been covered is the free or disposable portion.
The heirs for whom the law reserves a portion are called
compulsory heirs.
Nature of legitimes.—The legitimes are set aside by
mandate of the law. Thus, the testator is required to set
aside or reserve them. Otherwise stated, the testator is
prohibited from disposing by gratuitous title (either inter
vivos or mortis causa) of these legitimes. Dispositions by
onerous title are not prohibited because, in theory, noth-

ing is lost from the estate in an onerous disposition, since
there is merely an exchange of values. “When the disposi-
tion is for valuable consideration, there is no diminution of
the estate but merely a substitution of values, that is, the
property sold is replaced by the equivalent monetary con-
sideration.” Manongsong us. Estimo, 404 SCRA 683 [2003],
Vide also Sps. Joaquin us. CA, 416 SCRA 263 [2003])
Because the testator is compelled to set aside the le-
gitimes, the heirs in whose favor the legitimes are set aside
are called compulsory heirs. The compulsion is not on the
part of the heirs (who are free to accept or reject the in-
heritance [ Vide Article 1041]), but on the part of the testa-
tor.
II. Major changes in the law of legitimes.
1. The abolition of the mejora or betterment.
“808. Constituyen la legitima de los hijos y de-
scendientes legitimos las dos terceras partes del
haber hereditario del padre y de la madre.
Sin embargo, podran estos disponer de una

parte de las dos que forman la legitima, para aplicarla
como mejora a sus hijos y descendientes legitimos.
La tercera parte restante sera de libre disposicion.”24
“823. El padre o la madre podran disponer a

favor de alguno o algunos de sus hijos o descendi-
entes de una de los terceras partes destinadas a
legima.
Esta porcion se llama mejora.”25
24 "Art. 808. The legitime of the legitimate children and descendants
consists of two-thirds of the hereditary estates of the father and the mother.
“However, the testator may dispose of one half of these two-thirds as bet-
terment in favor of their legitimate children and descendants.
‘The other third is of free disposal.”
25 “Art. 823. The father or mother may dispose of one-half of the two-
thirds intended as legitime in favor of one, some, or all of his or her legitimate
children or descendants.
“This portion is called the betterment.”
2. The surviving spouse’s share is upgraded from a

usufructuary interest (Vide Articles 834, 836, 837
and 838, Spanish Code) to full ownership, albeit
of a very variable share (Vide infra).
3. The grant of legitimaiy rights to children classi-

fied (under the New Civil Code) as illegitimate
other than natural (commonly called spurious)
and a further change, under the Family Code,
abolishing the distinction between natural and
spurious children and giving all illegitimate chil-
dren the same legitimaiy shares [Vide Articles
163, 165 and 176, Family Code).
ARTICLE 886. Legitime is that part of the testator's
property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called com-
pulsory heirs. (806)
This article gives the statutory definition of legitime. Rele-
vant points are discussed supra.
ARTICLE 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect
to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascen-
dants, with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural chil-
dren by legal fiction;
(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must
be duly proved.
The father or mother of illegitimate children of the

three classes mentioned, shall inherit from them in the
manner and to the extent established by this Code. (807a)
I. This article enumerates the compulsory heirs. The
enumeration is exclusive and may be classified as follows:
A. Primary compulsory heirs—legitimate children
and/or descendants
B. Secondary compulsory heirs—legitimate parents
and/or ascendants; illegitimate parents
C. Concurring compulsory heirs—surviving spouse; il-
legitimate children and/or descendants
Primary—They are so called because they are preferred
over, and exclude, the secondary.
Secondary—They are so called because they receive le-
gitimes only in default of the primary.
1. Legitimate parents/ascendants—only in default of
legitimate children/descendants
2. Illegitimate parents—only in default of any kind of
children/ descendants
Concurring—They are so called because they succeed as
compulsory heirs together with primary or secondary heirs (ex-
cept only that illegitimate children/descendants exclude ille-
gitimate parents).
II. The Compulsory heirs
A. 1. legitimate children—Specified in Articles 164
and 54 of the Family Code. Legitimated children
fall under this classification (Article 179, Family
Code)
Adopted children have, in relation to their adopt-
ers, the same successional rights as legitimate children
(Secs. 17 & 18, R.A. 8552 [Domestic Adoption Act of
1998]).
The law does not specify how the legitimate children

should share in the legitime. There is universal agreement,
however, that they will share equally, regardless of age, sex, or
marriage of origin.
2. legitimate descendants—The general rule is: the
nearer exclude the more remote; thus, children,
if all qualified, will exclude grandchildren, and
so on. The qualification to this rule is represen-
tation (succession per stirpes), when proper.
B. 1. legitimate parents
The adopter has, in relation to the adopted, the
same successional right as legitimate parents. Under
present law (Sec. 18, R.A. 8552), the adopter displaces
the biological parents in the successional scheme rela-
tive to the estate of the adopted.
2. legitimate ascendants.—Only in default of par-
ents. The rule—absolute in the ascending line—
is: the nearer exclude the more remote. Vide dis-
cussion under Articles 889-890.
C. Surviving spouse—
1. The surviving spouse referred to here is the
spouse of the decedent, not the spouse of a child
who has predeceased the decedent.
Rosales vs. Rosales
148 SCRA 69 (1987)
GANCAYCO, J.:
xxx xxx xxx

It appears from the record of the case that on
February 26, 1971, Mrs. Petra V. Rosales, resident of
Cebu City, died intestate. She was survived by her
husband Fortunato T. Rosales and their two (2) chil-
dren Magna Rosales Acebes and Antonio Rosales. An-
other child, Carterio Rosales, predeceased her, leaving
behind a child, Macikequerox Rosales, and his widow
Irenea C. Rosales, the herein petitioner. The estate of
the deceased has an estimated gross value of about

Thirty Thousand Pesos (P30.000.00).
On July 10, 1971, Magna Rosales Acebes insti-
tuted the proceedings for the settlement of the estate
of the deceased xxx. Thereafter, the trial court ap-
pointed Magna Rosales Acebes administratrix of the
said estate.
In the course of the intestate proceedings, the
trial court issued an Order dated June 16, 1972 de-
claring the following individuals the legal heirs of the
deceased and prescribing their respective share of the
estate—
Fortunato T. Rosales (husband), 1/4; Magna R.
Acebes (daughter) 1/4; Macikequerox Rosales, 1/4;
and Antonio Rosales (son), 1/4.
This declaration was reiterated by the trial court
in its Order dated February 4, 1975.
These Orders notwithstanding, Irenea Rosales
insisted in getting a share of the estate in her capacity
as the surviving spouse of the late Carterio Rosales,
son of the deceased, claiming that she is compulsory
heir of her mother-in-law together with her son, Ma-
cikequerox Rosales.
Thus, Irenea Rosales sought the reconsideration
of the aforementioned Orders. The trial court denied
her plea. Hence, this petition.
In sum, the petitioner poses two (2) questions for
Our resolution. First—is a widow (surviving spouse)
an intestate heir of her mother-in-law? Second—are
the Orders of the trial court which excluded the widow
from getting a share of the estate in question final as
against the said widow?
Our answer to the first question is in the nega-
tive.
Intestate or legal heirs are classified into two (2)
groups, namely, those who inherit by their right, and
those who inherit by the right of representation. Re-
stated, an intestate heir can only inherit either by his
own right, as in the order of intestate succession pro-
vided for in the Civil Case, or by the right of represen-

tation provided for in Article 981 of the same law.
xxx xxx xxx
There is no provision in the Civil Code which
states that a widow (surviving spouse) is an intestate
heir of her mother-in-law. The entire Code is devoid of
any provision which entitles her to inherit from her
mother-in-law either by her right or by the right of
representation. The provisions of the Code which re-
late to the order of intestate succession (Articles 978
to 1014) enumerate with meticulous exactitude the
intestate heirs of a decedent, with the State as the fi-
nal intestate heir. The conspicuous absence of a pro-
vision which makes a daughter-in-law an intestate
heir of the deceased all the more confirms Our obser-
vation. If the legislature intended to make the surviv-
ing spouse an intestate heir of the parent-in-law, it
would have so provided in the Code.
Petitioner argues that she is a compulsory heir
in accordance with the provisions of Article 887 of the
Civil Code.
xxx xxx xxx
The aforesaid provision of the law refers to the
estate of the deceased spouse in which case the sur-
viving spouse (widow or widower) is a compulsory
heir. It does not apply to the estate of a parent-in-law.
Indeed, the surviving spouse is considered a
third person as regards the estate of the parent-in-
law.
xxx xxx xxx
By the same token, the provision of Article 999
of theCivil Code aforecited does not supportpeti-
tioner’s claim. A careful examination of the said Arti-
cle confirms that the estate contemplated therein is
the estate of the deceased spouse. The estate which is
the subject matter of the intestate estate proceedings
in this case is that of the deceased Petra V. Rosales,
the mother-in-law of the petitioner. It is from the es-
tate of the Petra V. Rosales that Macikequerox
Rosales draws a share of the inheritance by the right

of representation as provided by Article 981 of the
Code.
The essence and nature of the right of represen-

tation is explained by Articles 970 and 971 of the Civil
Code.
xxx xxx xxx

Article 971 explicitly declares that Macikequerox
Rosales is called to succession by law because of his
blood relationship. He does not succeed his father,
Carterio Rosales (the person represented) who prede-
ceased his grandmother, Petra Rosales, but the latter
whom his father would have succeeded. Petitioner
cannot assert the same right of representation as she
has no filiation by blood with her mother-in-law.
Petitioner however contends that at the time of

the death of her husband Carterio Rosales he had an
inchoate or contingent right to the properties of Petra
Rosales as compulsory heir. Be that as it may, said
right of her husband was extinguished by his death
that is why it is their son Macikequerox Rosales who
succeeded from Petra Rosales by right of representa-
tion. He did not succeed from his deceased father,
Carterio Rosales."
2. The marriage between the decedent and his/her

surviving spouse must be either valid or voidable;
if voidable, there should have been no final decree
of annulment at the time of the decedent’s death.
Quaerendum: If the consort dies during the pendency of a
petition for declaration of nullity under Article 36 or for nullity
under Article 40, both of the Family Code, should the pro-
ceedings be dismissed or should they proceed?
The statement in Carino vs. Cariho (351 SCRA 127 [2001])
leaves the question unanswered:
“Under article 40 of the Family Code, the abso-

lute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void.

Meaning, where the absolute nullity of a previous
marriage is sought to be invoked for purposes of con-
tracting a second marriage, the sole basis acceptable
in law, for said projected marriage to be free from le-
gal infirmity, is a final judgment declaring the previ-
ous marriage void. However, for purposes other than
remarriage, no judicial action is necessary to declare
a marriage an absolute nullity. For other purposes,
such as but not limited to the determination of heir-
ship, legitimacy or illegitimacy of a child, setlement of
estate, dissolution of property regime, or a criminal
case for that matter, the court may pass upon the va-
lidity of marriage even after the death of the parties
thereto, and even in a suit not directly instituted to
question the validity of said marriage, so long as it is
essential to the determination of the case.” (Carino vs.
Carino. 351 SCRA 127, pp. 131-132)
2.1 Mere estrangement is not a ground for

the disqualification of the surviving
spouse as heir.
2.2 Effect of decree of legal separation:
a) On the offending spouse—disqua-
lification
b) On the innocent spouse—nothing
2.3 Death of either spouse during the pen-
dency of a petition for legal separation—
dismissal of the case:
Lapuz vs. Eufemio
43 SCRA 177 (1972)
REYES, J.B.L., J.:
xxx xxx xxx

On 18 August 1953, Carmen O. Lapuz Sy filed a
petition for legal separation against Eufemio S. Eu-
femio, alleging, in the main, that they were married
civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as hus-
band and wife continuously until 1943 when her

husband abandoned her; that they had no child; that
they acquired properties during their marriage; and
that she discovered her husband cohabiting with a
Chinese woman named Go Hiok at 1319 Sisa Street,
Manila, on or about March 1949. She prayed for the
issuance of a decree of legal separation, which, among
others, would order that the defendant Eufemio S.
Eufemio should be deprived of his share of the conju-
gal partnership profits.
xxx xxx xxx
xxx. Before the trial could be completed (the
respondent was already scheduled to present surre-
buttal evidence on 9 and 18 June 1969), petitioner
Carmen O. Lapuz Sy died in a vehicular accident on
31 May 1969. Counsel for petitioner duly notified the
court of her death.
On 9 June 1969, respondent Eufemio moved to
dismiss the “petition for legal separation” on two (2)
grounds, namely: that the petition for legal separation
was filed beyond the one-year period provided for in
Article 102 of the Civil Code; and that the death of
Carmen abated the action for legal separation.
On 26 July 1969, the court issued the order un-
der review, dismissing the case. In the body of the or-
der, the court stated that the motion to dismiss and
the motion for substitution had to be resolved on the
question of whether or not the plaintiffs cause of ac-
tion has survived, which the court resolved in the
negative.
xxx xxx xxx
The first real issue in this case is: Does the
death of the plaintiff before final decree, in an action
for legal separation, abate the action? If it does, will
abatement also apply if the action involves property
rights?
An action for legal separation which involves
nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this juris-
diction) is purely personal. The Civil Code of the Philip-
pines recognizes this in its Article 100, by allowing only

the innocent spouse (and no one else) to claim legal
separation; and in its Article 108, by providing that the
spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal separa-
tion already rendered. Being personal in character, it
follows that the death of one party to the action causes
the death of the action itself—actio personalis moritur
cum persona.
xxx xxx xxx
A review of the resulting changes in property re-
lations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they
can not survive the death of the plaintiff if it occurs
prior to the decree. On the point, Article 106 of the
Civil Code provides:
“Art. 106. The decree of legal separation
shall have the following effects:
xxx xxx xxx
“(4) The offending spouse shall be dis-
qualified from inheriting from the innocent
spouse by intestate succession. Moreover, provi-
sions in favor of the offending spouse made in
the will of the innocent one shall be revoked by
operation of law."
From this article it is apparent that the right to

the dissolution of the conjugal partnership of gains (or
of the absolute community of property), the loss of
right by the offending spouse to any share of the prof-
its earned by the partnership or community, or his
disqualification to inherit by intestacy from the inno-
cent spouse as well as the revocation of testamentary
provisions in favor of the offending spouse made by
the innocent one, are all rights and disabilities that,
by the very terms of the Civil Code article, are vested
exclusively in the persons of the spouses; and by their
nature and intent, such claims and disabilities are
difficult to conceive as assignable or transmissible.
xxx xxx xxx

A further reason why an action for legal separa-

tion is abated by the death of the plaintiff, even if prop-
erty rights are Involved, is that these rights are mere ef-
fects of a decree of separation, their source being the
decree itself; without the decree such rights do not
come into existence, so that before the finality of a de-
cree, these claims are merely rights in expectation. If
death supervenes during the pendency of the action, no
decree can be forthcoming, death producing a more
radical and definitive separation; and the expected con-
sequential rights and claims would necessarily remain
unborn.
ACCORDINGLY, the appealed judgment of the

Manila Court of Juvenile and Domestic Relations is
hereby affirmed.
Note that, under the Lapuz ruling, it does not
matter who dies, whether it be the offending or the
innocent spouse.
D. 1. Illegitimate children—The Family Code (as al-

ready mentioned) has abolished the distinction
between natural and spurious children and gives
all of them—indiscriminately called illegitimate
children simply—equal legitimary portions (Arti-
cle 176, Family Code).
However, pursuant to Article 777, if death occurred
before the effectivity of the Family Code on 3 August 1988,
the old distinctions will apply and the spurious child gets
only 4/5 the share of the natural (Article 895).
2. Illegitimate descendants—The same rule applies

here as in the legitimate descending line: the
nearer exclude the more remote, without preju-
dice to representation when proper.
(It should be noted that the illegitimate child can be repre-

sented by both legitimate and illegitimate descendants, as dis-
tinguished from the legitimate child, who can be represented
only by legitimate descendants. For a fuller discussion, vide
comments under Articles 902 and 992.)
E. Illegitimate parents—
1. Note that, unlike the legitimate ascending line,
which includes ascendants of whatever degree,
the illegitimate ascending line includes only par-
ents; it does not go beyond the parents.
2. Note further that—as already pointed out earlier—
the illegitimate parents are secondary heirs of a
lower category than legitimate parents, because
the illegitimate parents are excluded by legitimate
and illegitimate children (Article 903) whereas le-
gitimate parents are excluded only by legitimate
children/descendants.
III. Variations in the legitimaiy portions.
1. The legitimaiy system of the Philippine Code
rests on a double foundation: exclusion and con-
currence. Consequently, the variations of the
portions assigned as legitime can be bewildering,
depending as they do on the given combination.
Out of the crazy quilt, however, emerges one general
rule—there is a basic quota of one-half (1/2) that is given
to one heir or one group of heirs. This general rule admits
of only three exceptions:
1) Article 894—surviving spouse and illegitimate
children
2) Article 900, par. 2—surviving spouse in a mar-
riage in articido mortis, with the conditions speci-
fied in that article
3) Article 903—surviving spouse and illegitimate
parents.
IV. The different combinations—
1) Legitimate children alone: 1/2 of the estate di-
vided equally (Art. 888)
2) Legitimate children and surviving spouse: legiti-
mate children—1/2 of the estate; surviving
spouse—a share equal to that of one child (Art.

892, par. 2)
3) One legitimate child and surviving spouse: le-
gitimate child—1/2 of the estate; surviving
spouse—1/4 of the estate (Art. 892, par. 1)
4) Legitimate children and illegitimate children: le-
gitimate children—1/2 of the estate; illegitimate
children—each will get 1/2 of share of one le-
gitimate child (Art. 176, Family Code)
5) Legitimate children, illegitimate children, and
surviving spouse: legitimate children—1/2 of the
estate; illegitimate children—each will get 1/2 of
share of one legitimate child; surviving spouse—a
share equal to that of one legitimate child. The
surviving spouse’s share is preferred over those of
the illegitimate children which shall be reduced if
necessaiy. (Art. 895)
6) One legitimate child, illegitimate children, and
surviving spouse: legitimate child—1/2 of the es-
tate; illegitimate children—each will get 1/2 of
share of the legitimate child; surviving spouse—
1/4 of the estate. The surviving spouse’s share is
preferred over those of the illegitimate children,
which shall be reduced if necessary. (Art. 895)
7) Legitimate parents alone: 1/2 of the estate (Art.
889)
8) Legitimate parents and illegitimate children: le-
gitimate parents—1/2 of the estate; illegitimate
children— 1 /4 of the estate (Art. 896)
9) Legitimate parents and surviving spouse: legiti-
mate parents—1/2 of the estate; surviving
spouse—1/4 of the estate (Art. 893)
10) Legitimate parents, illegitimate children, and sur-
viving spouse: legitimate parents—1/2 of the the
estate; illegitimate children—1/4 of the estate;
surviving spouse—1/8 of the estate (Art. 899)
11) Surviving spouse alone: 1/2 of the estate (Art.

900, par. 1) (or 1/3 if the marriage, being in ar-
ticulo mortis, falls under Article 900, par. 2)
12) Surviving spouse and illegitimate children; sur-
viving spouse—1/3 of the estate; illegitimate
children—1/3 of the estate (Art. 894)
13) Surviving spouse and illegitimate parents: sur-
viving spouse—1/4 of the estate; illegitimate
parents—1/4 of the estate (Art. 903)
14) Illegitimate children alone: 1/2 of the estate (Art.
901)
15) Illegitimate parents alone: 1/2 of the estate (Art.
903)
Note: 1) The term “legitimate child” or “legitimate chil-

dren” includes a legally adopted child, because of Section 18, of
RA 8552 (Domestic Adoption Act of 1998).
Quarendum: Is an adopted child entitled to a legitime from
his biological parents or ascendants?
This question did not arise under the Family Code, or
rather, the answer to it was clearly yes. Art. 189 (3) of the Fam-
ily Code provided: “x x x (3) The adopted shall remain an intes-
tate heir of his parents and other blood relatives.” Thus, the
adopted child was entitled to a legitime both from his adopter
and his biological parents. Now, the law is silent. It neither
gives nor denies an adopted child the right to a legitime from
his biological parents. True, Section 16 of the law states that
“all legal ties between the biological parent(s) and the adoptee
shall be severed . . .”, but that is unavailing to answer the
question raised, because Section 16 (as its title indicates) has
to do with parental authority.
This uncertainty could have been avoided by more careful
drafting.
On this question, the following is an excerpt from the au-
thor’s recent article, “Adoption and the Right to Succeed: A
Brief Overview.”
Does the adopted have the right to succeed

his biological parents or relatives by compulsory or
intestate succession? The answer is a deep and baf-
fling silence.
Section 16 (R.A. 8552) cannot be looked to for
an answer. Sec. 16 provides:
“SECTION 16. Parental Authority. - Except in
cases where the biological parent is the spouse of the
adopter, all legal ties between the biological parent(s)
and the adoptee shall be severed and the same shall
then be vested on the adopter(s)."
“All legal ties” are severed - - therefore the legal

ties of succession too? Hardly. Note that the section
heading is Parental Authority.
What then?
This is an unnecessary obscurity in the law, particu-
larly in view of the fact that the predecessor law - - the
Family Code - - despite its own imperfections, already pro-
vided clearly for the right of the adopted to succeed his
biological parents and other blood relatives by compulsory
and intestate succession.
ART. 9. No judge or court shall decline to ren-

der judgment by reason of the silence, obscurity or
insufficiency of the laws.”
Silence, obscurity, and insufficiency indeed!
Judges, however, (as also teachers, commentators, law

practitioners, students, and bar reviewees) have to have an an-
swer, and therefore have to make the best of a bad situation.
They can take either of two positions.
1. The adopted has no right of compulsory and in-
testate succession to his biological parents and rela-
tives.
In support of this position, the following may be

advanced:
a) The non-inclusion of Art. 189 (3) of the Family
Code manifests an intent to suppress it.
b) In order for the right to succeed to exist, there
must be a provision of law granting it.
c) There seems to be an intent in the new law to
sever all links between the adopted and his
biological family. This can be gleaned from
Sections 16, 17 and 18, above referred to.
2. The opposite view is that the adopted retains
his right to succeed his biological parents and relatives.
The following arguments may be put forward:

a) The repealing clause (Sec. 26) of the new law
does not explicitly repeal Art. 189 (3) of the
Family Code.
Sec. 26 provides:
“SECTION 26. Repealing Clause.—Any law,

presidential decree or issuance, executive order, letter
of instruction, administrative order, rule, or regulation
contrary to, or inconsistent with the provisions of this
Act is hereby repealed, modified, or amended accord-
ingly.”
Repeals are not favored; in case of doubt, an anterior law

stands. Additionally, the adopted’s right to succeed his biologi-
cal parents is neither contrary to, nor inconsistent with, the
adoptive relationship. Proof of this is that this right of succes-
sion had existed in prior adoption legislation.
b) The right in question is favorable to the

adopted. Doubts should be resolved in
favor of the adopted.
In the recent case of In the Matter of the Adoption of

Stephanie Nathy Astorga Garcia (GR 148311, 31 March 2005),
the Supreme Court, in an obiter, stated that “under Art. 189 (3)
of the Family Code and Sec. 18 of RA 8552 the adoptee remains
an intestate heir of his/her biological parent.”
Being obiter, the statement of course does not bind. The
issue in that case was whether an illegitimate child, upon
adoption by her natural father, could use the surname of her
natural mother as her middle name. Furthermore, there are
obiters and obiters, and this particular one is, at best, less than
impressive. Sec. 18 of RA 8552 will be scanned in vain for any
reference to the right of the adopted to succeed his biological
parents by compulsory and intestate succession.
And so the matter stands. Until the issue is presented
squarely for judicial resolution, or the law is amended, the
question must remain unanswered.
Meanwhile, all of us ordinary mortals must remain groping
in the dark.
2) The term “legitimate child” or “legitimate children”
shall, in the proper cases, include legitimate descendants other
than children.
3) The term “legitimate parents” includes, in the proper
cases, legitimate ascendants other than parents.
Baritua vs. Court of Appeals
183 SCRA 565 (1990)
SARMIENTO, J.:
xxx xxx xxx

In the evening of November 7, 1979, the tricycle
then being driven by Bienvenido Nacario along the na-
tional highway at Barangay San Cayetano, in Baao,
Camarines Sur, figured in an accident with JB Bus
No. 80 driven by petitioner Edgar Bitancor and owned
and operated by petitioner Jose Baritua. As a result of
that accident Bienvenido and his passenger died, and
the tricycle was damaged. No criminal case arising
from the incident was ever instituted. Subsequently,
on March 27, 1980, as a consequence of the extra-
judicial settlement of the matter negotiated by the pe-
titioners and the bus' insurer-Philippine First Insur-

ance Company, Incorporated (PFICI for brevity)—
Bienvenido Nacario’s widow, Alicia Baracena Vda. de
Nacario, received P18,500.00. In consideration of the
amount she received, Alicia executed on March 27,
1980 a “Release of Claim” in favor of the petitioners
and PFICI, releasing and forever discharging them
from all actions, claims, and demands arising from
the accident which resulted in her husband’s death
and the damage to the tricycle which the deceased
was then driving. Alicia likewise executed an affidavit
of desistance in which she formally manifested her
lack of interest in instituting any case, either civil or
criminal, against the petitioners.
On September 2, 1981, or about one year and
ten months from the date of the accident on Novem-
ber 7, 1979, the private respondents, who are the
parents of Bienvenido Nacario, filed a complaint for
damages against the petitioners with the then Court
of First Instance of Camarines Sur. In their com-
plaint, the private respondents alleged that during the
vigil for their deceased son, the petitioners through
their representatives promised them (the private re-
spondents) that as extrajudicial settlement, they shall
be indemnified for the death of their son, for the fu-
neral expenses incurred by reason thereof, and for the
damage to the tricycle the purchase price of which
they (the private respondents) only loaned to the vic-
tim. The petitioners, however, reneged on their prom-
ise and instead negotiated and settled their obliga-
tions with the long-estranged wife of their late son.
xxx.
After trial, the court a quo dismissed the com-
plaint, holding that the payment by the defendants
(herein petitioners) to the widow and her child, who
are the preferred heirs and successors-in-interest of
the deceased Bienvenido to the exclusion of his par-
ents, the plaintiffs (herein private respondents), extin-
guished any claim against the defendants (petition-
ers).
The parents appealed to the Court of Appeals
which reversed the judgment of the trial court. The
appellate court ruled that the release executed by

Alicia Baracena Vda. de Nacario did not discharge the
liability of the petitioners because the case was insti-
tuted by the private respondents in their own capacity
and not as “heirs, representatives, successors, and
assigns” of Alicia; and Alicia could not have validly
waived the damages being prayed for (by the private
respondents) since she was not the one who suffered
these damages arising from the death of their son.
Furthermore, the appellate court said that the peti-
tioners “failed to rebut the testimony of the appellants
(private respondents) that they were the ones who
bought the tricycle that was damaged in the incident.
Appellant had the burden of proof of such fact, and
they did establish such fact in their testimony xxx.”
Anent the funeral expenses,” (T)he expenses for the
funeral were likewise shouldered by the appellants
(the private respondents). This was never contradicted
by the appellees (petitioners), xxx. Payment (for these)
were made by the appellants, therefore, the reim-
bursement must accrue in their favor.
xxx xxx xxx
The issue here is whether or not the respondent
appellate court erred in holding that the petitioners
are still liable to pay the private respondents the ag-
gregate amount of P20.505.00 despite the agreement
of extrajudicial settlement between the petitioners and
the victim’s compulsory heirs.
The petition is meritorious.
Obligations are extinguished by various modes
among them being by payment.
xxx xxx xxx
There is nodenying that the petitioners had paid
their obligation arising from the accident that oc-
curred on November 7, 1979. The only question now
is whether or not Alicia, the surviving spouse and the
one who received the petitioners’ payment, is entitled
to it.
Article 1240 of the Civil Code of the Philippines

enumerates the persons to whom payment to extin-
guish an obligation should be made.
xxx xxx xxx
Certainly there can be no question that Alicia
and her son with the deceased are the successors in
interest referred to in law as the persons authorized to
receive payment. The Civil Code states:
ARTICLE 887. The following are compul-
sory heirs:
1. Legitimate children and descendants,
with respect to their legitimate parents and as-
cendants:
2. In default of the foregoing, legitimate
parents and ascendants with respect to their le-
gitimate children and descendants;
3. The widow or widower;
xxx xxx xxx
(Emphasis ours.)
ARTICLE 985. In default of legitimate chil-
dren and descendants of the deceased, his par-
ents and ascendants shall inherit from him, to
the exclusion of collateral relatives. (Emphasis
ours).
It is patently clear that the parents of the de-
ceased succeed only when the latter dies without a le-
gitimate descendant. On the other hand, the surviving
spouse concurs with all classes of heirs. As it has
been established that Bienvenido was married to
Alicia and that they begot a child, the private respon-
dents are not successors-in-interest of Bienvenido;
they are not compulsory heirs. The petitioners there-
fore acted correctly in settling their obligation with
Alicia as the widow of Bienvenido and as the natural
guardian of their lone child. This is so even if Alicia
had been estranged from Bienvenido. Mere estrange-
ment is not a legal ground for the disqualification of a
surviving spouse as an heir of the deceased spouse.”
Articles governing the particular combinations:
ARTICLE 888. The legitime of legitimate children and

descendants consists of one-half of the hereditary estate of
the father and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the sur-
viving spouse as hereinafter provided. (808a)
I. Equal sharing—As already pointed out, the legitimate
children share the one-half in equal parts, regardless of age,
sex, or marriage of origin. The provision should have been ex-
plicit about this, rather than leaving it to implication and as-
sumption. The counterpart provision in intestacy is quite ex-
plicit on this. [Vide Article 979, par. 1 and Article 980).
I. A. Adopted children succeed the adopter in the
same manner as legitimate children by blood (Secs.
17 & 18, R.A. 8552).
II. Descendants other than children—The general rule is
that the nearer exclude the more remote. Hence, grandchildren
cannot inherit, since the children will bar them, unless all the
children renounce, in which case the grandchildren become the
nearest in degree. The rule goes on down the line; great-
grandchildren cannot inherit unless all the children and grand-
children renounce.
The only qualification to the rule that the nearer exclude

the more remote in the descending line is representation when
proper [Vide Articles 970-977 and comments thereunder).
There is no limit to the number of degrees in the descend-

ing line that may be called to succeed, whether in their own
right or by representation.
ARTICLE 889. The legitime of legitimate parents or

ascendants consists of one-half of the hereditary estates of
their children and descendants.
The children or descendants may freely dispose of the
other half, subject to the rights of illegitimate children and
of the surviving spouse as hereinafter provided. (809a)
ARTICLE 890. The legitime reserved for the legiti-

mate parents shall be divided between them equally; if one
of the parents should have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal and
maternal lines, the legitime shall be divided equally be-
tween both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in de-
gree of either line. (810)
I. Legitimate parents/ascendants as secondary compul-
sory heirs: The legitimate ascending line succeeds only in de-
fault of the legitimate descending line.
II. Three basic rules governing succession in the ascend-
ing line:
A. The nearer exclude the more remote. This rule in the
ascending line admits no qualification, since there is
no representation in the ascending line (Vide Article
972, par. 1).
B. Division by line. This rule will apply if there are
more than one ascendant in the nearest degree. The
legitime shall then be divided in equal parts between
the paternal line and the maternal line.
C. Equal division within the line. After the portion cor-
responding to the line has been assigned, there will
be equal apportionment between or among the re-
cipients within the line, should there be more than
one.
(The operation of the second and third rules may cause

inequality of shares among ascendants of identical degrees).
Example: Should X (the decedent) die without legitimate
descendants and be survived by three grandparents as his
nearest ascendants—A and B (paternal grandparents) and C
(maternal grandmother-the legitime of 1/2 will be divided
equally between the paternal and the maternal line (Rule B,

supra). Since there are two heirs in the paternal line, the pa-
ternal line portion will be shared equally by the two; and since
there is only one in the maternal line, she gets the entire allot-
ment for the maternal line.
Result: A and B get 1/8 each of the estate; C gets 1/4 of
the estate.
(Article 891—the reserva troncal—will be discussed after
Article 903.)
III. Right of Adopters—Vide Comments on p. 284.

ARTICLE 892. If only one legitimate child or descen-
dant of the deceased survives, the widow or widower shall
be entitled to one-fourth of the hereditary estate. In case of
a legal separation, the surviving spouse may inherit if it
was the deceased who had given cause for the same.
If there are two or more legitimate children or descen-
dants, the surviving spouse shall be entitled to a portion
equal to the legitime of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving spouse
shall be taken from the portion that can be freely disposed
of by the testator. (834a)
I. One legitimate child/surviving spouse.—The sharing is

1/2 for the legitimate child and 1/4 for the surviving spouse.
1. If there has been legal separation—
a) If there is a final decree of legal separation,
and the deceased is the offending spouse—the
surviving spouse gets his/her legitime (Article
63, par. 4, Family Code).
b) If there is a final decree of legal separation,
and the deceased is the innocent spouse—the
offending spouse is disqualified from inherit-
ing (Article 63, par. 4, Family Code).
c) If after the final decree of legal separation

there was a reconciliation between the
spouses, the reciprocal right to succeed is re-
stored (because reconciliation sets aside the
final decree) (Article 66, par. 2, Family Code).
2. Death pendente lite—If either spouse dies during
the pendency of the proceedings for legal sepa-
ration, the proceedings are terminated and the
surviving spouse inherits from the deceased
spouse (no matter which of the spouses died)
[Lapuz vs. Eufemio, 43 SCRA 177 (1972)].
3. Termination of marriage by reappearance of prior
spouse/Decree of annulment or absolute nullity
of marriage
a) Articles 41-43 of the Family Code govern a
subsequent marriage contracted by a party
whose spouse has been absent for the speci-
fied period and lay down the requisites there-
for. Under these articles, the reappearance of
the prior spouse terminates the second mar-
riage. One of the effects of the termination as
given in Article 43(5) is:
“(5) The spouse who contracted the sub-
sequent marriage in bad faith shall be disquali-
fied to inherit from the innocent spouse by tes-
tate and intestate succession.”
The clear implication of this article is that (1) if both con-

sorts in the second marriage were in good faith, they continue
to be heirs of each other, and (2) if only one of said consorts
acted in bad faith, the innocent one will continue to be an heir
of the other.
From this a problem may arise; To illustrate—A and B are
husband and wife. A disappears and after the required period B
complies with all the requirements of the Family Code on the
matter and then marries C. Both B and C are in good faith.
Subsequently, A reappears, causing the termination of the B-C
marriage. Under Article 43(5) the reciprocal right of succession
between B and C remains; on the other hand, A (the rightful

spouse) and B are also heirs of each other. B then dies.
Are A and C both entitled to a legitime from B? If so, how
much?
b) The same problem arises in cases of marriages
judicially annulled or declared void ab initio,
because of the provisions of Article 50, par. 1
of the same Code:
“Art. 50. The effects provided for by paragraphs
(2) , (3), (4) and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages which are
void ab initio or annulled by final judgment under Ar-
ticles 40 and 45.”
The problem here will arise should either or both partners
in the defective marriage remarry later.
c) Prescinding from the practical problem of hav-
ing two husbands (or two wives) claiming the
right to a legitime, the very principle underly-
ing the rule is questionable: why should con-
sorts of a terminated marriage, or an annulled
one, or one declared void ab initio continue to
be heirs of each other? The marriage—which
forms the basis of the right of succession
here—no longer exists.
II. Legitimate children/surviving spouse—The sharing is
1/2 for the children collectively and for the spouse a share
equivalent to that of “each of the legitimate children or descen-
dants.”
1. Determination of surviving spouse’s share:
a) As long as at least one of several children in-
herits in his own right, the determination of
the share of the surviving spouse presents
no problem. It will always be the equivalent
of one child’s share.
b) Supposing all the children predecease (or are
disinherited or unworthy to succeed), since
all the grandchildren would then inherit per

stirpes (by representation), and therefore in
different amounts, the practical solution will
still be to give the spouse the share that each
child would have gotten if qualified.
c) Supposing, however, all the children re-
nounce, the grandchildren would then inherit
per capita, and therefore equally. Should the
spouse’s share still be computed on the basis
of the children’s share had they accepted? If
so, when will the words “or descendants” in
the second paragraph of this article ever be
operative?
ARTICLE 893. If the testator leaves no legitimate de-
scendants, but leaves legitimate ascendants, the surviving
spouse shall have a right to one-fourth of the hereditary
estate.
This fourth shall be taken from the free portion of the
estate. (836a)
Legitimate ascendants/surviving spouse—The sharing is 1/2
for the ascendants collectively and 1 /4 for the surviving spouse.
For the parents or ascendants, the sharing will be in ac-
cordance with the rules laid down in Articles 889-890 (supra).
ARTICLE 894. If the testator leaves illegitimate chil-

dren, the surviving spouse shall be entitled to one-third of
the hereditary estate of the deceased and the illegitimate
children to another third. The remaining third shall be at
the free disposal of the testator, (n)
I. Illegitimate children/surviving spouse—The sharing is
1/3 for the illegitimate children or descendants collectively, and
1/3 for the surviving spouse.
II. Sharing among illegitimate children.
1. If the decedent died during the effectivity of the
Family Code—the sharing will be equal, inasmuch
as the Family Code has abolished the old distinc-
tion between natural and illegitimate other than

natural (spurious) (Vide Articles 163, 165, and
176, Family Code).
2. If the decedent died before the effectivity of the
Family Code, the old distinction must be ob-
served, and the legitime of a spurious child will
only be 4/5 that of a natural child, according to
the ratio established in Article 895, par. 2 [infraj.
This ratio of 5:4 among natural and spurious
children should be observed in all cases under the
Civil Code where they concur.
ARTICLE 895. The legitime of each of the acknowl-

edged natural children and each of the natural children by
legal fiction shall consist of one-half of the legitime of each
of the legitimate children or descendants.
The legitime of an illegitimate child who is neither an
acknowledged natural, nor a natural child by legal fiction,
shall be equal in every case to four-fifths of the legitime of
an acknowledged natural child.
The legitime of the illegitimate children shall be taken
from the portion of the estate at the free disposal of the
testator, provided that in no case shall the total legitime of
such illegitimate children exceed that free portion, and
that the legitime of the surviving spouse must first be fully
satisfied. (840a)
I. This Article has been pro tanto amended by Articles

163, 165 and 176 of the Family Code.
II. One legitimate child/illegitimate children/surviving
spouse—The sharing is 1/2 for the legitimate child, 1/4 for the
surviving spouse, and 1/4 for each illegitimate child. (These
sharings are based on Article 892 [supra] and Article 176 of the
Family Code.)
III. Legitimate children/illegitimate children/surviving
spouse—The sharing is 1/2 for the legitimate children collec-
tively, a share equal to that of one legitimate child for the sur-
viving spouse, and 1/2 the share of one legitimate child for
each illegitimate child.
IV. Sharing prior to Family Code—
1) If death occurred before the effectivity of the
Family Code, this article will govern; conse-
quently, should natural and spurious children
concur in the succession, each spurious child
will get 4/5 the share of one natural child, and
each natural child gets 1/2 the share of one le-
gitimate child.
2) Should there be no natural children but only
spurious children, each spurious child will get
2/5 the share of one legitimate child.
V. Reduction of shares—Depending on the number of le-

gitimate and illegitimate children, the possibility exists that the
total legitimes will exceed the entire estate. Reductions, there-
fore, will have to be made in accordance with the following
rules:
1) The legitimes of the legitimate children should
never be reduced; they are primary and preferred
compulsory heirs.
2) The legitime of the surviving spouse should
never be reduced; this article prohibits this.
3) The legitimes of the illegitimate children will be re-
duced pro rata and without preference among
them.
ARTICLE 896. Illegitimate children who may survive

with legitimate parents or ascendants of the deceased shall
be entitled to one-fourth of the hereditary estate to be
taken from the portion at the free disposal of the testator.
(841a)
Illegitimate children/legitimate parents—The sharing is

1/2 for the legitimate parents collectively and 1/4 for the ille-
gitimate children collectively.
1. For the parents or ascendants, the sharing will be

in accordance with the rules laid down in Articles
889-890 (supra).
2. For the illegitimate children or descendants, the
sharing shall depend on whether death occurred
before or during the effectivity of the Family Code
(Vide supra).
ARTICLE 897. When the widow or widower survives
with legitimate children or descendants, and acknowledged
natural children, or natural children by legal fiction, such
surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children which must be
taken from that part of the estate which the testator can
freely dispose of. (n)
ARTICLE 898. If the widow or widower survives with
legitimate children or descendants, and with illegitimate
children other than acknowledged natural, or natural chil-
dren by legal fiction, the share of the surviving spouse shall
be the same as that provided in the preceding article, (n)
These two articles are mere reiterations of the rules al-
ready laid down in Articles 892 and 895 and need not be ex-
plained again.
with legitimate parents or ascendants and with illegitimate
children, such surviving spouse shall be entitled to one-
eighth of the hereditary estate of the deceased which must
be taken from the free portion, and the illegitimate chil-
dren shall be entitled to one-fourth of the estate which
shall be taken also from the disposable portion. The testa-
tor may freely dispose of the remaining one-eighth of the
estate, (n)
Legitimate parents/illegitimate children/surviving spouse—The
sharing is 1/2 for the legitimate parents collectively, 1/4 for
the illegitimate children collectively, and 1/8 for the surviving
spouse.
1. For the legitimate parents or ascendants, the

sharing will be in accordance with the rules laid
down in Articles 889-890 (supra).
2. For the illegitimate children or descendants, the
sharing will depend on whether death occurred
before or during the effectivity of the Family Code
(Vide supra).
ARTICLE 900. If the only survivor is the widow or
widower, she or he shall be entitled to one-half of the he-
reditary estate of the deceased spouse, and the testator
may freely dispose of the other half. (837a)
If the marriage between the surviving spouse and the
testator was solemnized in articulo mortis, and the testa-
tor died within three months from the time of the mar-
riage, the legitime of the surviving spouse as the sole heir
shall be one-third of the hereditary estate, except when
they have been living as husband and wife for more than
five years. In the latter case, the legitime of the surviving
spouse shall be that specified in the preceding paragraph,
(n)
Surviving spouse as sole compulsory heir:
A. General rule—1/2 of the estate
B. Exception—1/3 of the estate, if the following cir-
cumstances are present:
1) The marriage was in articulo mortis;
2) The testator died within three months from the
time of the marriage;
3) The parties did not cohabit for more than five
years; and
4) The spouse who died was the party in articulo
mortis at the time of the marriage.
Note: The last requisite is not explicit in this article but

can be derived from the sense and intent of the provision. For
obvious reasons, the law does not regard such marriages with
eager approbation.
ARTICLE 901. When the testator dies leaving ille-
gitimate children and no other compulsory heirs, such ille-
gitimate children shall have a right to one-half of the he-
reditary estate of the deceased.
The other half shall be at the free disposal of the testa-
tor. (842a)
Illegitimate children alone—They get 1/2 of the estate col-
lectively.
The sharing among the illegitimate children or descen-
dants will depend on whether death occurred before or during
the effectivity of the Family Code (Vide supra).
ARTICLE 902. The rights of illegitimate children set

forth in the preceding articles are transmitted upon their
death to their descendants, whether legitimate or illegiti-
mate. (843a)
This article grants the right of representation to the legiti-
mate and illegitimate descendants of an illegitimate child.
1. Rule of Article 902 compared with rule of Article
992.—In the case of descendants of legitimate chil-
dren, the right of representation is given only to le-
gitimate descendants, by virtue of the provisions of
Art. 992 (infra].
The net effect of all this is that the right of representation

given to descendants of illegitimate children is broader than the
right of representation given to descendants of legitimate chil-
dren. Thus, an illegitimate child of a predeceased legitimate
child cannot inherit by representation (Article 992), while an
illegitimate child of an illegitimate child can (Article 902). A
classic instance of unintended consequence.
ARTICLE 903. The legitime of the parents who have
an illegitimate child, when such child leaves neither legiti-
mate descendants, nor a surviving spouse, nor illegitimate
children, is one-half of the hereditary estate of such ille-

gitimate child. If only legitimate or illegitimate children are
left, the parents are not entitled to any legitime whatso-
ever. If only the widow or widower survives with parents of
the illegitimate child, the legitime of the parents is one-
fourth of the hereditary estate of the child, and that of the
surviving spouse also one-fourth of the estate, (n)
I. Illegitimate parents alone—They get 1/2 of the estate.
Note that in the illegitimate ascending line, the right does
not go beyond the parents.
II. Illegitimate parents/surviving spouse—The sharing is
1 /4 for the parents collectively and 1 /4 for the spouse.
III. Illegitimate parents excluded by all kinds of chil-
dren—As secondary compulsory heirs, the illegitimate parents
are inferior to legitimate parents. Whereas legitimate parents
are excluded only by legitimate children, illegitimate parents
are excluded by all kinds of children, legitimate or illegitimate.
ARTICLE 891. The ascendant who inherits from his
descendant any property which the latter may have ac-
quired by gratuitous title from another ascendant, or a
brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of
relatives who are within the third degree and who belong to
the line from which the said property came. (871)*
THE RESERVA TRONCAL
I. Illustration and Diagram
R'ista
o. ofl.
P R’ios
’ There is an error in the article reference. The article from which this is
derived is 811 of the old Code.
P (Prepositus) inherits a piece of land from his father, O

(Origin). Subsequently, P dies, intestate, single and without
issue, and the land is in turn inherited by his mother R (Re-
servista).
R is now required to reserve the property in favor of P’s
paternal relatives within the third degree. (Reservatarios).
II. Origin and Brief History
The reserva troncal in its present form made its first ap-
pearance only in the Spanish Civil Code of 1889, though proto-
types existed in earlier general and foral law of Spain. The re-
serva troncal was found in Article 811 of the Spanish Code.
The Spanish Code contained two reservas: the viudal (also

called the ordinaria because it was the older reserva) and the
troncal (also called the extraordinaria because it was a more re-
cent addition). More, there was a reversion (the legal) in the
same Code. Add to that the reversion in adoption (the adoptiva)
found in Sec. 1 of Act 3977 and incorporated in the Rules of
Court of 1940, and we had in our law just prior to the present
Civil Code, two reservas and two reversiones:
1. reserva viudal (Article 968, Spanish Code)

2. reserva troncal (Article 811, Spanish Code)
3. reversion legal (Article 812, Spanish Code)
4. reversion adoptiva (Act 3977 and incorporated in
Rule 100, Section 5, Rules of Court of 1940).11
The draft Code submitted to Congress in 1948 had abol-

ished all these four but the legislature decided to retain the re-
serva troncal and inserted what is now the present article.
(Note: The reversion adoptiva was later revived by the Child
11 Actually, this institution has a protean history, appearing for the first
time as a reserva in Act 3977 (1932), expanding into a reserva-reversion in the
1940 Rules of Court, disappearing with the enactment of the new Civil Code,
and resurfacing as a reversion in PD 603 (1974) and disappearing again with
the enactment of the Family Code.
and Youth Welfare Code [PD 603] in 1974 and again abolished
by the Family Code of 1988.)
III. Other terms used to refer to the reserva troncal: lin-
eal, familiar, extraordmaria, semi-troncal. Sanchez Roman even
mentions the term pseudo-troncal (6-2 Estudios de Derecho
Civil [2nd ed., 1910], p. 974).
IV. Purpose
The Supreme Court has on more than one occasion

pointed out the purpose of the reserva troncal: In one case, it
stated that “ [t] he reserva troncal is a special rule designed pri-
marily to assure the return of the reservable property to the
third degree relatives belonging to the line from which the
property originally came, and to avoid its being dissipated . . .
by the relatives of the inheriting ascendant (reservista).” (Pa-
durav. Baldovino, GRNo. L-11960, 27 December 1958).
In a more recent case, the Supreme Court, citing Spanish
authorities, explains the purpose of the reserva troncal to be to
avoid “el peligro de que bienes posefdos secularmente por una
familia pasen bruscamente a titulo gratuito a manos extranas
por el azar de los enlaces y muertes prematuras.”26
In that same case, the same purpose is worded a little dif-
ferently: “impedir que, por un azar de la vida, personas ex-
tranas a una familia puedan adquirir bienes que sin aquel hu-
bieran quedado en ella.”27
[Gonzalez v. CFI, 104 SCRA 479 [1981]).
V. Requisites:
As given in Chua v. CFI, 78 SCRA 412 (1977).
“ 1. That the property was acquired by a descendant from

an ascendant or from a brother or sister by gratuitous title;
26 ... to avoid the danger that property existing for many years in a fam-
ily’s patrimony might pass gratuitously to outsiders through the accident of

marriage and untimely death.
27 ... to prevent outsiders from acquiring, through an accident of life,
property which, but for such accident, would have remained in the family.
2. That said descendant died without an issue;

3. That the property is inherited by another ascendant by
operation of law; and
4. That there are relatives within the third degree belonging
to the line from which said property came.”
Comments on requisites as given in Chua.
1. Re: #1—The term descendant should read person, be-

cause if the grantor is a brother or sister, the one acquiring
obviously is not a descendant
Acquisition is by gratuitous title (titulo lucrativo) when “the
recipient does not give anything in return.” (Cabardo v. Villa-
nueva, 144 Phil. 186 [1922]). It encompasses transmissions by
donation or by succession (of whatever kind).
2. Re: #2—should read: "that said person died without

legitimate issue, because only legitimate descendants will pre-
vent the property from being inherited by the legitimate ascend-
ing line by operation of law.
3. Re: #3—Transmission by operation of law is limited to

succession, either to the legitime or by intestacy, not testamen-
tary succession.
4. Re: #4—These relatives, called the reservatarios or re-
servees are discussed under the heading: Parties (infra).
(In slightly modified form, these requisites were reiterated

in Gonzalez v. CFI, 104 SCRA 479 [1981]).
VI. Process:
The property in reserva troncal undergoes a process of

three transmissions or transfers:
1. First transfer—by gratuitous title, from a person to
his descendant, brother or sister.
2. Second transfer—by operation of law, from the

transferee in the first transfer to another ascendant.
It is this second transfer that creates the reserva
3. Third transfer—from the transferee in the second
transfer to the relatives - reservatarios.
Solivio vs. Court of Appeals
182 SCRA 119 (1990)
MEDIALDEA, J.:
xxx xxx xxx

This case involves the estate of the late novelist,
Esteban Javellana, Jr., author of the first post-war
Filipino novel “Without Seeing the Dawn,” who died a
bachelor, without descendants, brothers, sisters,
nephews or nieces. His only surviving relatives are: (1)
his maternal aunt, petitioner Celedonia Solivio, the
spinster half-sister of his mother, Salustia Solivio:
and (2) the private respondent, Concordia Javellana-
Villanueva, sister of his deceased father, Esteban Jav-
ellana, Sr.
He was a posthumous child. His father died
barely ten (10) months after his marriage in Decem-
ber, 1916 to Salustia Solivio and four months before
Esteban, Jr. was bom.
Salustia and her sister, Celedonia (daughter of
Engracio Solivio and his second wife Josefa Fernan-
dez), a teacher in the Iloilo Provincial High School,
brought up Esteban, Jr.
Salustia brought to her marriage paraphernal
properties (various parcels of land in Calinog, Iloilo
covered by 24 titles) which she had inherited from her
mother, Gregoria Celo, Engracio Solivio’s first wife (p.
325, Record), but no conjugal property was acquired
during her short-lived marriage to Esteban, Sr.
On October 11, 1959, Salustia died, leaving all
her properties to her only child, Esteban, Jr., includ-
ing a house and lot in La Paz, Iloilo City, where she,
her son, and her sister lived. In due time, the titles of
all these properties were transferred in the name of

Esteban, Jr.
During his lifetime, Esteban, Jr. had, more than
once, expressed to his aunt Celedonia and some close
friends his plan to place his estate in a foundation to
honor his mother and to help poor but deserving stu-
dents obtain a college education. Unfortunately, he
died of heart attack on February 26, 1977 without
having set up the foundation.
Two weeks after his funeral, Concordia and
Celedonia talked about what to do with Esteban’s
properties. Celedonia told Concordia about Esteban’s
desire to place his estate in a foundation to be named
after his mother, from whom his properties came, for
the purpose of helping indigent students in their
schooling. Concordia agreed to cany out the plan of
the deceased.
xxx xxx xxx
Pursuant to their agreement that Celedonia
would take care of the proceedings leading to the for-
mation of the foundation, Celedonia in good faith and
upon the advice of her counsel, filed on March 8,
1977 Spl. Proceeding No. 2540 for her appointment
as special administratrix of the estate of Esteban Jav-
ellana, Jr. (Exh. 2). Later, she filed an amended peti-
tion (Exh. 5) praying that letters of administration be
issued to her; that she be declared sole heir of the de-
ceased; and that after payment of all claims and ren-
dition of inventory and accounting, the estate be ad-
judicated to her.
After due publication and hearing of her peti-
tion, as well as her amended petition, she was de-
clared sole heir of the estate of Esteban Javellana, Jr.
She explained that this was done for three reasons:
(1) because the properties of the estate had come from
her sister, Salustia Solivio; (2) that she is the dece-
dent’s nearest relative on his mother’s side; and (3)
with her as sole heir, the disposition of the properties
of the estate to fund the foundation would be facili-
tated.
On April 3, 1978, the court (Branch II, CFI, now

Branch 23, RTC) declared her the sole heir of
Esteban, Jr. Thereafter, she sold properties of the es-
tate to pay the taxes and other obligations of the de-
ceased and proceeded to set up the “SALUSTIA
SOLIVIO VDA. DE JAVELLANA FOUNDATION” which
she caused to be registered in the Securities and Ex-
change Commission on July 17, 1981 under Reg. No.
0100027.
Four months later, or on August 7, 1978, Con-
cordia Javellana-Villanueva filed a motion for recon-
sideration of the court’s order declaring Celedonia as
“sole heir” of Esteban, Jr., because she too was an
heir of the deceased. On October 27, 1978, her mo-
tion was denied by the court for tardiness. Instead of
appealing the denial, Concordia filed on January 7,
1980 (or one year and two months later), Civil Case
No. 13207 in the Regional Trial Court of Iloilo, Branch
26, entitled “Concordia Javellana-Villanueva v. Cele-
donia Solivio” for partition, recovery of possession,
ownership and damages.
On September 3, 1984, the said trial court ren-
dered judgment in Civil Case No. 13207, in favor of
Concordia Javellana-Villanueva.
On Concordia’s motion, the trial court ordered
the execution of its judgment pending appeal and re-
quired Celedonia to submit an inventory and account-
ing of the estate. In her motions for reconsideration of
those orders, Celedonia averred that the properties of
the deceased had already been transferred to, and
were in the possession of, the “Salustia Solivio Vda.
de Javellana Foundation.” The trial court denied her
motions for reconsideration.
In the meantime, Celedonia perfected an appeal
to the Court of Appeals (CA-GR CV No. 09010). On
January 26, 1988, the Court of Appeals, Eleventh Di-
vision, rendered judgment affirming the decision of
the trial court in toto. Hence, this petition for review
wherein she raised the following legal issues:
xxx xxx xxx

3. Whether the decedent’s properties were sub-

ject to reserva troncal in favor of Celedonia, his rela-
tive within the third degree on his mother’s side from
whom he had inherited them.
xxx xxx xxx
III. On the question of reserva troncal—
We And no merit in the petitioner’s argument

that the estate of the deceased was subject to reserva
troncal and that it pertains to her as his only relative
within the third degree of his mother’s side.
xxx xxx xxx
The persons involved in reserva troncal are:
“1. The person obliged to reserve is the reser-

vor (reservista)—the ascendant who inherits by opera-
tion of law property from his descendants.
“2. The persons for whom the property is re-
served are the reservees (reservatarios)—relatives
within the third degree counted from the descendant
(propositus), and belonging to the line from which the
property came.
“3. The propositus—the descendant who re-
ceived by gratuitous title and died without issue,
making his other ascendant inherit by operation of
law.” (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.)
Clearly, the property of the deceased, Esteban
Javellana, Jr., is not reservable property, for Esteban,
Jr. was not an ascendant, but the descendant of his
mother, Salustia Solivio, from whom he inherited the
properties in question. Therefore, he did not hold his
inheritance subject to a reservation in favor of his
aunt, Celedonia Solivio, who is his relative within the
third degree on his mother’s side. The reserva troncal
applies to properties inherited by an ascendant from a
descendant who inherited it from another ascendant
or a brother or sister. It does not apply to property in-
herited by a descendant from his ascendant, the re-
verse of the situation covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died

without descendants, ascendants, illegitimate chil-
dren, surviving spouse, brothers, sisters, nephews or
nieces, what should apply in the distribution of his
estate are Articles 1003 and 1009 of the Civil Code.
VII. Parties
There are four parties:

A. Origin or Mediate Source—the transferor in the first
transfer;
B. Prepositus—the first transferee, who is a descendant
or brother/sister of the Origin;
C. Reservista (Reservor)—the ascendant obliged to re-
serve; and
D. Res
ervatarios (Reservees)—the relatives benefited.
Tlvo Basic Rules:
1. No inquiry is to be made beyond the Ori-

gin/Mediate Source. It does not matter who the
owner of the property was before it was acquired
by the Origin. (6 Manresa, op. cit., p. 273J.
2. All the relationships among the parties must be
legitimate. “. . . [t]he provisions of Art. [891] of the
Civil Code apply only to legitimate relatives.”
[Nievav. Alcala, 41 Phil. 915 [1920]).
The Origin/Mediate Source:
1. He is either an ascendant or a brother or sister of

the Prepositus.
Ascendant—may be of any degree of ascent
Brother/Sister—There is a divergence of opinion on this
term:
(a) One school of thought—If the Origin is a
brother/sister, the relationship must be of the half-blood,
because “otherwise the property would not change lines in
passing to a common ascendant of the prepositus and the

brother.” (3 Reyes & Puno, Outline of Philippine Civil Law,
p. 81J. There should, in other words, be no reserva (ac-
cording to this theoiy) if the fraternal relationship is of the
full-blood for then it would not be possible to identify the
line of origin—whether paternal or maternal.
(b) Another school of thought—It does not matter
whether the fraternal relationship is of the full- or the
half-blood. In either case a reserva may arise. Since the
law makes no distinction, we should not make one.
The Prepositus:
1. He is either a descendant or a brother/sister of

the Origin (Vide discussion supra), who receives
the property from the Origin by gratuitous title.
Thus, in the scheme of the reserva troncal, he is
the first transferee of the property.
While the property is still with the Prepositus there is as

yet no reserva The reserva arises only upon the second trans-
fer (supra). Consequently, while the property is owned by the
prepositus, he has all the rights of ownership over it and may
exercise such rights in order to prevent a reserva from arising.
He can do this in any of these ways:
a) By substituting or alienating the property;

b) By bequeathing or devising it either to the po-
tential reservista or to third persons (subject
to the constraints of the legitime); or
c) By partitioning in such a way as to assign the

property to parties other than the potential
reservista (again subject to the constraints of
the legitime).
It is in this sense that Sanchez Roman calls the Prepositus

the arbiter of the reserva troncal: “el arbitro de que aquellos bi-
enes sean o no reservables.” (6 Sanchez Roman, op. cit., p.
1028).
The Reservista:
1. He is an ascendant of the Prepositus, of whatever

degree. The Reservista must be an ascendant
other than the Origin/Mediate Source (if the latter
is also an ascendant). The law is clear on this: it
refers to the Origin/Mediate Source as another
ascendant. If these two parties are the same per-
son, there would be no reserva troncal.
2. Should the Origin/Mediate Source and the Re-
servista belong to different lines?
Query illustrated: A receives by donation a parcel of land
from his paternal grandfather X. Upon A’s death, the parcel
passes by intestacy to his father Y (X’s son). The property never
left the line. Is Y obliged to reserve?
One view: No, because “another ascendant is one belong-
ing to a line other than that of the reservista” (3 Reyes & Puno,
op. cit., p. 56).
Another view: Yes, because: (1) the law makes no distinc-
tion, and (2) the purpose of the reserva is not only curative, but
also preventive; i.e. to prevent the property from leaving the
line (6 Sanchez Roman, op. cit., p. 991).
The Supreme Court, in one case, seems to have taken
Sanchez Roman’s view. (Carrillo vs. De la Paz, 18 SCRA 467
[1966]. In that case, property was passed by succession from
mother to son and then in turn by succession from son to ma-
ternal grandmother, causing a reserva (according to the Court)
to arise. The Carrillo statement, however, may not be determi-
native of this controversy inasmuch as the question of reserva
troncal was not the lis mota in that case.
The Reservatarios:
1. The reserva is in favor of a class, collectively re-

ferred to as the reservatarios (reservees).
2. Requirements to be a reservatario:
The article lays down two:

a) He must be within the third degree (of con-
sanguinity). From whom?—from the Prepositus
(Cabardo v. Villanueva, 44 Phil. 186 [1922]).
b) He must belong to the line from which the prop-
erty came. This is determined by the Ori-
gin/Mediate Source. If an ascendant, the Medi-
ate Source is either of the paternal or maternal
line. If a half-brother or -sister, the same is true.
If, however, it is a brother or sister of the full
blood, it would not be possible to distinguish the
lines. To those who hold the opinion that a re-
serva would exist in such a case, Manresa’s
comment should be the norm: “. . . the question
of line would be indifferent.” (6 Manresa, op. cit.,
p. 280).
c) Must the reservatario also be related to the Me-
diate Source?
One view: No. Manresa: “. . . the article . . .
speaks solely of two lines, the paternal and the mater-
nal of the descendant, without regard to subdivisions.”
(6 Manresa, op. cit, p. 279)
Another view: Yes. Sanchez Roman: “Otherwise,
results would arise completely contrary to the purpose
of this reserva . . . which is to prevent property from
passing to persons not of the line of origin.” (6 Sanchez
Roman, op. cit., pp. 999-1000).
3. Reserva in favor of reservatarios as a class: To be
qualified as a reservatario, is it necessary that one
must already be living when the Prepositus dies?
The better opinion seems to be that this is not re-
quired, because as Manresa points out: ‘The re-
serva is established in favor of a group or class: the
relatives within the third degree—not in favor of
specific individuals . . . ” (6 Manresa, op. cit., p.
296).
As long, therefore, as the reservatario is alive at the time

of the reseruista’s death, he qualifies as such, even if he was
conceived and bom after the Prepositus’ death.
4. Preference among the reservatarios:
Scaevola had expressed the view that all reservatarios are
beneficiaries in equal shares, regardless of differences in degree
of relationship with the Prepositus (provided of course, that
they are all within the third degree, as provided by law).
Scaevola’s view, however, was rejected by our Supreme Court
in a thorough discussion:
Padura vs. Baldovino
GR No. 11960, December 27, 1958
REYES, J.B.L., J.:
xxx xxx xxx

The facts are simple and undisputed, Agustin
Padura contracted two marriages during his lifetime.
With his first wife, Gervacia Landig, he had one child
whom they named Manuel Padura, and with his sec-
ond, Benita Garing, he had two children named For-
tunato Padura and Candelaria Padura.
Agustin Padura died on April 26, 1908, leaving a
last will and testament, duly probated in Special Pro-
ceedings No. 664 of the Court of First Instance of La-
guna, wherein he bequeathed his properties among
his children, Manuel, Candelaria and Fortunato, and
his surviving spouse, Benita Garing. Under the pro-
bate proceedings, Fortunato was adjudicated four
parcels of land covered under Decree No. 25960 is-
sued in Land Registration Case No. 86 G.L.R.O. No.
10818, object of this appeal.
Fortunato Padura died unmarried on May 28,
1908, without having executed a will; and not having
any issue, the said parcels of land were inherited ex-
clusively by his mother, Benita Garing. She applied
for and later was issued a Torrens Certificate of Title
in her name, but subject to the condition that the
properties were reservable in favor of relatives within
tile third degree belonging to the line from which said

property came, In accordance with the applicable pro-
vision of law, under a decree of the court dated Au-
gust 25, 1916, in Land Registration Case No. G.L.R.O.
No. 10818.
On August 26, 1934, Candelaria Padura died
leaving as her only heirs, her four legitimate children,
the appellants herein, Cristeta, Melania, Anicia and
Pablo, all surnamed Baldovino.
Six years later, on October 6, 1940, Manuel Pa-
dura also died. Surviving him are his legitimate chil-
dren, Dionesia, elisa, Flora, Comelio, Francisco,
Juana, and Severino, all sumamed Padura, the ap-
pellees herein.
Upon the death of Benita Garing (the reservista),
on October 15, 1952 appellants and appellees took
possession of the reservable properties. In a resolu-
tion, dated August 1, 1953, of the Court of First In-
stance of Laguna in Special Proceedings No. 4551, the
legitimate children of the deceased Manuel Padura
and Candelaria Baldovino were declared to be the
rightful reservees and such, entitled to the reservable
properties (the original reservees, Candelaria Padura
and Manuel Padura, having predeceased the reserv-
istaj. The instant petition, dated October 22, 1956,
filed by appellants Baldovino seeks to have these
properties partitioned, such that one-half of the same
be adjudicated to them, and the other half to the ap-
pellees, allegedly on the basis that they inherited by
right of representation from their respective parents,
the original reservees. To this petition, appellees filed
their opposition, maintaining that they should all (the
eleven reservees) be deemed as inheriting in their own
right, under which, they claim, each should have an
equal share.
Based on the foregoing findings of facts, the
lower court rendered judgment declaring all the re-
servees (without distinction) “co-owners, pro-indiviso,
in equal shares of the parcels of land” subject matter
of the suit.
The issue in this appeal may be formulated as

follows: In a case of reserva troncal where the only re-
servatarios (reservees) surviving the reservista and be-
longing to the line of origin, are nephews of the de-
scendants (prepositus) but some are nephews of the
half blood and the others are nephews of the whole
blood, should the reserved properties be apportioned
among them equally or should the nephews of the
whole blood take a share twice as large as that of the
nephews of the half blood?
The appellants contend that notwithstanding the
reservable character of the property under Art. 891 of
the new Civil Code (Art. 811 of the Code of 1889) the
reservatarios nephews of the whole blood are entitled to
a share twice as large that of the others, in conformity
with Arts. 1006, 1008 of the Civil Code of 1889) on in-
testate succession.
xxx xxx xxx
The case is one of first impression and had di-
vided the Spanish commentators on the subject. After
mature reflection, we have concluded that the position
of the appellants is correct. The reserva troncal is a
special rule designed primarily to assure the return of
the reservable property to the third degree relatives
belonging to the line from which the property origi-
nally came, and avoid its being dissipated into and by
the relatives of the inheriting ascendant (reservista).
xxx xxx xxx
It is well known that the reserva troncal had no
direct precedent in the law of Castile. The President of
the Spanish Code Commission, D. Manuel Alonso
Martinez, explained the motives for the formulation of
the reserva troncal in the Civil Code of 1889 in his “El
Codigo Civil en sus relaciones con las Legislaciones
Forales” (Madrid, 1884, Vol. 1, pp. 226-228, 233-235)
in the following words:
“La base cuarta, a mas de estar en pugna
con la legislacion espanola, es una desviacion
del antiguo derecho romano y del modemo dere-
cho europeo perfectamente conformes ambos
con el tradicional sistema de Castilla. En que se

fundo, pues, la Comision para semejante nove-
dad? Que razones pudieron moverla a esta-
blecaer la sucesion lineal, separandose del cauce
secular?
“La dire en breves frases. Hay un caso, no
del todo raro que subleva el sentimento de cuan-
tos lo imaginan o lo ven: el hijo mayor de un
magnate sucede a su padre en la mitad integra
de pingues mayorazgos, tocando a sus her-
manos un lote modestisimo en la division de la
herencia patema; aquel hijo se casa y fallece al
poco tiempo dejando un tiemo vastago; la viuda,
todavia joven, contrae segundas bodas y tiene la
desdicha de perder al hijo del primer matrimonio
heredando toda su fortuna con exclusion de la
madre y los hermanos de su primer marido. No
hay para que decir que si hay descendientes del
segundo matrimonio, a ellos se trasmite en su
dia la herencia. Por donde resulta el irritante es-
pectaculo de que los vastagos directos del mag-
nate viven en la estrechez y tal vez en la miseria,
mientras gozan de su rico patrimonlo personas
extranas a su familia y que, por un orden natu-
ral la son profundamente antipaticas. Esta hi-
potesis se puede realizar y se realiza, aunque
por lo general en menor escala, entre
propietarios, banqueros e industriales, labra-
dores y comerciantes, sin necesidad de vincula-
ciones ni titulos nobilarios.
“Pues bien, la mayoria de la Comision se
preocupo vivamente de esto, considerando el
principio de familia como superior al del afecto
presumible del difunto. A esta impresion obe-
decia la propuesta de Sr. Garcia Goyena, para
que a los ascendientes se les diera su legitima
tan solo en usufructo: en identica razon se
apoyaba el Sr. Franco para pedir con insistencia
se declarase que, si un ascendiente tenia hecha
una donacion a su descendiente, bien fuese al
contraer matrimonio o bien con cualquiera otro
motivo, y muriese el donatario sin sucesion,
volvieran los bienos donados al donante, sin

perjuiclo de la legitima que pudlera correspon-
derle en su calidad de ascendiente. La comision
no se atrevio a ir tan alia como estos dos Sres.
Vocales; pero, para eludir las consecuencias que
a las veces produce el principio de la proximidad
del parentesco y que he puesto de relieve poco
ha, proclamo, no sin vacilar, la doctrina de la
sucesion lineal.” (pp. 226-227)
“Y este fue el temperamento que, por indi-
cacion mia, adopto la Comision Codificadora,
nombrando una Subcomision que redactara las
bases a que habia de sujetar se esta especie de
reversion de los bienes inmuebles al tronco de
donde procedan, lo mismo en la sucesion testa-
mentaria que en la intestada, sin perjuicio del
derecho sacratisimo de los padres al disfrute de
la herencia de sus hijos malogrados prema-
turamente.
“Dicha Subcomision, compuesta de los
Sres. Duran y Bas y Franco como defensores del
regimen foral; y de la legislacion castellana,
sometieron a la deliberacion de la Comision
Codificadora la proposicion siguiente:
‘El ascendiente que heredare de su de-
scendiente bienes que este hubiese adquirido
por tttulo lucrattvo de otro ascendiente o de un
hermano, se halla obligado a reservar los que
hubiese adquirido por ministerio de lajey en fa-
vor de los parientes del difunto que se hallaran
comprendidos dentro del tercer grado y que lo
sean por la parte de donde proceden los bienes.’
“No voy a discutir ahora si esta formula es
mas o menos feliz, y si debe aprobarse tal cual
esta redactada o si ha menester de enmienda o
adicion. Aplazo este examen para cuando trate
de la sucesion intestada, a la cual tiene mayor
aplicacion. Por el momento me llmito a re-
conocer, primero, que con esta base desaparece
el peligro de que bienes poseidos secularmente
por una familia pasen bruscamente y a titulo
gratuito a manos extranas por el azar de los

enlaces y de muertes prematuras; segunda; que
sin negar que sea una novedad esta base del de-
recho de Castilla, tiene en rigor en su abono la
autoridad de los Codlgos mas niveladores y el
ejemplo de las naclones mas democraticas de
Europa, si no en la extension en que lo presenta
la Comision Codificadora, a lo menos en el prin-
cipio generador de la reforma.” (pp. 233-235)
The stated purpose of the reserva is accom-
plished once the property has devolved to the speci-
fied relatives of the line of origin. But from this time
on, there is no further occasion for its application. In
the relations between one reservatario and another of
the same degree, there is no call for applying Art. 891
any longer; wherefore, the respective share of each in
the reversionary property should be governed by the
ordinary rules of intestate succession. In this spirit
the jurisprudence of this Court and that of Spain has
resolved that upon the death of the ascendant reseru-
ista, the reservable property should pass, not to all
the reservatorios as a class, but only to those nearest
in degree to the descendant (prepositus), excluding
those reservatarios of more remote degree. (Florentino
vs. Florentino, 40 Phil. 480; T.S. 8 Nov. 1894; Dir.
Gen. de los Registros, Resol 20 March 1905). (And
within the third degree of relationship from the de-
scendant [prepositus], the right of representation op-
erates in favor of nephews [Florentino vs. Florentino,
supra]).
xxx xxx xxx
Proximity of degree and right of representation
are basic principles of ordinary intestate succession;
so is the rule that whole blood brothers and nephews
are entitled to a share double that of brothers and
nephews of half blood. If in determining the rights of
the reservatarios inter se, proximity of degree and the
right of representation of nephews are made to apply,
the rule of double share for immediate collaterals, of
the whole blood should be likewise operative.
In other words, the reserva troncal merely de-

termines the group of relatives (reservatarios) to whom
the property should be returned; but within that group
the individual right to the property should be decided
by the applicable rules of ordinary intestate succes-
sion, since Art. 891 does not specify otherwise. This
conclusion is strengthened by the circumstance that
the reserva being an exceptional case, its application
should be limited to what is strictly needed to accom-
plish the purpose of the law. As expressed by Man-
resa in his Commentaries (Vol. 6, 6th Ed., p. 250):
“creandose un verdadero estado excep-
cional del derecho, no debe ampliarse, sino mas
bien restringirse, el alcance del precepto, man-
teniendo la excepcion mientras fuere necesaria y
estuviese realmente contenida en la disposicion,
y aplicando las reglas generales y fundamentales
del Codigo en materia de sucesion, en aquellos
extremos no resueltos de un modo expreso, y
que quedan fuera de la propia esfera de accion
de la reserva que se crea.”
The restrictive interpretation is the more impera-
tive in view of the new Civil Code’s hostility to succes-
sional reservas and reversions, as exemplified by the
suppression of the reserva viudal and the reversion
legal of the Code of 1889 (Arts. 812 and 968-980).
There is a third point that deserves considera-
tion. Even during the reservista’s lifetime, the reserva-
tarios, who are the ultimate acquirers of the property,
can already assert the right to prevent the reservista
from doing anything that might frustrate their rever-
sionary right; and for this purpose they can compel
the annotation of their right in the Registry of Prop-
erty even while the reservista is alive. (Ley Hipotecaria
de Ultamar, Arts. 168, 199; Edroso vs. Sablan, 25
Phil. 295). This right is incompatible with the mere
expectancy that corresponds to the natural heirs of
the reservista. It is likewise clear that the reservable
property is no part of the estate of the reservista, who
may not dispose of them by will, so long as there are
reservatarios existing (Arroyo vs. Gerona, 58 Phil.
237). The latter, therefore, do not inherit from the re-

servista, but from the descendant prepositus, of whom
the reservatarios are the heirs mortis causa, subject of
the condition that they must survive the reservista.
(Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa,
Commentaries, Vol. 6, 6th ed., pp. 274, 310) Had the
nephews of whole and half-blood succeeded the pre-
positus directly, those of full-blood would undoubtedly
receive a double share compared to those of the half
blood (Arts. 1008 and 1006, jam cit.), why then
should the latter receive equal shares simply because
the transmission of the property was delayed by the
interregnum of the reserva? The decedent (causante)
the heirs and their relationship being the same, there
is no cogent reason why the hereditary portions
should vary.
It should be stated, in justice to the trial court,
that its opinion is supported by distinguished com-
mentators of the Civil Code of 1889, among them
Sanchez Roman (Estudios, Vol. 6, Tomo 2, p. 1008)
and Mucius Scaevola (Codigo Civil, Vol. 14, p. 342).
The reason given by these authors is that the reserva-
tarios are called by law to take the reservable property
because they belong to the line of origin; and not be-
cause of their relationship. But the argument, If logi-
cally pursued, would lead to the conclusion that the
property should pass to any and all the reservatarios,
as a class and in equal shares, regardless of lines and
degrees. In truth, such is the thesis of Scaevola that
later became known as the theory of reserva integral
(14 Scaevola, Cod. Civ., p. 332 et seq.). But as we
have seen, the Supreme Courts of Spain and of the
Philippines have rejected that view, and consider that
the reservable property should be succeeded to by the
reservatario who is nearest in degree, according to the
basic rules of intestacy. The refutation of the trial
court’s position is found in the following passage by
Manresa’s Commentaries (Vol. 6, 7th Ed., p. 346):
“A esto se objeta que el derecho consignado
en el articulo 811 es un derecho propio que nace
de la mera calidad de pariente; no un derecho
que se adquiere por sucesion. Ciertamente, el
derecho se concede a los parientes llneales den-

tro del tercer grado; pero se los concede con mo-
tivo de la muerte de un descendiente y en la
sucesion de este. Elios suceden por la proceden-
cia especial de los bienes despues de ser estos
disfrutados por el ascendiente; pero suceden a
titulo lucrativo y por causa de muerte y ministe-
rio de la ley, lo cual es diflcil poderlo negar.
Hasta podrian estimarse esos parientes legiti-
marios o herederos forzosos, como el mismo
autor reconoce en otro lugar de su obra. De
modo que este argumento no es convincente.”
All told, our considered opinion is that reason

and policy favor keeping to a minimum the alterations
introduced by the reserva in the basic rules of suc-
cession mortis causa.
Thus, conformably to the Padura ruling, which subjects

the choice of reservatarios to the rules of intestate succession,
those reservatarios nearer In degree of relationship to the Pre-
positus will exclude those more remotely related.
The Padura ruling was reiterated as one of the obiters in
Gonzales v. CFI, 104 SCRA 479 (1981).
5. Representation among the reservatarios:
As in intestate succession, the rule of preference of degree

among reservatarios is qualified by the rule of representation.
Florentino vs. Florentino
40 Phil. 480 (1919)
TORRES, J.:
xxx xxx xxx

In order to decide whether the plaintiffs are or
are not entitled to invoke, in their favor, the provi-
sions of Article 811 of the Civil Code, and whether the
same article is applicable to the question of law pre-
sented In this suit, it is necessary to determine
whether the property enumerated in paragraph 5 of
the complaint Is of the nature of reservable property;

and, if so, whether in accordance with the provision of
the Civil Code in Article 811, Severina Faz de Leon
(the widow of the deceased Apolonio Isabelo Floren-
tino) who inherited said property from her son Apolo-
nio Florentino III (bom after the death of his father
Apolonio Isabelo) had the obligation to preserve and
reserve same for the relatives, within the third degree,
or her aforementioned deceased son Apolonio III.
xxx xxx xxx
During the marriage of Apolonio Isabelo Floren-
tino II and Severina Faz de Leon two children were
bom, namely the defendant Mercedes Florentino and
Apolonio Florentino III (bom after the death of his fa-
ther). At the death of Apolonio Isabelo Florentino un-
der a will, his eleven children [Note: Apolonio Isabelo
had nine children by his first marriage and two by his
second marriage.] succeeded to the inheritance he
left, one of whom, the posthumos (sic) son Apolonio
III, was given, as his share, the aforementioned prop-
erty enumerated in the complaint. In 1891 the said
posthumos (sic) son Apolonio Florentino III died and
was succeeded by his legitimate mother Severina Faz
de Leon, who inherited the property he left and who
on dying, November 18, 1908, instituted by will as her
sole heiress her surviving daughter, Mercedes Floren-
tino, the defendant herein, who took possession of all
property left by her father, same constituting the in-
heritance. Included in said inheritance is the prop-
erty, specified in paragraph 5 of the complaint, which
had been inherited by the posthumos (sic) son Apolo-
nio Florentino III from his father Apolonio Isabelo
Florentino, and which, at the death of the said post-
humos (sic) son, had in turn been inherited by his
mother, Severina Faz de Leon. Even if Severina left in
her will said property, together with her own, to her
only daughter and forced heiress, Mercedes Floren-
tino, nevertheless this property had not lost its re-
servable nature inasmuch as it originated from the
common ancestor of the litigants, Apolonio Isabelo;
was inherited by his son Apolonio III; was transmitted
by same (by operation of law) to his legitimate mother

and ascendant, Severina Faz de Leon.
The posthumos (sic) son, Apolonio Florentino III,
acquired the property, now claimed by his brothers,
by a lucrative title or by inheritance from his afore-
mentioned legitimate father, Apolonio Isabelo Floren-
tino II. Although said property was inherited by his
mother, Severina Faz de Leon, nevertheless, she was
in duty bound, according to Article 811 of the Civil
Code, to reserve the property thus acquired for the
benefit of the relatives, within the third degree of the
line from which such property came.
According to the provisions of law, ascendants
do not inherit the reservable property, but its enjoy-
ment, use or trust, merely for the reason that said law
imposes the obligation to reserve and preserve same
for certain designated persons who, on the death of
the said ascendants-reservists, (taking into considera-
tion the nature of the line from which such property
came) acquire the ownership of said property in fact
and by operation of law in the same manner as forced
heirs (because they are also such)—said property re-
verts to said line as long as the aforementioned per-
sons who, from the death of the ascendant-reservists,
acquire in fact the right of reservatarios (persons for
whom property is reserved), and are relatives, within
the third degree, of the descendant from whom the re-
servable property came.
Any descendant who inherits from his descen-
dant any properly, while there are living, within the
third degree, relatives of the latter, is nothing but a
life usufructuary or a fiduciary of the reservable prop-
erty received. He is, however, the legitimate owner of
his own property which is not reservable property and
which constitutes his legitime, according to Article
809 of the Civil Code. But if, afterwards, all of the
relatives, within the third degree, of the descendant
(from whom came the reservable property) die or dis-
appear, the said property becomes free property, by
operation of law, and is thereby converted into the le-
gitime of the ascendant heir who can transmit it at
his death to his legitimate successors or testamentary
heirs. This property has now lost its nature of reserv-

able property, pertaining thereto at the death of the
relatives, called reservatarios, who belonged within
the third degree to the line from which such property
came.
Following the order prescribed by law in legiti-
mate succession, when there are relatives of the de-
scendant within the third degree, the right of the
nearest relative, called reservatario, over the property
which the reservista (person holding it subject to res-
ervation) should return to him, excludes that of the
one more remote. The right of representation cannot
be alleged when the one claiming same as a reserva-
tario of the reservable property is not among the rela-
tives within the third degree belonging to the line from
which such property came, inasmuch as the right
granted by the Civil Code in Article 811 is in the high-
est degree personal and for the exclusive benefit of
designated persons who are the relatives, within the
third degree, of the person from whom the reservable
property came. Therefore, relatives of the fourth and
the succeeding degrees can never be considered as
reservatarios, since the law does not recognize them
as such.
In spite of what has been said relative to the
right of representation on the part of one alleging his
right as reservatario, who is not within the third de-
gree of relationship, nevertheless there is right of rep-
resentation on the part of reservatarios who are within
the third degree mentioned by law, as in the case of
nephews of the deceased person from whom the re-
servable property came. These reservatarios have the
right to represent their ascendants (fathers and moth-
ers) who are the brothers of the said deceased person
and relatives within the third degree in accordance
with Article 811 of the Civil Code.
In this case it is conceded without denial by de-
fendants, that the plaintiffs Encamacion, Gabriel and
Magdalena, are the legitimate children of the first
marriage of the deceased Apolonio Isabelo Florentino
II; that Ramon, Miguel, Ceferino, Antonio, and
Rosario are both grandchildren of Apolonio Isabelo
Florentino II, and children of his deceased son, Jose

Florentino; that the same have the right to represent
their aforementioned father, Jose Florentino; that
Emilia, Jesus, Lourdes, Caridad, and Dolores are the
legitimate children of the deceased Espirita Floren-
tino, one of the daughters of the deceased Apolonio
Isabelo Florentino II, and represent the right of their
aforementioned mother; and that the other plaintiffs,
Jose and Asuncion, have also the right to represent
their legitimate father Pedro Florentino, one of the
sons of the aforementioned Apolonio Isabelo Floren-
tino II. It is a fact, admitted by both parties, that the
other children of the first marriage of the deceased
Apolonio Isabelo Florentino II died without issue so
that this decision does not deal with them.
There are then seven “reservatarios" who are en-
titled to the reservable property left at the death of
Apolonio III; the posthumos (sic) son of the aforemen-
tioned Apolonio Isabelo II, to wit, his three children of
his first marriage—Encarnacion, Gabriel, Magdalena;
his three children, Jose, Espirita and Pedro who are
represented by their own twelve children respectively;
and Mercedes Florentino, his daughter by a second
marriage. All of the plaintiffs are the relatives of the
deceased posthumos (sic) son, Apolonio Florentino III,
within the third degree (four of whom being his half
brothers and the remaining twelve being his nephews
as they are the children of his three half-brothers). As
the first four are his relatives within the third degree
in their own right and the other twelve are such by
representation, all of them are indisputably entitled
as reservatarios to the property which came from the
common ancestor, Apolonio Isabelo, to Apolonio Flor-
entino III by inheritance during his life-time, and in
turn by inheritance to his legitimate mother, Severina
Faz de Leon, widow of the aforementioned Apolonio
Isabelo Florentino II.
In spite of the provision of Article 811 of the Civil
Code already cited, the trial judge refused to accept
the theory of the plaintiffs and, accepting that of the
defendants, absolved the latter from the complaint on
the ground that said article is absolutely inapplicable
to the instant case, inasmuch as the defendant Mer-

cedes Florentino survived her brother, Apolonio III,
from whom the reservable property came and her
mother, Severina Faz de Leon, the widow of her fa-
ther, Apolonio Isabelo Florentino II; that the defen-
dant Mercedes, being the only daughter of Severina
Faz de Leon, is likewise her forced heiress; that when
she inherited the property left at the death of her
mother, together with that which came from her de-
ceased brother Apolonio III, the fundamental object of
Article 811 of the Code was thereby complied with,
inasmuch as the danger that the property coming
from the same line might fall into the hands of
strangers had been avoided; and that the hope or ex-
pectation on the part of the plaintiffs of the right to
acquire the property of the deceased Apolonio III
never did come into existence because there is a
forced heiress who is entitled to such property.
The judgment appealed from is also founded on
the theory that Article 811 of the Civil Code does not
destroy the system of legitimate succession and that
the pretension of the plaintiffs to apply said article in
the instant case would be permitting the reservable
right to reduce and impair the forced legitime which
exclusively belongs to the defendant Mercedes Floren-
tino, in violation of the precept of Article 813 of the
same Code which provides that the testator cannot
deprive his heirs of their legitime, except in the cases
expressly determined by law. Neither can he impose
upon it any burden, condition, or substitution of any
kind whatsoever, saying the provision concerning the
usufruct of the surviving spouse, citing the decision of
the Supreme Court of Spain of January 4, 1911.
The principal question submitted to the court for
decision consists mainly in determining whether the
property left at the death of Apolonio III, the posthu-
mos (sic) son of Apolonio Isabelo II, was or was not in-
vested with the character of reservable property when
it was received by his mother, Severina Faz de Leon.
The property enumerated by the plaintiffs in
paragraph 5 of their complaint came, without any
doubt whatsoever, from the common ancestor Apolo-
nio Isabelo II, and when, on the death of Apolonio III

without issue, the same passed by operation of law
into the hands of his legitimate mother, Severina Faz
de Leon, it became reservable property in accordance
with the provision of Article 811 of the Code, with the
object that the same should not fall into the posses-
sion of persons other than those comprehended
within the order of succession traced by the law from
Apolonio Isabelo II, the source of said property. If this
property was In fact clothed with the character and
condition of reservable property when Severina Faz de
Leon inherited same from her son Apolonio III, she
did not thereby acquire the dominion or right of own-
ership but only the right of usufruct or of fiduciary,
with the necessary obligation to preserve and to de-
liver or return it as such reservable property to her
deceased son’s relatives within the third degree
among whom is her daughter, Mercedes Florentino.
Reservable property neither comes, nor falls un-
der, the absolute dominion of the ascendant who in-
herits and receives same from his descendant, there-
fore it does not form part of his own property nor be-
come the legitime of his forced heirs. It becomes his
own property only in case that all the relatives of his
own descendant shall have died (reseruista), in which
case said reservable property losses such character.
With full right Severina Faz de Leon could have
disposed in her will of all her own property In favor of
her only living daughter, Mercedes Florentino, as
forced heiress. But whatever provision there is in her
will concerning the reservable property received from
her son Apolonio III, or rather, whatever provision will
reduce the rights of the other reservatarios, the half
brothers and nephews of her daughter Mercedes, is
unlawful, null and void, inasmuch as said property is
not her own and she has only the right of usufruct or
of fiduciary; with the obligation to preserve and to de-
liver same to the reservatarios, one of whom is her
own daughter, Mercedes Florentino.
It cannot reasonably be affirmed, founded upon
an express provision of law, that by operation of law
all of the reservable property, received during lifetime
by Severina Faz de Leon from her son, Apolonio ill,

constitutes or forms part of the legitime pertaining to
Mercedes Florentino. If said property did not come to
be the legitimate and exclusive property of Severina
Faz de Leon, her only legitimate and forced heiress,
the defendant Mercedes, could not inherit all by op-
eration of law and in accordance with the order of le-
gitimate succession, because the other relatives of the
deceased Apolonio III, within the third degree, as well
as herself are entitled to such reservable property.
For this reason, in no manner can it be claimed
that the legitime of Mercedes Florentino, coming from
the inheritance of her mother Severina Faz de Leon,
has been reduced and impaired; and the application
of Article 811 of the Code to the instant case in no
way prejudices the rights of the defendant Mercedes
Florentino, inasmuch as she Is entitled to a part only
of the reservable property, there being no lawful or
just reason which serves as real foundation to disre-
gard the right to Apolonio Ill’s other relatives, within
the third degree, to participate in the reservable prop-
erty in question. As these relatives are at present liv-
ing, claiming for it with an indisputable right, we
cannot find any reasonable and lawful motive why
their rights should not be upheld and why they
should not be granted equal participation with the de-
fendant in the litigated property.
The claim that because of Severina Faz de
Leon’s forced heiress, her daughter Mercedes, the
property received from the deceased son Apolonio III
lost the character, previously held, of reservable prop-
erty; and that the mother, the said Severina, there-
fore, had no further obligation to reserve same for the
relatives within the third degree of the deceased
Apolonio III, is evidently erroneous for the reason
that, as has been already stated, the reservable prop-
erty, left in a will by the aforementioned Severina to
her only daughter Mercedes, does not form part of the
inheritance left by her death nor of the legitime of the
heiress Mercedes. Just because she has a forced heir-
ess, with a right to her inheritance, does not relieve
Severina of her obligation to reserve the property
which she received from her deceased son, nor did

same lose the character of reservable property, held
before the reservatarios received same.
It is true that when Mercedes Florentino, the
heiress of the reservista Severina, took possession of
the property in question, same did not pass into the
hands of strangers. But it is likewise true that the
said Mercedes is not the only reservatario. And there
is no reason founded upon law and upon the principle
of justice why the other reservatarios, the other broth-
ers and nephews, relatives within the third degree in
accordance with the precept of Article 811 of the Civil
Code, should be deprived of portions of the property
which, as reservable property, pertain to them.
From the foregoing it has been shown that the
doctrine announced by the Supreme Court of Spain
on January 4, 1911, for the violation of Articles 811,
968 and consequently of the Civil Code is not appli-
cable in the instant case.
Following the provisions of Article 813, the Su-
preme Court of Spain held that the legitime of the
forced heirs cannot be reduced or impaired and said
article is expressly respected In this decision.
However, in spite of the efforts of the appellee to
defend their supposed rights, it has not been shown,
upon any legal foundation, that the reservable prop-
erty belonged to, and was under the absolute domin-
ion of the reservista, there being relatives within the
third degree of the person from whom same came;
that said property, upon passing into the hands of the
forced heiress of the deceased reservista, formed part
of the legitime of the former; and that the said forced
heiress, in addition to being a reservatario, had an
exclusive right to receive all of said property and to
deprive the other reservatarios, her relatives within
the third degree, of certain portions thereof.
Actually, there will be only one instance of representation

among the reservatarios, i.e., a case of the Prepositus being
survived by brothers/sisters and children of a predeceased or
incapacitated brother/sister.
VIII. Juridical Nature
The juridical nature of reserva troncal may be viewed from

two aspects—from that of the reservista and that of the reserva-
tarios.
1. Nature of reservista’s right:
Edroso vs. Sablan
25 Phil. 295 (1913)
ARELLANO, C.J.:
xxx xxx xxx

Marcelina Edroso was married to Victoriano Sa-
blan until his death on September 22, 1882. In this
marriage they had a son named Pedro, who was bom
on August 1, 1881, and who at his father’s death in-
herited the two said parcels. Pedro also died on July
15, 1902, unmarried and without issue, and by his
decease the two parcels of land passed through in-
heritance to his mother, Marcelina Edroso. Hence, the
hereditary title whereupon is based the application for
registration of her ownership.
Two legitimate brothers of Victoriano Sablan—
that is, two uncles german of Pedro Sablan—appeared
in the case to oppose the registration, claiming one of
two things: Either that the registration be denied, “or
that if granted to her the right reserved by law to the
opponents be recorded in registration of each parcel.”
The Court of Land Registration denied the regis-
tration and the applicant appealed through a bill of
exceptions.
Registration was denied because the trial court
held that the parcels of land in question partake of
the nature of property required by law to be reserved
and that In such a case application could only be pre-
sented jointly in the names of the mother and the said
two uncles of Pedro Sablan.
The appellant impugns as erroneous the first
idea advanced (second assignment of error), and de-
nies that the lands which are the subject matter of

the application are required by law to be reserved—a
contention we regard as indefensible.
Facts: (1) The applicant acquired said lands
from her descendant Pedro Sablan by inheritance: (2)
Pedro Sablan had acquired them from his ascendant
Victoriano Sablan, likewise by inheritance; (3) Victori-
ano Sablan had likewise acquired them by inheri-
tance from his ascendants, Mariano Sablan and
Maria Rita Fernandez, they having been adjudicated
to him in the partition of hereditary property had be-
tween him and his brothers. These are admitted facts.
A very definite conclusion of law is that the he-
reditary title is one without a valuable consideration
[gratuitous title], and it is so characterized in Article
968 of the Civil Code, for he who acquires by inheri-
tance gives nothing in return for what he receives;
and a very definite conclusion of law also is that the
uncles german are within the third degree of blood re-
lationship.
“The ascendant who inherits from his descen-
dant property which the latter acquired without a
valuable consideration from another ascendant, or
from a brother or sister, is under obligation to reserve
what he has acquired by operation of law for the rela-
tives who are within the third degree and belong to
the line whence the property proceeded.” (Civil Code,
Art. 811.)
Marcelina Edroso, ascendant of Pedro Sablan,
inherited from him these two parcels of land which he
had acquired without a valuable consideration—that
is, by inheritance from another ascendant, his father
Victoriano. Having acquired them by operation of law,
she is obligated to reserve them intact for the claim-
ants, who are uncles or relatives within the third de-
gree and belong to the line of Mariano Sablan and
Maria Rita Fernandez, whence the lands proceeded.
The trial court’s ruling that they partake of the nature
of property required by law to be reserved is therefore
in accordance with the law.
But the appellant contends that it is not proven

that the two parcels of land in question have been ac-
quired by operation of law, and that only property ac-
quired without a valuable consideration, which is by
operation of law, is required by law to be reserved.
xxx xxx xxx
xxx, it is not superfluous to say, although it may
be unnecessary, that the applicant inherited the two
parcels of land from her son Pedro, who died “unmar-
ried and without issue.” The trial court so held as a
conclusion of fact, without any objection on the appel-
lant’s part. (B. of E., 17, 20.) When Pedro Sablan died
without issue, his mother became his heir by virtue of
her right to her son’s legal portion under Article 935
of the Civil Code:
xxx xxx xxx
The contrary could only have occurred if the
heiress had demonstrated that any of these lands had
passed into her possession by free disposal in her
son’s will; but the case presents no testamentary pro-
vision that demonstrates any transfer of property
from the son to the mother, not by operation of law,
but by her son’s wish. The legal presumption is that
the transfer of the two parcels of land was abintestate
or by operation of law, and not by will or the wish of
the predecessor in interest. (Act. No. 190, Sec. 334,
No. 26) All the provisions of Article 811 of the Civil
Code have therefore been fully complied with.
xxx xxx xxx
Now comes the main point in the appeal. The
trial court denied the registration because of this find-
ing set forth in its decision:
“Absolute title to the two parcels of land
undoubtedly belongs to the applicant and the
two uncles of the deceased Pedro Sablan, and
the application cannot be made except in the
name of all of them in common.” (B of E., p. 20.)
It must be remembered that absolute title con-
sists of the rights to use, enjoy, dispose of, and re-
cover. The person who has in himself all these rights

has the absolute or complete ownership of the thing;
otherwise, the person who has the rights to use and
enjoy will have the usufruct, and the person who has
the rights of disposal and recovery the direct title. The
person who by law, act, or contract is granted the
right of usufruct has the first two rights of using and
enjoying, and then he is said not to have the fee sim-
ple—that is, the rights of disposal and recovery, which
pertain to another who, after the usufruct expires, will
come into full ownership.
The question set up in the first assignment of er-
ror of the appellant’s brief is this:
What are the rights in the property of the person
who holds it subject to the reservation of Article 811 of
the Civil CodeT
There are not lacking writers who say, only
those of a usufructuary, the ultimate title belonging to
the persons in whose favor the reservation is made. If
that were so, the person holding the property could
not apply for registration of title, but the person In
whose favor it must be reserved, with the former’s
consent. This opinion does not seem to be admissible,
although it appears to be supported by decisions of
the supreme court of Spain of May 21, 1861, and
June 18, 1880, prior to the Civil Code, and of June
22, 1895, somewhat subsequent to the enforcement
thereof.
Another writer says: “This opinion only looks at
two salient points—the usufruct and the fee simple;
the remaining features of the arrangement are not
perceived, but become obscured in the presence of
that deceptive emphasis which only brings out two
things: that the person holding the property will enjoy
it and that he must keep what he enjoys for other
persons.” (Manresa, VII, 189.)
In another place he says: “We do not believe that
the third opinion can now be maintained that is, that
the surviving spouse (the person obligated by Article
968 to make the reservation) can be regarded as a
mere usufructuary and the descendants immediately
as the owner; such theory has no serious foundation

in the Code.” (Ibid., 238.)
The ascendant who inherits from a descendant,
whether by the latter's wish or by operation of law,
acquires the inheritance by virtue of a title perfectly
transferring absolute ownership. All the attributes of
the right of ownership belong to him exclusively—use,
enjoyment, disposal and recovery. This absolute own-
ership which is inherent in the hereditary title, is not
altered in the least, if there be no relatives within the
third degree in the line whence the property proceeds
or they die before the ascendant heir who is the pos-
sessor and absolute owner of the property. If there
should be relatives within the third degree who belong
to the line whence the property proceeded, then a
limitation to that absolute ownership would arise. The
nature and scope of this limitation must be deter-
mined with exactness in order not to vitiate rights
that the law wishes to be effective. The opinion which
makes this limitation consist in reducing the ascen-
dant heir to the condition of a mere usufructuary, de-
priving him of the right of disposal and recovery, does
not seem to have support in the law, as it does have,
according to the opinion that has been expressed in
speaking of the rights of the father or mother who has
married again. There is a marked difference between
the case where a man’s wish institutes two persons as
his heirs, one as usufructuary and the other as owner
of his property, and the case of the ascendant in Arti-
cle 811 or of the father or mother in Article 968. In
the first case, there is not the slightest doubt that the
title to the hereditary property resides in the heredi-
tary owner and only he can dispose of and recover it,
while the usufructuary can in no way perform any act
of disposal of the hereditary property (except that he
may dispose of the right of usufruct in accordance
with the provisions of Article 480 of the Civil Code), or
any act of recovery thereof except the limited one in
the form prescribed in Article 486 of the Code itself,
because he totally lacks the fee simple. But the as-
cendant who holds the property required by Article
811 to be reserved, and the father or mother required
by Article 968 to reserve the right, can dispose of the
property they Inherit itself, the former from his de-

scendant and the latter from his or her child in first
marriage, and recover it from anyone who may un-
justly detain it, while the persons in whose favor the
right is required to be reserved in either case cannot
perform any act whatsoever of disposal or of recovery.
Article 975 states explicitly that the father or
mother required by Article 968 to reserve the right
may dispose of the property itself:
“Alienation of the property required by law to be
reserved which may be made by the surviving spouse
after contracting a second marriage shall be valid only
if at his or her death no legitimate children or descen-
dants of the first marriage survive, without prejudice
to the provisions of the Mortgage Law.” It thus ap-
pears that the alienation is valid, although not alto-
gether effective, but under a condition subsequent, to
wit: “If at his or her death no legitimate children or
descendants of the first marriage survive.”
If the title did not reside in the person holding
the property to be reserved, his alienation thereof
would necessarily be null and void, as executed with-
out a right to do so and without a right which he
could transmit to the acquirer. The law says that the
alienation subsists (to subsist is to continue to exist)
“without prejudice to the provisions of the Mortgage
Law.” Article 109 of this Law says:
“The possessor of property subject to conditions
subsequent that are still pending may mortgage or
alienate it, provided always that he preserve the right
of the parties interested in said conditions by ex-
pressly reserving the right in the registration."
In such case, the child or legitimate descendant
of the first marriage in whose favor the right is re-
served cannot impugn the validity of the alienation so
long as the condition subsequent is pending, that is,
so long as the remarried spouse who must reserve the
right is alive, because it might easily happen that the
person who must reserve the right should outlive all
the persons in whose favor the right is reserved and
then there would be no reason for the condition sub-
sequent that they survive him, and, the object of the

law having disappeared, the right required to be re-
served would disappear, and the alienation would not
only be valid but also in every way absolutely effec-
tive. Consequently, the alienation is valid when the
right required by law to be reserved to the children is
respected; while the effects of the alienation depend
upon a condition, because it will or will not become
definite, it will continue to exist or cease to exist, ac-
cording to circumstances. This is what the law estab-
lishes with reference to the reservation of Article 968,
wherein the legislator expressly directs that the sur-
viving spouse who contracts a second marriage shall
reserve to the children or descendants of the first
marriage ownership. Article 811 says nothing more
than that the ascendant must make the reservation.
Manresa, with his recognized ability, summa-
rizes the subject under the heading, “Rights and obli-
gations during the existence of the right required by
law to be reserved,” in these words:
“During the whole period between the constitu-
tion in legal form of the right required by law to be re-
served and the extinction thereof, the relatives within
the third degree, after the right that in their turn may
pertain to them has been assured, have only an ex-
pectation, and therefore they do not even have the ca-
pacity to transmit that expectation to their heirs.
“The ascendant is in the first place a usufructu-
ary who should use and enjoy the things according to
their nature, in the manner and form already set forth
in commenting upon the articles of the Code referring
to use and usufruct.
“But since in addition to being the usufructuary
he is, even though conditionally, the owner in fee
simple of the property, he can dispose of it in the
manner provided in Articles 974 and 976 of the same
Code. Doubt arose also on this point, but the Direc-
cion General of the registries, in an opinion of June
25, 1892, declared that Articles 974 and 975, which
are applicable by analogy, for they refer to property
reserved by law, reveal in the clearest manner the at-
titude of the legislator on this subject, and the rela-

tives within the third degree ought not to be more
privileged in the right reserved in Article 811 than the
children in the right reserved by Article 975, chiefly
for the reason that the right required to be reserved
carries with it a condition subsequent, and the prop-
erty subject to those conditions can validly be alien-
ated in accordance with Article 109 of the Mortgage
Law, such alienation to continue, pending fulfillment
of the condition.” (Civil Code, VI, 270.)
Another commentator corroborates the foregoing
in every way. He says:
‘The ascendant acquires that property with a
condition subsequent, to wit, whether or not there ex-
ist at the time of his death relatives within the third
degree of the descendant from whom they Inherit in
the line whence the property proceeds. If such rela-
tives exist, they acquire ownership of the property at
the death of the ascendant. If they do not exist, the
ascendant can freely dispose thereof. If this is true,
since the possessor of property subject to conditions
subsequent can alienate and encumber it, the ascen-
dant may alienate the property required by law to be
reserved, but he will alienate what he has and noth-
ing more because no one can give what does not be-
long to him, and the acquirer will therefore receive a
limited and revocable title. The relatives within the
third degree will in their turn have an expectation to
the property while the ascendant lives, an expectation
that cannot be transmitted to their heirs, unless these
are also within the third degree. After the person who
is required by law to reserve the right has died, the
relatives may rescind the alienation of the realty re-
quired by law to be reserved and they will acquire it
and all the rest that has the same character in com-
plete ownership, in fee simple, because the condition
and the usufruct have been terminated by the death
of the usufructuary.” (Morell, Estudios sobre bienes
reservables, 304, 305.)
The conclusion is that the person required by
Article 811 to reserve the right has, beyond any doubt
at all, the rights of use and usufruct. He has, more-
400 JOTTINGS AND JURISPRUDENCE 891
over, for the reasons set forth, the legal title and do-
minion, although under a condition subsequent.
Clearly he has, under an express provision of the law,
the right to dispose of the property reserved, and to
dispose of is to alienate, although under a condition.
He has the right to recover it, because he is the one
who possesses or should possess it and have tide to
it, although a limited and revocable one. In a word,
the legal title and dominion, even though under a
condition, reside in him while he lives. After the right
required by law to be reserved has been assured, he
can do anything that a genuine owner can do.
On the other hand, the relatives within the third
degree in whose favor the right is reserved cannot
dispose of the property, first because it is in no way,
either actually, constructively or formally, in their
possession; and, moreover, because they have no title
of ownership or of fee simple which they can transmit
to another, on the hypothesis that only when the per-
son who must reserve the right should die before
them will they take their place in the succession of
the descendant of whom they are relatives within the
third degree, that is to say, a second contingent place
in said legitimate succession in the fashion of aspi-
rants to a possible future legacy. If any of the persons
in whose favor the right is reserved should, after their
right has been assured in the registry, dare to dispose
of even nothing more than the fee simple of the prop-
erty to be reserved his act would be null and void, for,
as was definitely decided in the decision on appeal of
December 30, 1897, it is impossible to determine the
part “that might pertain therein to the relative at the
time he exercised the right, because in view of the na-
ture and scope of the right required by law to be re-
served the extent of his right cannot be foreseen, for it
may disappear by his dying before the person re-
quired to reserve it, just as it may even become abso-
lute should that person die.”
Careful consideration of the matter forces the
conclusion that no act of disposal inter vivos of the
person required by law to reserve the right can be im-
pugned by him in whose favor it is reserved, because
such person has all, absolutely all, the rights inherent

in ownership, except that the legal title is burdened
with a condition that the third party acquirer may as-
certain from the registry in order to know that he is
acquiring a title subject to a condition subsequent. In
conclusion, it seems to us that only an act of disposal
mortis causa in favor of persons other than relatives
within the third degree of the descendant from whom
he got the property to be reserved must be prohibited
to him, because this alone has been the object of the
law: ‘To prevent persons outside a family from secur-
ing, by some special accident of life, property that
would otherwise have remained therein.” (Decision of
December 30, 1897)
Practically, even in the opinion of those who
reduce the person reserving the right to the condi-
tion of a mere usufructuary, the person in whose fa-
vor it must be reserved cannot attack the alienation
that may be absolutely made of the property the law
requires to be reserved, in the present case, that
which the applicant has made of the two parcels of
land in question to a third party, because the condi-
tional alienation that is permitted her is equivalent
to an alienation of the usufruct, which is authorized
by Article 480 of the Civil Code, and, practically, use
and enjoyment of the property required by law to be
reserved are all that the person who must reserve it
has during his lifetime, and in alienating the usu-
fruct all the usefulness of the thing would be trans-
mitted in an incontrovertible manner. The question
as to whether or not she transmits the fee simple is
purely academic, sine re, for it is not real, actual
and positive, as is the case of the institution of two
heirs, one a usufructuary and the other the owner,
by the express wish of the predecessor in interest.
If the person whom Article 811 requires to re-
serve the right has all the rights inherent in owner-
ship, he can use, enjoy, dispose of and recover it: and
if, in addition to usufructuary, he is in fact and in law
the real owner and can alienate it, although under a
condition, the whole question is reduced to the follow-
ing terms:
Cannot the heir of the property required by law

to be reserved, merely because a condition subse-
quent is annexed to his right of disposal, himself
alone register the ownership of the property he has
inherited, when the persons in whose favor the reser-
vation must be made agree thereto, provided that the
right reserved to them in the two parcels of land be
recorded, as the law provides?
It is well known that the vendee under pacto de
retracto acquires all the rights of the vendor:
“The vendee substitutes the vendor in all his
rights and actions.” (Civil Code, Art. 1511)
If the vendor can register his title, the vendee
can also register this same title after he has once ac-
quired it. This title, however, in its attribute of being
disposable, has a condition subsequent annexed—
that the alienation the purchaser may make will be
terminated, if the vendor should exercise the right
granted him by Article 1507, which says:
“Conventional redemption shall take place when
the vendor reserves to himself the right to recover the
thing sold with the obligation to comply with Article
1518, and whatever more may have been agreed
upon," that is, if he recovers the thing sold by repay-
ing the vendee the price of the sale and other ex-
penses. Notwithstanding this condition subsequent, it
is a point not at all doubtful now that the vendee may
register his title in the same way as the owner of a
thing mortgaged—that is to say, the latter with the
consent of his creditor and the former with the con-
sent of the vendor. He may alienate the thing bought
when the acquirer knows very well from the title en-
tered in the registry that he acquires a title revocable
after a fixed period, a thing much more certain and to
be expected than the purely contingent expectation of
the person in whose favor is reserved a right to inherit
some day what another has inherited. The purpose of
the law would be defeated in not applying to the per-
son who must make the reservation the provision
therein relative to the vendee under pacto de retracto,
since the argument In his favor is the more powerful
and conclusive; ubi eadem ratio, eadem legis disposi-

tio.
Therefore, we reverse the judgment appealed
from, and in lieu thereof decide and declare that the
applicant is entitled to register in her own name the
two parcels of land which are the subject matter of
the application, recording in the registration the right
required by Article 811 to be reserved to either or both
of the opponents, Pablo Sablan and Basilio Sablan,
should they survive her.
From Edroso, the following may be derived:

1. The reservista’s right over the reserved property is
one of ownership.
2. The ownership is subject to a resolutory condition,
i. e., the existence of reservatarios at the time of the
reservistds death.
3. The right of ownership is alienable, but subject to
the same resolutory condition (reiterated in Nono v.
Nequia, 93 Phil. 120 [1953]).
4. The reservistd!s right of ownership is registrable.
2. Nature of reservatarios' right
Sienes vs. Esparcia

1 SCRA 750 (1961)
DIZON, J.:
xxx xxx xxx
Lot 3368 originally belonged to Satumino Yaeso.

With his first wife, Teresa Ruales, he had four chil-
dren named Agaton, Fernando, Paulina and Cipriana,
while with his second wife, Andrea Gutang, he had an
only son named Francisco. According to the cadastral
records of Ayuquitan, the properties left by Satumino
upon his death—the date of which does not clearly
appear of record—were left to his children as follows:
Lot 3366 to Cipriana, Lot 3367 to Fernando, Lot 3375
to Agaton, Lot 3377 (southern portion) to Paulina, and
Lot 3368 (western portion) to Francisco. As a result of

the cadastral proceedings, Original Certificate of Title
No. 10275 covering Lot 3368 was issued in the name
of Francisco. Because Francisco was minor at the
time, his mother administered the property for him,
declared it in her name for taxation purposes (Exhs. A
& A-l), and paid the taxes due thereon (Exhs. B, C, C-
1 & C-2). When Francisco died on May 29, 1932 at
the age of 20, single and without any descendant, his
mother, as his sole heir, executed the public instru-
ment Exhibit F entitled EXTRAJUDICIAL SETTLE-
MENT AND SALE whereby, among other things, for
and in consideration of the sum of P800.00, she sold
the property in question to appellants. When thereaf-
ter said vendees demanded from Paulina Yaeso and
her husband Jose Esparcia, the surrender of Original
Certificate of Title No. 10275—which was in their pos-
session—the latter refused, thus giving rise to the fil-
ing of the corresponding motion in the cadastral re-
cord No. 507. The same, however, was denied (Exhs.
8 & 9).
Thereafter, or more specifically, on July 30,

1951, Cipriana and Paulina Yaeso, the surviving half-
sisters of Francisco, and who as such had declared
the property in their name, on January 1, 1951 exe-
cuted a deed of sale in favor of the spouses Fidel Es-
parcia and Paulina Sienes (Exh. 2) who, in turn, de-
clared it in their name for tax purposes and thereafter
secured the issuance in their name of Transfer Cer-
tificate of Title No. T-2141 (Exhs. 5 & 5-A).
As held by the trial court, it is clear upon the

facts already stated, that the land in question was re-
servable property. Francisco Yaeso inherited it by op-
eration of law from his father Satumino, and upon
Francisco’s death, unmarried and without descen-
dants, it was inherited, in turn, by his mother, An-
drea Gutang. The latter was, therefore, under obliga-
tion to reserve it for the benefit of relatives within the
third degree belonging to the line from which said
property came, if any survived her. The record dis-
closes in this connection that Andrea Gutang died on
December 13, 1951, the lone reservee surviving her
being Cipriana Yaeso who died only on January 13,

1952 (Exh. 10).
In connection with reservable property, the

weight of opinion is that the reserva creates two reso-
lutory conditions, namely, (1) the death of the ascen-
dant obliged to reserve and (2) the survival, at the
time of his death, of relatives within the third degree
belonging to the line from which the property came (6
Manresa 268-269; 6 Sanchez Roman 1934). This
Court has held in connection with this matter that the
reservista has the legal title and dominion to the re-
servable property but subject to a resolutory condi-
tion; that he is like a life usufructuary of the reserv-
able property but subject to the reservation, said
alienation transmitting only the revocable and condi-
tional ownership of the reservista, the rights acquired
by the transferee being revoked or resolved by the
survival of reservatarios at the time of the death of the
reservista (Edroso v. Sablan, 25 Phil. 295; Lunsod vs.
Ortega, 46 Phil. 664; Florentino vs. Florentino, 40
Phil. 480; and Director of Lands vs. Aguas, 65 Phil.
279).
The sale made by Andrea Gutang in favor of ap-

pellees was, therefore, subject to the condition that
the vendees would definitely acquire ownership, by
virtue of the alienation, only if the vendor died without
being survived by any person entitled to the reserv-
able property. Inasmuch as when Andrea Gutang
died, Cipriano Yaeso was still alive, the conclusion be-
comes inescapable that the previous sale made by the
former in favor of appellants became of no legal effect
and the reservable property subject matter thereof
passed in exclusive ownership to Cipriana.
On the other hand, it is also clear that the sale

executed by the sisters Paulina and Cipriana Yaeso in
favor of the spouses Fidel Esparcia and Paulina Sie-
nes was subject to a similar resolutory condition. The
reserva instituted by law in favor of the heirs within
the third degree belonging to the line from which the
reservable property came, constitutes a real right
which the reservee may alienate and dispose of, albeit
conditionally, the condition being that the alienation

shall transfer ownership to the vendee only if and
when the reservee survives the person obliged to re-
serve. In the present case, Cipriana Yaeso, one of the
reservees, was still alive when Andrea Gutang, the
person obliged to reserve, died. Thus the former be-
came the absolute owner of the reservable property
upon Andrea’s death. While it may be true that the
sale made by her and her sister prior to this event,
became effective because of the occurrence of the re-
solutory condition, we are not now in a position to re-
verse the appealed decision, in so far as it orders the
reversion of the property in question to the Estate of
Cipriana Yaeso, because the vendees—the Esparcia
spouses—did not appeal therefrom.
WHEREFORE, the appealed decision—as above

modified—is affirmed, with costs, and without preju-
dice to whatever action in equity the Esparcia spouses
may have against the Estate of Cipriana Yaeso for the
reconveyance of the property in question.
From Sienes, the following may be derived or implied:
i. The reservatarios have a right of expectancy over

the property.
ii. The right is subject to a suspensive condition,

Le., the expectancy ripens into ownership if the
reservatarios survive the reservista
iii. The right is alienable, but subject to the same

suspensive condition (Note: Sienes erroneously
refers to the condition as “resolutory”).
iv. The right is registrable.
3. Whether the reservista may, by will, prefer some

reservatarios over others:
The rule, laid own in Florentino (supra), that the reservista

had no power to appoint, by will, which reservatarios were to
get the reserved property, was confirmed in Gonzales v. CFI.
Gonzales vs. CFI
104 SCRA 479 (1981)
AQUINO, J.:
xxx xxx xxx

Benito Legarda y De la Paz, the son of Benito
Legarda y Tuason, died in Manila on June 17, 1933.
He was survived by his widow, Filomena Roces, and
their seven children: four daughters named Beatriz,
Rosario, Teresa and Filomena and three sons named
Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by
Benito Legarda y Tuason were partitioned in three
equal portions by his daughters, Consuelo and Rita,
and the heirs of his son Benito Legarda y De la Paz
who were represented by Benito F. Legarda.
Filomena Legarda y Roces died intestate and
without issue on March 19, 1943. Her sole heiress
was her mother, Filomena Roces Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affida-
vit adjudicating extrajudicially to herself the properties
which she inherited from her deceased daughter, Filo-
mena Legarda.
xxx xxx xxx
xxx. As a result of the affidavit of adjudication,
Filomena Roces succeeded her deceased daughter
Filomena Legarda as co-owner of the properties held
pro indiviso by her other six children.
Mrs. Legarda on March 6, 1953 executed two
handwritten identical documents wherein she dis-
posed of the properties which she inherited from her
daughter, in favor of the children of her sons, Benito,
Alejandro and Jose (sixteen grandchildren in all).
xxx xxx xxx
During the period from July1958 to Februaiy
1959 Mrs. Legarda and her six surviving children par-
titioned the properties consisting of the one-third
share in the estate of Benito Legarda y Tuason which
the children inherited in representation of their fa-

ther, Benito Legarda y De la Paz.
Mrs. Legarda died on September 22, 1967. Her
will was admitted to probate as a holographic will in
the order dated July 16, 1968 of the Court of First In-
stance of Manila in Special Proceeding No. 70878,
Testate Estate of Filomena Roces Vda. de Legarda.
The decree of probate was affirmed by the Court of
Appeals in Legarda vs. Gonzales, CA-G.R. No. 43480-
R, July 30, 1976.
In the testate proceeding, Beatriz Legarda Gonza-
les, a daughter of the testatrix, filed on May 20, 1968 a
motion to exclude from the inventory of her mother’s es-
tate the properties which she inherited from her de-
ceased daughter, Filomena, on the ground that said
properties are reservable properties which should be in-
herited by Filomena Legarda’s three sisters and three
brothers and not by the children of Benito, Alejandro and
Jose, all sumamed Legarda. That motion was opposed
by the administrator, Benito F. Legarda.
Without awaiting the resolution on that motion,
Mrs. Gonzales filed on June 20, 1968 an ordinary civil
action against her brothers, sisters, nephews and
nieces and her mother’s estate for the purpose of se-
curing a declaration that the said properties are re-
servable properties which Mrs. Legarda could not be-
queath in her holographic will to her grandchildren to
the exclusion of her three daughters and her three
sons (See Paz vs. Madrigal, 100 Phil. 1085).
As already stated, the lower court dismissed the
action of Mrs. Gonzales. In this appeal under Repub-
lic Act No. 5440 she contends in her six assignments
of error that the lower court erred in not regarding the
properties in question as reservable properties under
Article 891 of the Civil Code.
On the other hand, defendants-appellees in their
six counter-assignments of error contend that the
lower court erred in not holding that Mrs. Legarda ac-
quired the estate of her daughter Filomena Legarda in
exchange for her conjugal and hereditary shares in
the estate of her husband Benito Legarda y De la Paz
and in not holding that Mrs. Gonzales waived her

right to the reservable properties and that her claim is
barred by estoppel, laches and prescription.
xxx xxx xxx
The question is whether the disputed properties
are reservable properties under Article 891 of the Civil
Code, formerly Article 811, and whether Filomena Ro-
ces Vda. de Legarda could dispose of them in her will
in favor of her grandchildren to the exclusion of her
six children.
Did Mrs. Legarda have the right to convey mortis
causa what she inherited from her daughter Filomena
to the reservees within the third degree and to bypass
the reservees in the second degree or should that in-
heritance automatically go to the reservees in the sec-
ond degree, the six children of Mrs. Legarda?
As will hereinafter be shown that is not a novel
issue or a question of first impression. It was resolved
in Florentino vs. Florentino, 40 Phil. 480. Before dis-
cussing the applicability to this case of the doctrine in
the Florentino case and other pertinent rulings, it may
be useful to make a brief discourse on the nature of
reserva troncal, also called lineal, familiar, extraordi-
naria o semi-troncal.
Much time, effort and energy were spent by the
parties in their five briefs in descanting on the nature
of reserva troncal which together with the reserva viu-
dal and reversion legal, was abolished by the Code
Commission to prevent the decedent’s estate from be-
ing entailed, to eliminate the uncertainty in ownership
caused by the reservation (which uncertainty impedes
the improvement of the reservable property) and to
discourage the confinement of property within a cer-
tain family for generations which situation allegedly
leads to economic oligarchy and is incompatible with
the socialization of ownership.
The Code Commission regarded the reservas as
remnants of feudalism which fomented agrarian un-
rest. Moreover, the reservas, insofar as they penalize
legitimate relationship, is considered unjust and in-

equitable.
However, the lawmaking body, not agreeing en-
tirely with the Code Commission, restored the reserva
troncal, a legal institution which, according to Man-
resa and Castan Tobenas, has provoked questions
and doubts that are difficult to resolve.
Reserva troncal is provided for in Article 811 of
the Spanish Civil Code, now Article 891.
xxx xxx xxx
In reserva troncal, (1) a descendant inherited or
acquired by gratuitous title property from an ascen-
dant or from a brother or sister; (2) the same property
is inherited by another ascendant or is acquired by
him by operation of law from the said descendant,
and (3) the said ascendant should reserve the said
property for the benefit of relatives who are within the
third degree from the deceased descendant (preposi-
tus) and who belong to the line from which the said
property came.
So, three transmissions are involved: (1) a first
transmission by lucrative title (inheritance or opera-
tion of law (intestate succession or legitime) from the
deceased descendant (causante de la reserva) in favor
of another descendant, the reservor or reservista,
which two transmissions precede the reservation, and
(3) a third transmission of the same property (in con-
sequence of the reservation) from the reservor to the
reservees (reservatarios) or the relatives within the
third degree from the deceased descendant belonging
to the line of the first ascendant, brother or sister of
the deceased descendant (6 Castan Tobenas, Derecho
Civil, Par. 1, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no
reserva. Thus, where one Bonifacia Lacema died and
her properties were inherited by her son, Juan Mar-
bebe, upon the death of Juan those lands should be
inherited by his half-sister, to the exclusion of his ma-
ternal first cousins. The said lands are not reservable
property within the meaning of Article 811 (Lacema

vs. Vda. de Corcino, 111 Phil. 872).
The persons involved in reserva troncal are (1)
the ascendant or brother or sister from whom the
property was received by the descendant by lucrative
or gratuitous title, (1) the descendant or prepositus
(propositus) who received the property, (3) the reservor
(reseruista), the other ascendant who obtained the
property from the prepositus by operation of law and
(4) the reservee (reservatario) who is within the third
degree from the prepositus and who belongs to the
line (lineas o tronco) from which the property came
and for whom the property should be reserved by the
reservor.
The reservees may be half-brothers and sisters
(Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs.
Court of First Instance of Negros Occidental, L-29901,
August 31, 1977, 78 SCRA 412). Fourth degree rela-
tives are not included (Jardin vs. Villamayor, 72 Phil.
392).
The rationale of reserva troncal is to avoid “el pe-
ligro de quebienes poseidos secularmente por una
familia pasen bruscamente a titulo gratuito a manos
extranas por el azar de los enlaces y muertes prema-
turas," or “impedir que, por un azar de la vida, perso-
nas extranas a una familia puedan adquirir bienes
que sin aquel hubieran quedado en ella” (6 Castan
Tobenas, Derecho Civil, Part 1, 6th Ed., 1980, p. 203;
Padura vs. Baldovino, 104 Phil. 1065).
xxx xxx xxx
In the instant case, the properties in question
were indubitably reservable properties in the hands of
Mrs. Legarda. Undoubtedly, she was a reservor. The
reservation became a certainty when at the time of
her death the reservees of relatives within the third
degree of the prepositus Filomena Legarda were living
or they survived Mrs. Legarda.
So, the ultimate issue in this case is whether
Mrs. Legarda as reservor, could convey the reservable
properties by will of mortis causa to the reservees
within the third degree (her sixteen grandchildren) to

the exclusion of the reservees in the second degree,
her three daughters and three sons.
As indicated at the outset, that issue is already
res judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in
her holographic will to her sixteen grandchildren the
reservable properties which she had inherited from
her daughter Filomena because the reservable proper-
ties did not form part of her estate (Cabardo vs.
Villanueva, 44 Phil. 186, 191). The reservor cannot
make a disposition mortis causa of the reservable
properties as long as the reservees survived the reser-
vor.
As repeatedly held in the Cano and Padura
cases, the reservees inherit the reservable properties
from the prepositus, not from the reservor.
Article 891 clearly indicates that the reservable
properties should be inherited by all the nearest rela-
tives within the third degree from the prepositus who
in this case are the six children of Mrs. Legarda. She
could not select the reservees to whom the reservable
property should be given and deprive the other re-
servees of their share therein.
To allow the reservor in this case to make a tes-
tamentary disposition of the reservable properties in
favor of the reservees in the third degree and, conse-
quently, to ignore the reservees in the second degree
would be a glaring violation of Article 891. That tes-
tamentary disposition cannot be allowed.
We have stated earlier that this case is governed
by the doctrine of Florentino vs. Florentino, 40 Phil.
480, a similar case, where it was ruled:
“Reservable property left, through a will or oth-
erwise, by the death of ascendant (reservista) together
with his own property in favor of another of his de-
scendants as forced heir, forms no part of the latter’s
lawful inheritance nor of the legitime, for the reason
that, as said properly continued to be reservable, the
heir receiving the same as an inheritance from his as-
Cendant has the strict obligation of its deliveiy to the

relatives, within the third degree, or the predecessor
in interest (prepositus), without prejudicing the right
of the heir to an aliquot part of the property, if he has
at the same time the right of a reservatario” (reservee).
xxx xxx xxx
Under the rule of stare decisis et non quieta
movere, we are bound to follow in this case the doc-
trine of the Florentino case. That doctrine means that
as long as during the reservor's lifetime and upon his
death there are relatives within the third degree of the
prepositus, regardless of whether those reservees are
common descendants of the reservor and the ascen-
dant from whom the property came, the property re-
tains its reservable character. The property should go
to the nearest reservees. The reservor cannot, by
means of his will, choose the reservee to whom the re-
servable property should be awarded.
The alleged opinion of Sanchez Roman that
there is no reserva troncal when the only relatives
within the third degree are the common descendants
of the predeceased ascendant and the ascendant who
would be obliged to reserve is irrelevant and sans
binding force in the light of the ruling in the Florentino
case.
It is contended by the appellees herein that the
properties in question are not reservable properties
because only relatives within the third degree from
the paternal line have survived and that when Mrs.
Legarda willed the said properties to her sixteen
grandchildren, who are third-degree relatives of Filo-
mena Legarda and who belong to the paternal line,
the reasons for the reserva troncal has been satisfied;
“to prevent persons outside a family from securing, by
some special accident of life, property that would oth-
erwise have remained therein.”
That same contention was advanced in the Flor-
entino case where the reservor willed the reservable
properties to her daughter, a full-blood sister of the
prepositus and ignored the other six reservors, the
relatives of the half-blood of the prepositus.
In rejecting that contention, this Court held that

the reservable property bequeathed by the reservor to
her daughter does not form part of the reservor’s estate
nor of the daughter’s estate but should be given to all the
seven reservees or nearest relatives of the prepositus
within the third degree.
This Court noted that, while it is true that by
giving the reservable property to only one reservee it
did not pass into the hands of strangers, neverthe-
less, it is likewise true that the heiress of the reservor
was only one of the reservees and there is no reason
founded upon law and justice why the other reservees
should be deprived of their shares in the reservable
property (pp. 894-5).
Applying that doctrine to this case, it results
that Mrs. Legarda could not dispose of in her will the
properties in question even if the disposition is in fa-
vor of the relatives within the third degree from Filo-
mena Legarda. The said properties, by operation of
Article 891, should go to Mrs. Legarda’s six children
as reservees within the second degree from Filomena
Legarda.
It should be repeated that the reservees do not
inherit from the reservor but from the prepositus, of
whom the reservees are the heirs mortis causa subject
to the condition that they must survive the reservor
(Padura vs. Baldovino, L-11960, December 27, 1958,
104 Phil. 1065).
The trial court said that the disputed properties
lost their reservable character due to the non-
existence of third-degree relatives of Filomena Legarda
at the time of the death of the reservor, Mrs. Legarda,
belonging to the Legarda family, “except third-degree
relatives who pertain to both” the Legarda and Roces
lines.
That holding is erroneous. The reservation could
have been extinguished only by the absence of reservees
at the time of Mrs. Legarda’s death. Since at the time of
her death, there were (and still are) reservees belonging
to the second and third degrees, the disputed properties
did not lose their reservable character. The disposition of
the said properties should be made in accordance with

Article 891 or the rule on reserva troncal and not in ac-
cordance with the reservor’s holographic will. The said
properties did not form part of Mrs. Legarda's estate.
(Cano vs. Director of Lands, 105 Phil. 1, 4)
The rule in this jurisdiction, therefore, is that, upon the

reservista’s death, the property passes by strict operation of
law (according to the rules of intestate succession, declared Pa-
dura [supra]), to the proper reservatarios. Thus, the selection of
which reservatarios will get the property is made by law and not
by the reservista
IX. The Property Reserved

A. Kind of property reservable.—Any kind, “cualquera
que sea su clase, muebles o inmuebles, fructiferos o
infructiferos, fungibles o no fungibles.” (6 Manresa,
op. cit, p. 313).
In Rodriguez v. Rodriguez, 101 Phil. 1098 (1957), a sugar

quota allotment (hence, incorporeal property) was held to be
reservable.
B. Effect of substitution—The very same property must
go through the process of transmissions, described
above, in order for the reserva to arise. Thus, the
self-same property must come from the Mediate
Source, to the Prepositus by gratuitous title, and to
the reservista by operation of law.
If the Prepositus substitutes the property by selling, bar-

tering, or exchanging it, the substitute cannot be reserved.
Note that while the property is with the Prepositus, there
is yet no reserva, which commences only when the property is
received by the reservista. Consequently, the Prepositus has,
over the property, plenary powers of ownership, and he may
exercise these powers to thwart a potential reserva As earlier
mentioned, the Prepositus is the arbiter of the reserva
Quaerendum. Would there be a reserva if the Prepositus

sold the property under pacto de retro and then redeemed it?
C. Reserved property not part of the reservista’s estate

upon his death.
Cano vs. Director

105 Phil. 1 (1959)
REYES, J.B.L., J.:
In an amended decision dated October 9, 1951,
issued in Land Registration Case No. 12, G.L.R.O.
Rec. No. 2835, the Court of First Instance of Sorsogon
decreed the registration of Lots Nos. 1798 and 1799 of
the Juban (Sorsogon) Cadastre, xxx.
xxx xxx xxx
The decision having become final, the decree
and the Certificate of Title (No. 0-20) were issued in
the name of Maria Cano, subject to reserva troncal in
favor of Eustaquia Guerrero. In October 1955, coun-
sel for the reservee (reservatario) Guerrero filed a mo-
tion with the Cadastral Court, alleging the death of
the original registered owner and reservista, Maria
Cano, on September 8, 1955, and praying that the
Original Certificate of Title be ordered cancelled and a
new one issued in favor of movant Eustaquia Guer-
rero; and that the Sheriff be ordered to place her in
possession of the property. The motion was opposed
by Jose and Teotimo Fernandez, sons of the reservista
Maria Cano, who contended that the application and
operation of the reserva troncal should be ventilated in
an ordinary contentious proceeding, and that the Reg-
istration Court did not have jurisdiction to grant the
motion.
In view of the recorded reserva in favor of the
appellee, as expressly noted in the final decree of reg-
istration, the lower court granted the petition for the
issuance of a new certificate, for the reason that the
death of the reservista vested the ownership of the
property in the petitioner as the sole reservatario tron-
cal.
The oppositors, heirs of the reservista Maria
Cano duly appealed from the order, insisting that the
ownership of the reservatario can not be decreed in a

mere proceeding under Sec. 112 of Act. 496, but re-
quires a judicial administration proceeding, wherein
the rights of appellee, as the reservatario entitled to
the reservable property, are to be declared. In this
connection, appellants argue that the reversion in fa-
vor of the reservatario requires the declaration of the
existence of the following facts:
“(1) The property was received by a de-
scendant by gratuitous title from an ascendant
or from a brother or sister;
(2) Said descendant dies without issue;
(3) The property is inherited by another
ascendant by operation of law; and
(4) The existence of relatives within the
third degree belonging to the line from which
said property came." (Appellants’ Brief, p. 8)
We find the appeal untenable. The requisites enu-

merated by appellants have already been declared to ex-
ist by the decree of registration wherein the rights of the
appellee as reservatario troncal were expressly recog-
nized:
‘From the above-quoted agreed stipulation
of facts, it is evident that Lot No. 1799 was ac-
quired by the applicant Maria Cano by inheri-
tance from her deceased daughter, Lourdes
Guerrero who, in turn, inherited the same from
her father Evaristo Guerrero and, hence, falls
squarely under the provisions of Article 891 of
the Civil Code; and that each and everyone of
the private oppositors are within the third degree
of consanguinity of the decedent Evaristo Guer-
rero, and who belonging to the same line from
which the property came.
It appears, however, from the agreed stipulation
of facts that with the exception of Eustaquia Guer-
rero, who is the only living daughter of the decedent
Evaristo Guerrero, by his former marriage, all the
other oppositors are grandchildren of the said
Evaristo Guerrero by his former marriages. Eustaquia
Guerrero, being the nearest of kin, excludes all the

other private oppositors, whose degree of relationship
to the decedent is remoter (Article 962, Civil Code; Di-
rector of Lands vs. Aguas, 62 Phil. 279)’” (Rec. App.
Pp. 16-17)
This decree having become final, all persons
(appellees included) are barred thereby from contest-
ing the existence of the constituent elements of the
reserva The only requisites for the passing of the title
from the reservista to the appellee are: (1) the death of
the reservista; and (2) the fact that the reservatario
has survived the reservista Both facts are admitted,
and their existence is nowhere questioned.
The contention that an intestacy proceeding is
still necessary rests upon the assumption that the re-
servatario will succeed in, or inherit, the reservable
property from the reservista This is not true. The re-
servatario is not the reservista's successor mortis
causa nor is the reservable property part of the reserv-
ista's estate; the reservatario receives the property as
a conditional heir of the descendant (prepositus), said
property merely reverting to the line of origin from
which it had temporarily and accidentally strayed
during the reservista’s lifetime. The authorities are all
agreed that there being reservatarios that survive the
reservista the latter must be deemed to have enjoyed
no more than a life interest in the reservable property.
It is a consequence of these principles that upon
the death of the reservista, the reservatario nearest to
the prepositus (the appellee in this case) becomes,
automatically and by operation of law, the owner of the
reservable property. As already stated, that property
is no part of the estate of the reservista, and does not
even answer for the debts of the latter. Hence, its ac-
quisition by the reservatario may be entered in the
property records without necessity of estate proceed-
ings, since the basic requisites therefor appear of re-
cord. It is equally well settled that the reservable
property can not be transmitted by a reservista to her
or his own successors mortis causa, (like appellants
herein) so long as a reservatario within the third de-
gree from the prepositus and belonging to the line

where the property came, is in existence when the re-
servista dies.
Of course, where the registration decree merely
specifies the reservable character of the property,
without determining the identity of the reservatario
(as in the case of Director of Lands vs. Aguas, 63 Phil.
279) or where several reservatarios dispute the prop-
erty among themselves, further proceedings would be
unavoidable. But this is not the case. The rights of the
reservataria Eustaquia Guerrero have been expressly
recognized, and it is nowhere claimed that there are
other reservatarios of equal or nearer degree. It is
thus apparent that the heirs of the reservista are
merely endeavoring to prolong their enjoyment of the
reservable property to the detriment of the party law-
fully entitled thereto.
The Cano ruling is perfectly consistent with the principle

that the reserved property, upon the reservista’a death, passes
to the reservatarios by strict operation of law. It may be stated,
relevantly, that as a consequence of the rule laid down in Cano,
since the reserved property is not computed as part of the re-
servista’s estate, it is not taken into account in determining the
legitimes of the reservista’s compulsory heirs.
D. Reserva maxima—Reserva minima
A problem will arise if two circumstances concur: (1) the
Prepositus makes a will instituting the ascendant-reservista to
the whole or a part of the free portion; and (2) there is left in
the Prepositus’ estate, upon his death, in addition to the re-
served property, property not reservable.
Two theories have been advanced:
1. Reserva maximar—As much of the potentially re-
servable property as possible must be deemed in-
cluded in the part that passes by operation of law.
This “maximizes” the scope of the reserva.
2. Reserva minima—Every single property in the Pre-
positus’ estate must be deemed to pass, partly by
will and partly by operation of law, in the same

proportion that the part given by will bears to the
part not so given.
Either view is defensible. The minima, however, finds wider
acceptance here and in Spain.
X. Rights and Obligations:
A. No explicit provision: Unlike the old reserva viudal,
the reserva troncal does not have any implementing
articles. This absence was solved under the old Code
simply by extending to the troncal the implementing
provisions of the viudal. Thus in Dizon v. Galang, 48
Phil. 601 (1926), and Riosa v. Rocha, 48 Phil. 737
(1926), the rights of the reservatarios (and the corre-
sponding obligations of the reservista) were:
1. To inventory the reserved properties;

2. To annotate the reservable character (if regis-
tered immovables) in the Registry of Property
within 90 days from acceptance by the reserv-
ista;
3. To appraise the movables;

4. To secure by means of mortgage: a) the indem-
nity for any deterioration of or damage to the
property occasioned by the reservista’s fault or
negligence, and b) the payment of the value of
such reserved movables as may have been alien-
ated by the reservista onerously or gratuitously.
The abolition of the reserva viudal has caused some uncer-
tainty whether these requirements still apply.
The case of Sumaya v. IAC, 201 SCRA 178 (1991), provides
some help. It states that the requirement of annotation re-
mains, despite the abolition of the reserva viudal. As pointed
out in Sumaya:
“Consistent with the rule in reserva viudal where

the person obliged to reserve (the widowed spouse)
had the obligation to annotate in the Registry of Prop-

erty the reservable character of the property, in re-
serva troncal, the reservor (the ascendant who inher-
ited from a descendant property which the latter in-
herited from another descendant) has the duty to re-
serve and therefore, the duty to annotate also.
“The jurisprudential rule requiring annotation in
the Registry of Property of the right reserved In real
property subject of reserva viudal insofar as it is ap-
plied to reserva troncal stays despite the abolition of
reserva viudal in the New Civil Code. This rule is con-
sistent with the rule provided In the second para-
graph of Section 51 of P.D. 1529, which provides that:
The act of registration shall be the operative act to
convey or affect the land insofar as third persons are
concerned x x x.’” (italics supplied). (Sumaya vs. IAC,
201 SCRA 178, pp. 188-189)
Sumaya, however, is silent on two points: 1) within what

period must the annotation be made; and 2) whether the other
requirements of the old viudal also remain.
XI. Extinguishment
The reserva troncal is extinguished by:
1. The death of the reservista,
2. The death of all the reservatarios; [NOTE: If one
subscribes to the view that the reservista can be-
long to the line of origin (cf. p. 373, supra), this
will not ipso facto extinguish the reserva because
the reservista, could have a child subequently,
who would be a reservatario.]
3. Renunciation by all the reservatarios, provided
that no other reservatario is bom subsequently;
4. Total fortuitous loss of the reserved property;
5. Confusion or merger of rights, as when the reser-
vatarios acquire the reservistds right by a con-
tract inter vivos\
6. Prescription or adverse possession.
(For a fuller treatment of the reserva troncal, vide author’s

monograph: The Reserva Troncal: Prospect and Retrospect, Vol.
58, Fourth Quarter [December 1983], Philippine Law Journal,
pp. 387-419).
ARTICLE 904. The testator cannot deprive his com-
pulsory heirs of their legitime, except in cases expressly
specified by law.
Neither can he impose upon the same any burden, en-
cumbrance, condition, or substitution of any kind what-
soever. (813a)
I. This article reiterates the principle—already laid down
in Art. 886, supra, that the legitime is not within the testator's
control. It passes to the compulsory heirs by strict operation of
law.
II. Testator Devoid of Power to deprive compulsory heirs
of legitime:
It is the law, not the testator, which determines the
transmission of the legitimes. Consequently, it is not within the
testator’s power to deprive the compulsory heirs of their le-
gitimes.
1. Exception—The only instance in which the law al-
lows the testator to deprive the compulsory heirs
of their legitimes is disinheritance (Arts. 915-923),
the grounds for which are set forth in Arts. 919-
921.
III. Testator devoid of power to impose burdens on le-
gitime:
This rule, first enunciated in Art. 872 and reiterated in the
second paragraph of this article, is but a consequence of the
principle that the legitime passes by strict operation of law.
1. Qualifications—In at least two instances, the law
grants the testator some power over the legitime:
a) Art. 1080, par. 2:

"A parent who, in the Interest of his or her fam-
ily, desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of
the right granted him in this article, by ordering that
the legitime of the other children to whom the prop-
erty is not assigned, be paid in cash.”
b) Art. 1083, par. 1:
“Every co-heir has a right to demand the divi-
sion of the estate unless the testator should have ex-
pressly forbidden its partition, in which case the pe-
riod of indivlsion shall not exceed twenty years as
provided in article 494. This power of the testator to
prohibit division applies to the legitime.”
2. Restrictions on the legitime imposed by law:

a) Art. 159, Family Code:
“Art. 159. The family home shall continue de-

spite the death of one or both spouses or of the un-
married head of the family for a period of ten years or
for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply re-
gardless of whoever owns the property or constituted
the family home.”
b) The reserva troncal.
ARTICLE 905. Every renunciation or compromise as
regards a future legitime between the person owing it and
his compulsory heirs is void, and the latter may claim the
same upon the death of the former; but they must bring to
collation whatever they may have received by virtue of the
renunciation or compromise. (816)
I. Reason for the rule—Before the predecessor’s death,

the heir’s right is simply inchoate (Vide Art. 777).
II. Duty to Collate—Any property which the compulsory

heir may have gratuitously received from his predecessor by
virtue of the renunciation or compromise will be considered an
advance on his legitime and must be duly credited.
III. Scope of prohibition—As worded, this article applies
only to transactions of compromise or renunciation between the
predecessor and the prospective compulsory heir.
Is a transaction between the prospective compulsory heir
and another prospective compulsory heir, or between a pro-
spective compulsory heir and a stranger, interdicted? Yes, but
by another article—Art. 1347, par. 2:
“Art. 1347. xxx No contract may be entered into
upon future inheritance except in cases expressly au-
thorized by law. xxx"
ARTICLE 906. Any compulsory heir to whom the tes-

tator has left by any title less than the legitime belonging
to him may demand that the same be fully satisfied. (815)
I. This rule applies only to transmissions by gratuitous ti-
tle.
II. This is the well-known right of completion of legitime
(actio ad supplendam legitimam).
III. Cross-references—
1. Art. 855 (supra)—If the title by which the testator
transmitted property is intestate succession.
2. Arts. 909 and 910 (infra).
IV. The principle underlying this article is that anything

that a compulsory heir receives by gratuitous title from the
predecessor is considered an advance on the legitime and is
deducted therefrom.
Exceptions:
1. Art. 1062—If the predecessor gave the compul-
sory heir a donation inter vivos and provided that
it was not to be charged against the legitime;
Arts. 907-908 TESTAIMENTARY SUCCESSION 425
2. Art. 1063—Testamentary dispositions made by

the predecessor to the compulsory heir, unless
the testator provides that it should be considered
part of the legitime.
ARTICLE 907. Testamentary dispositions that impair

or diminish the legitime of the compulsory heirs shall be
reduced on petition of the same, insofar as they may be in-
officious or excessive. (817)
I. This article is based on the same principle expressed in

Art. 904. If the testamentary dispositions exceed the disposable
portion, the compulsory heirs may demand their reduction to
the extent that the legitimes have been impaired. To allow the
testator to make testamentary dispositions that impair the le-
gitime would in effect allow him to deprive the compulsory heirs
of part of their legitime—and this is not allowed by Art. 904.
II. Correlation—This article should be read together with
Art. 911 (infra).
ARTICLE 908. To determine the legitime, the value

of the property left at the death of the testator shall be
considered, deducting all debts and charges, which shall
not include those imposed in the will.
To the net value of the hereditary estate, shall be
added the value of all donations by the testator that are
subject to collation, at the time he made them. (818a)
A. The Net Hereditary Estate: Articles 888-903 set forth

the legitimes of the compulsory heirs, either inheriting alone or
in various combinations. Those articles gave the legitimes in
the form of fractions, or proportions, of the decedent’s estate.
This article makes possible the computation of the absolute
amounts of the legitimes by laying down the manner of com-
puting the net value of the estate (the net hereditary estate), on
which the proportions are based.
II. Manner of Computing the Hereditary Estate:

The process has three steps:
1. Inventory of all the existing assets—
a) This will involve an appraisal/valuation of
these existing assets at the time of the dece-
dent’s death.
b) These assets include only those properties
that survive the decedent; le., those which
are not extinguished by his death. (Vide Arts.
774 and 777, supra).
c) The value determined by this inventory will

constitute the gross assets.
2. Deducting unpaid debts and charges—

a) All unpaid obligations of the decedent should
be deducted from the gross assets.
b) Only those obligations with monetary value
which are not extinguished by death are con-
sidered here. Thus, those obligations which
are purely personal (intuitu personae) are not
taken into account.
c) The difference between the gross assets and
the unpaid obligations will be the available
assets.
3. Adding the value of donations inter vivos—

a) To the available assets should be added all the
inter vivos donations made by the decedent.
b) The donations inter vivos shall be valued as of

the time they were respectively made. Any in-
crease or decrease in value from the time they
were made to the time of the decedent’s death
shall be for the donee’s account, since dona-
tion transfers ownership to the donee.
c) The sum of the available assets and all the

donations inter vivos is the net hereditary
estate.
Vizconde vs. Court of Appeals

286 SCRA 217 (1998)
FRANCISCO, J.:
Petitioner Lauro G. Vizconde and his wife Estrel-

lita Nicolas-Vizconde had two children, viz., Carmela
and Jennifer. Petitioner’s wife, Estrellita, is one of the
five siblings of spouses Rafael Nicolas and Salud Gon-
zales-Nicolas. The other children of Rafael and Salud
are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas
de Leon, and Ricardo Nicolas, an incompetent. Anto-
nio predeceased his parents and is now survived by
his widow, Zenaida, and their four children.
On May 22, 1979, Estrellita purchased from
Rafael a parcel of land with an area of 10,110 sq. m.
located at Valenzuela, Bulacan (hereafter Valenzuela
property) covered by TCT No. (T-36734) 13206 for One
Hundred Thirty Five Thousand Pesos (P135,000.00),
evidenced by a “Lubusang Bilihan ng Bahagi ng Lupa
na Nasasakupan ng Titulo TCT No. T-36734." In view
thereof, TCT No. V-554 covering the Valenzuela prop-
erty was issued to Estrellita. On March 30, 1990,
Estrellita sold the Valenzuela property to Amelia Lim
and Maria Natividad Balictar Chiu for Three Million,
Four Hundred Five Thousand, Six Hundred Twelve
Pesos (P3,405,612.00). In June of the same year,
Estrellita bought from Premier Homes, Inc., a parcel
of land with improvements situated at Vinzon St., BF
Homes, Paranaque (hereafter Paranaque property) us-
ing a portion of the proceeds of sale of the Valenzuela
property. The remaining amount of the proceeds was
used in buying a car while the balance was deposited
in a bank.
The following year an unfortunate event in peti-
tioner’s life occurred. Estrellita and her two daugh-
ters, Carmela and Jennifer, were killed on June 30,
1991, an incident popularly known as the "Vizconde
Massacre." The findings of the investigation con-

ducted by the NBI reveal that Estrellita died ahead of
her daughters. Accordingly, Carmela, Jennifer and
herein petitioner succeeded Estrellita and, with the
subsequent death of Carmela and Jennifer, petitioner
was left as the sole heir of his daughters. Neverthe-
less, petitioner entered into an “Extra-Judicial Settle-
ment of the Estate of Deceased Estrellita Nicolas-
Vizconde With Waiver of Shares, with Rafael and Sa-
lud, Estrellita’s parents. The extrajudicial settlement
provided for the division of the properties of Estrellita
and her two daughters between petitioner and
spouses Rafael and Salud. The properties include
bank deposits, a car and the Paranaque property. The
total value of the deposits deducting the funeral and
other related expenses in the burial of Estrellita,
Carmela and Jennifer, amounts to Three Million Pesos
(P3,000,000.00). The settlement gave fifty percent
(50%) of the total amount of the bank deposits of
Estrellita and her daughters to Rafael, except Savings
Account No. 104-111211-0 under the name of Jenni-
fer which involves a token amount. The other fifty
percent (50%) was allotted to petitioner. The
Paranaque property and the car were also given to pe-
titioner with Rafael and Salud waiving all their
“claims, rights, ownership and participation as heirs” in
the said properties.
On November 18, 1992, Rafael died. To settle
Rafael’s estate, Teresita instituted an intestate estate
proceedings docketed as Sp. Proc. No. C-1679, with
Branch 120 of the Regional Trial Court (RTC) of Ca-
loocan City listing as heirs Salud, Ramon, Ricardo,
and the wife (Zenaida) and children of Antonio, xxx
xxx xxx xxx
The core issue hinges on the validity of the pro-
bate court's Order, which respondent Court of Ap-
peals sustained, nullifying the transfer of the
Valenzuela property from Rafael to Estrellita and de-
claring the Paranaque property as subject to collation.
The appeal is well taken.
Basic principles of collation need to be empha-

sized at the outset. Article 1061 of the Civil Code
speaks of collation. It states:
“Art. 1061. Every compulsory heir, who
succeeds with other compulsory heirs, must
bring into the mass of the estate any property or
right which he may have received from the dece-
dent, during the lifetime of the latter, by way of
donation, or any other gratuitous title, in order
that it may be computed in the determination of
the legitime of each heir, and in the account of
the partition.”
Collation is the act by virtue of which descen-

dants or other forced heirs who intervene in the divi-
sion of the inheritance of an ascendant bring into the
common mass, the property which they received from
him, so that the division may be made according to
law and the will of the testator. Collation is only re-
quired of compulsory heirs succeeding with other
compulsory heirs and involves property or rights re-
ceived by donation or gratuitous title during the life-
time of the decedent. The purpose is to attain equality
among the compulsory heirs in so far as possible for it
is presumed that the intention of the testator or
predecessor in interest in making a donation or gra-
tuitous transfer to a forced heir is to give him some-
thing in advance on account of his share in the es-
tate, and that the predecessor’s will is to treat all his
heirs equally, in the absence of any expression to the
contrary. Collation does not impose any lien on the
property or the subject matter of collationable dona-
tion. What is brought to collation is not the property
donated itself, but rather the value of such property
at the time it was donated, the rationale being that
the donation is a real alienation which conveys own-
ership upon its acceptance, hence any increase in
value or any deterioration or loss thereof is for the ac-
count of the heir or donee.
The attendant facts herein do not make a case of
collation. We find that the probate court, as well as
respondent Court of Appeals, committed reversible er-

rors.
First: The probate court erred in ordering the
inclusion of petitioner in the intestate estate proceed-
ing. Petitioner, a son-in-law of Rafael, is not one of
Rafael’s compulsory heirs. Article 887 of the Civil
Code is clear on this point:
xxx xxx xxx
Second: As a rule, the probate court may pass upon
and determine the title or ownership of a property which
may or may not be included in the estate proceedings.
Such determination is provisional in character and is sub-
ject to final decision in a separate action to resolve title. In
the case at bench, however, we note that the probate court
went beyond the scope of its jurisdiction when it proceeded
to determine the validity of the sale of the Valenzuela prop-
erty between Rafael and Estrellita and ruled that the trans-
fer of the subject property between the concerned parties
was gratuitous, xxx
xxx xxx xxx
Third: The order of the probate court subjecting
the Paranaque property to collation is premature. Re-
cords indicate that the intestate estate proceedings is
still in its initiatory stage. We find nothing herein to
indicate that the legitime of any of Rafael’s heirs has
been impaired to warrant collation, xxx
xxx xxx xxx
Fourth: Even on the assumption that collation
is appropriate in this case the probate court, nonethe-
less, made a reversible error in ordering collation of
the Paranaque property. We note that what was
transferred to Estrellita, by way of deed of sale, is the
Valenzuela property. The Paranaque property which
Estrellita acquired by using the proceeds of the sale of
the Valenzuela property does not become collationable
simply by reason thereof. Indeed, collation of the
Paranaque property has no statutory basis. The order
of the probate court presupposes that the Paranaque
property was gratuitously conveyed by Rafael to
Estrellita. Records indicate, however, that the
Paranaque property was conveyed for and in consid-

eration of P900.000.00, by Premier Homes, Inc., to
Estrellita, Rafael, the decedent, has no participation
therein, and petitioner who inherited and is now the
present owner of the Paranaque property is not one of
Rafael’s heirs. Thus, the probate court’s order of colla-
tion against petitioner is unwarranted for the obliga-
tion to collate is lodged with Estrellita, the heir, and
not to herein petitioner who does not have any inter-
est in Rafael’s estate. As it stands, collation of the
Paranaque property is improper for, to repeat, colla-
tion covers only properties gratuitously given by the
decedent during his lifetime to his compulsory heirs
which fact does not obtain anent the transfer of the
Paranaque property. Moreover, Rafael, in a public in-
strument, voluntarily and willfully waived any
“claims, rights, ownership and participation as heir"
in the Paranaque property.
xxx xxx xxx
ARTICLE 909. Donations given to children shall be

charged to their legitime.
Donations made to strangers shall be charged to that
part of the estate of which the testator could have disposed
by his last will.
Insofar as they may be inofficious or may exceed the
disposable portion, they shall be reduced according to the
rules established by this Code. (819a)
ARTICLE 910. Donations which an illegitimate child

may have received during the lifetime of his father or
mother, shall be charged to his legitime.
Should they exceed the portion that can be freely dis-
posed of, they shall be reduced in the manner prescribed by
this Code. (847a)
I. Donations inter vivos to compulsory heirs—Donations

inter vivos to a compulsory heir shall be imputed to his le-
gitime, Le., considered as an advance on his legitime.
A. Coverage of rule—This rule applies to all compulsory

heirs. [Note that these two articles omit—inadver-
tently—ascendants who succeed as compulsory
heirs. This rule applies to them as well. For obvious
reasons, this rule has no application to a surviving
spouse, except in cases of donations propter nuptias
and moderate gifts under Article 87 [Family Code]
Exception—This rule of imputation to the legitime will not
apply if the donor provided otherwise [Vide Art. 1062), in which
case the donation will be imputed to the disposable portion of
the estate.
II. Donations inter vivos to strangers—

A. A stranger is anyone who does not succeed as a
compulsory heir.
B. Donations inter vivos to strangers are necessarily
imputed to the disposable portion.
III. This matter is more fully—and more confusingly (be-

cause of the multiple senses of the word collation)—treated in
Chapter 4, Section 5 (Arts. 1061-1077), infra.
ARTICLE 911. After the legitime has been deter-

mined in accordance with the three preceding articles, the
reduction shall be made as follows:
(1) Donations shall be respected as long as the le-
gitime can be covered, reducing or annulling, if necessary,
the devises or legacies made in the will;
(2) The reduction of the devises or legacies shall be
pro rata, without any distinction whatever.
If the testator has directed that a certain devise or leg-
acy be paid in preference to others, it shall not suffer any
reduction until the latter have been applied in full to the
payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may choose
between complying with the testamentary provision and

delivering to the devisee or legatee the part of the inheri-
tance of which the testator could freely dispose. (820a)
I. This provision implements the principle laid down in

Arts. 872, 886, and 904—the inviolability of the legitime. Thus
if the legitimes are impaired, the gratuitous dispositions of the
testator (either inter vivos or mortis causa) have to be set aside
or reduced as may be required to cover the legitimes.
II. Method of reduction: There is an order of priorities to
be observed in the reduction of the testator’s gratuitous dispo-
sitions, thus—
A. First, reduce pro rata the non-preferred legacies and
devises (Art. 911 [2]), and the testamentary disposi-
tions (to heirs) (Art. 907). Among these legacies, de-
vises, and testamentary dispositions there is no
preference.
B. Second, reduce pro rata the preferred legacies and
devises. (Art. 911, last par.)
C. Third, reduce the donations inter vivos according to
the inverse order of their dates [i.e., the oldest is the
most preferred) (Art. 773).
These reductions shall be to the extent required to com-

plete the legitimes, even if in the process the disposition is re-
duced to nothing.
An apparent conflict exists between this article and Art.
950, regarding the order of preference among legacies and de-
vises, should reductions be necessary. This matter is treated
under Art. 950, infra
HI. Devises/legacies of usufruct/life annuities/pensions

(Par. [3]):
The following principles should be borne in mind:
A. If, upon being capitalized according to actuarial
standards, the value of the grant exceeds the free
portion (i.e., it impairs the legitime), it has to be re-
duced, because the legitime cannot be impaired.

B. The testator can impose no usufruct or any other
encumbrance on the part that passes as legitime.
C. Subject to the two rules just stated, the compulsory
heirs may elect between ceding to the devi-
see/legatee the free portion (or the proportional part
thereof corresponding to the said legacy/devise, in
case there are other dispositions), and complying
with the terms of the usufruct or life annuity or pen-
sion.
An example of the application of this paragraph is Dolor v.

Bishop of Jaro, 68 Phil. 727.
ARTICLE 912. If the devise subject to reduction

should consist of real property, which cannot be conven-
iently divided, it shall go to the devisee if the reduction
does not absorb one-half of its value; and in a contrary
case, to the compulsory heirs; but the former and the latter
shall reimburse each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may retain
the entire property, provided its value does not exceed that
of the disposable portion and of the share pertaining to him
as legitime. (821)
I. This covers cases where (1) the devise has to be re-

duced and (2) the thing given as a devise is indivisible.
II. Rules:
1. If the extent of reduction is less than 1 /2 of the
value of the thing—it should be given to the devi-
see.
2. If extent of reduction is 112 or more of the value of
the thing—it should be given to the compulsory
heir.
In either case, there should be pecuniary reimbursement

to the party who did not get his physical portion of the thing
devised.
ARTICLE 913. If the heirs or devisees do not choose

to avail themselves of the right granted by the preceding
article, any heir or devisee who did not have such right may
exercise it; should the latter not make use of it, the prop-
erty shall be sold at public auction at the instance of any
one of the interested parties. (822)
This article applies if neither party (the compulsory heir/s

and the devisee) elects to exercise his right under Art. 912.
How the thing devised should be disposed of:

1) any other heir or
devisee, who elects to do so, may
acquire the thing and pay the parties (the compul-
sory heir and the devisee in question) their respec-
tive shares in money;
2) if no heir or devisee elects to acquire it, it shall be
sold at public auction and the net proceeds accord-
ingly divided between the parties concerned.
Note: This rule of constructive partition is similar to that

in co-ownership (Art. 498) and in partition of the decedent’s
estate (Art. 1086), except that, in these two latter cases, the
acquisition by one of the co-owners or co-heirs can be done
only if all the co-owners or co-heirs agree to such acquisition.
ARTICLE 914. The testator may devise and bequeath

the free portion as he may deem fit. (n)
This article is simply a restatementof Art. 842 (supra),

and is therefore unnecessary.
SECTION 6.—DISINHERITANCE
ARTICLE 915. A compulsory heir may, in conse-
quence of disinheritance, be deprived of his legitime, for
causes expressly stated by law. (848a)
I. Art. 904 sets forth the rule that the testator cannot de-
prive the compulsory heirs of the legitime (Vide discussion un-
der Art. 904). The sole exception to this rule is disinheritance.
Thus, disinheritance is the only instance in which the testator
may deprive his compulsory heirs of their legitime.
II. Requisites of a valid disinheritance:
1. it must be made in a will (Article 916);
2. it must be for a cause specified by law (Article 916
in relation to Articles 919-921);
3. the will must specify the cause (Articles 916 and
918);
4. it must be unconditional (6 Manresa, op. cit., pp.
543-544, citing Ley 3.a, tit. 7.0, Partida 6. a);
5. it must be total (Ibid.);

6. the cause must be true (Article 918);
7. if the truth of the cause is denied, it must be
proved by the proponent (Article 917).
Note: The strictness of the requisites indicates the policy
of the law. It regards disinheritance with disfavor and will grant
it only with reluctance, because disinheritance results in depri-
vation of legitime.
III. Effect of disinheritance—The effect of disinheritance
is not just deprivation of the legitime, but total exclusion of the
disinherited heir from the inheritance. Thus, the disinherited
heir forfeits:
1. his legitime,
2. his intestate portion, if any, and
3. any testamentary disposition made in a prior will
of the disinheriting testator.
ARTICLE 916. Disinheritance can be effected only
through a will wherein the legal cause therefor shall be
specified. (849)
I. Made in a will—The first clause of this article cons-

titutes the first requisite of disinheritance—that it must be
made in a will.
The will, obviously, must be formally valid and must be
admitted to probate.
II. Legal cause—

The second clause is the second requisite.
The causes are specified in Articles 919 (for descendants),
920 (for ascendants), and 921 (for the surviving spouse).
ARTICLE 917. The burden of proving the truth of the

cause for disinheritance shall rest upon the other heirs of
the testator, if the disinherited heir should deny it. (850)
This article gives the 7th requisite (supra) of disinheri-

tance.
It must be noted that truth here is not presumed; it must
be proved. All the disinherited heir need do is deny the cause
and the burden is thrown upon those who would uphold the
disinheritance.
ARTICLE 918. Disinheritance without a specification

of the cause, or for a cause the truth of which, if contra-
dicted, is not proved, or which is not one of those set forth
in this Code, shall annul the institution of heirs insofar as
it may prejudice the person disinherited; but the devises
and legacies and other testamentary dispositions shall be
valid to such extent as will not impair the legitime. (851a)
I. This article sets forth requisites 3 and 6 (supra) of dis-

inheritance.
II. Ineffective disinheritance
If the disinheritance lacks one or other of the requisites
mentioned in this article, the heir in question gets his legitime.
As to whether he will also get any part of the intestate portion
or not, this depends on whether the testator gave away the free
portion through testamentary dispositions. If he did, these dis-
positions are valid and the compulsory heir improperly disin-

herited gets only his legitime. If the testator did not, the com-
pulsory heir will be entitled to his corresponding share of the
free portion as well.
Note the difference between the effect of ineffective disin-
heritance and that of preterition. (Article 854).
ARTICLE 919. The following shall be sufficient causes
for the disinheritance of children and descendants, legiti-
mate as well as illegitimate:
(1) When a child or descendant has been found guilty
of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testa-
tor of a crime for which the law prescribes imprisonment
for six years or more, if the accusation has been found
groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, in-
timidation, or undue influence causes the testator to make
a will or to change one already made;
(5) A refusal without justifiable cause to support the
parent or ascendant who disinherits such child or descen-
dant;
(6) Maltreatment of the testator by word or deed, by
the child or descendant;
(7) When a child or descendant leads a dishonorable
or disgraceful life;
(8) Conviction of a crime which carries with it the
penalty of civil interdiction. (756, 853, 674a)
Causes for disinheritance of children or descendants
(whether legitimate or illegitimate)—enumeration is exclusive:
1. Par. 1—a) The word attempt here is used non-
technically and should not be construed to limit
the provision to the attempted stage of the felony.

All stages of commission are included—whether
attempted, frustrated, or consummated.
b) The felony, obviously, must be an intentional
one.
c) Final conviction is required.
Quaerendum. Must the disinheritance be subsequent to

the conviction, or may it precede conviction?
2. Par. 2—a) The word accused here is used generi-
cally, and will include filing of the complaint before
the prosecutor, or presenting incriminating evi-
dence against the testator, or even suppressing ex-
culpatory evidence.
b) The crime of which the testator is accused
must carry a penalty of at least six years’ im-
prisonment (Note: The law’s phraseology is in-
felicitous: it should have specified instead:
more than six years imprisonment, because six
years still falls within prision correctional. One
day beyond that places it within the next
higher penalty—prision mayor. What, for in-
stance, if the penalty prescribed is prision cor-
rectional? Does that fall within the contempla-
tion of this paragraph?)
c) The testator must be acquitted.
d) The accusation must be found to be ground-
less, i.e. the judgment of acquittal must state
either that no crime was committed or that
the accused did not commit the crime. An ac-
quittal on reasonable doubt will not be a
ground for disinheritance.
3. Par. 3—a) Final conviction is required.
b) The same query raised in 1, supra, may be
raised here.
4. Par. 4—This is self-explanatory.
5. Par. 5—a) There must have been a need and a

demand for support (Vide Art. 203, Family Code).
b) The demand must have been unjustifiably re-
fused. Refusal may be justified, e.g., if the ob-
ligor does not have enough resources for all
whom he is obliged to support. The ascen-
dants are only third in the hierarchy of prefer-
ence among claimants of support (Art. 200,
par. 3, Family Code).
6. Par. 6—a) This will include a wide range of mis-
deeds, but it is required that the act of verbal or
physical assault be of a serious nature.
b) No conviction is required; in fact, it is not even
required that any criminal case be filed. Con-
sequently, a physical assault that would not
fall under par. 1, supra, could fall under this
paragraph.
7. Par. 7—a) The operative word here is “lead.”
There must be a habituality to the conduct to
make it fall under this paragraph.
b) The dishonorable or disgraceful conduct or
pattern of behavior need not be sexual in na-
ture, although it may often be that. Surely, a
child or descendant whose livelihood is drug-
pushing or smuggling is living a dishonorable
and disgraceful life (assuming our society still
recognizes some civilized values).
8. Par. 8—a) Final conviction is required.
b) The accessory penalty of civil interdiction is
imposed with the principal penalties of death,
reclusion perpetua, and reclusion temporal. (Ar-
ticles 40-41, Revised Penal Code).
c) The same query raised in 1, supra, may be
raised here.

for the disinheritance of parents or ascendants, whether
legitimate or illegitimate:
(1) When the parents have abandoned their children
or induced their daughters to live a corrupt or immoral life,
or attempted against their virtue;
(2) When the parent or ascendant has been convicted
of an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the
testator of a crime for which the law prescribes imprison-
ment for six years or more, if the accusation has been
found to be false;
(4) When the parent or ascendant has been convicted
of adultery or concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator to
make a will or change one already made;
(6) The loss of parental authority for causes specified
in this Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life
of the other, unless there has been a reconciliation between
them. (756, 854, 674a)
Causes for the disinheritance of parents or ascendants

(whether legitimate or illegitimate)—enumeration is exclusive:
A. Pars. 2, 3, 4, 5, and 7 are also enumerated under Ar-
ticle 919 and have already been discussed there.
Note the variation in the wording of par. 3—The word here

used is false, whereas par. 2 of Art. 919 uses groundless. Par. 2
of Art. 921 also uses false. The change is not substantive, but
merely stylistic. [The Spanish Code uses the word calumniosa].
1. Par.1—This paragraph encompasses three

grounds:
a) Abandonment—This is not restricted to those
instances of abandonment penalized by law
(Articles 276-277, Revised Penal Code; Article
59, PD 603), but includes all conduct cons-
tituting a repeated or total refusal or failure to
care for the child. The case of Ch.ua v. Ca-
bangbang, T7 SCRA 791, although involving
the issue of custody, gives fairly well-defined
criteria for determining whether the child has
been abandoned:
“To our mind, mere acquiescence—without
more—is not sufficient to constitute abandonment.
But the record yields a host of circumstances which,
in their totality, unmistakably betray the petitioner’s
settled purpose and intention to completely forego all
parental responsibilities and forever relinquish all pa-
rental claim in respect to the child.
xxx xxx xxx
“Indeed, the petitioner’s attitude, to our mind,
does nothing but confirm her intention to abandon
the child—from the very outset when she allowed Vil-
lareal to give her away to the Cabangbangs. It must
be noted that the abandonment took place when the
child, barely four months old, was at the most fragile
stage of life and needed the utmost care and solici-
tude of her mother. And for five long years thereafter,
she did not once move to recover the child. She con-
tinuously shunned the natural and legal obligations
which she owed to the child; completely withheld her
presence, her love, her care, and the opportunity to dis-
play maternal affection; and totally denied her support
and maintenance. Her silence and inaction have been
prolonged to such a point that her abandonment of
the child and her total relinquishment of parental
claim over her, can and should be inferred as a mat-
ter of law.” (at pp. 798-799) (Underscoring supplied).
Quaerendum. Will giving consent to adoption of child

constitute abandonment?
b) Inducement to live a corrupt or immoral life—
This ground is basically the same as that
given in Art. 231 [2] of the Family Code as a
ground for suspension or deprivation of pa-
rental authority.
The terms of this provision seem to apply only to daugh-
ters.
Two questions may be raised:
1) Should the provision also be made to apply

to other female descendants?
Tolentino’s comments are persuasive:
“Although the law mentions only ‘daughters', we

believe that this should be construed to mean all fe-
male descendants. For instance, X has two grand-
daughters, who are children of a predeceased child.
He leads one of them to a life of prostitution. Cer-
tainly, he has committed such a reprehensible act as
would justify his disinheritance by any of those
granddaughters.” (Tolentino, Civil Code of the Philip-
pines, 1992 ed., Vol. Ill, p. 366)
2) What about sons and other male descen-

dants?
It was a more innocent world when the present Code was
drafted in the late forties. Now, sexual offenses are committed,
apparently with equal frequency, against both males and fe-
males. Gender equality cuts both ways.
Shouldn’t sons and other male descendants be covered as
well by this provision?
Note that Art. 231, pars. (2) and (4) of the Family Code
make no distinction.
c) Attempt against virtue—No conviction is here
required.
2. Par. 6—a) Obviously, not all causes for loss of

parental authority are grounds for disinheritance;
for instance, attainment of the age of majority.
Only those causes which involve culpability on
the part of the parents will provide grounds for
disinheritance, viz:
1) judicial deprivation of parental authority on
the ground of sexual abuse (Article 232, Fam-
ily Code);
2) loss of parental authority as a result of judi-
cial declaration of abandonment of the child
(Article 229[3]);
3) judicial deprivation of parental authority on
the grounds of:
a) exccessively harsh or cruel treatment of
the child;
b) giving the child corrupting orders, coun-
sel, or example;
c) compelling the child to beg;
or
d) subjecting thechild or allowing
him to be
subjected to acts of lasciviousness (Article
231, Family Code).
Par. 8—a) No conviction is required here.
b) The meaning of “attempt” is the same as
its meaning in Article 919(1), supra. Rec-
onciliation between the parents removes
the right of a child or descendant to dis-
inherit and rescinds a disinheritance al-
ready made. No hay que ser mas papista
que el papa.
for disinheriting a spouse:
1) When the spouse has been convicted of an attempt
against the life of the testator, his or her descendants, or
ascendants;
(2) When the spouse has accused the testator of a

crime for which the law prescribes imprisonment for six
years or more, and the accusation has been found to be
false;
(3) When the spouse by fraud, violence, intimidation
or undue influence causes the testator to make a will or to
change one already made;
(4) When the spouse has given cause for legal separa-
tion;
(5) When the spouse has given grounds for the loss of
parental authority;
(6) Unjustifiable refusal to support the children or
the other spouse. (756, 855, 674a)
Causes for the disinheritance of a spouse—enumeration is
exclusive:
Pars. 1, 2, 3, and 6 are also enumerated under Article 919
and are discussed thereunder.
1. Par. 4—a) A decree of legal separation is not re-
quired.
b) The causes for legal separation, of which there
are ten, are given in Article 55 of the Family
Code, to wit:
“Art. 55. A petition for legal separation may be
filed on any of the following grounds:
(1) Repeated physical violence or grossly abu-
sive conduct directed against the petitioner, a com-
mon child, or a child of the petitioner:
(2) Physical violence or moral pressure to com-
pel the petitioner to change religious or political af-
filiation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, to
engage in prostitution, or connivance in such corruption
or inducement;
(4) Final judgment sentencing the respondent

to imprisonment of more than six years, even if par-
doned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subse-

quent bigamous marriage, whether in the Philippines
or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life
of the petitioner, or;
(10) Abandonment of the petitioner by res-
pondent without justifiable cause for more than one
year.
For purposes of this Article, the term ‘child’ shall
include a child by nature or by adoption.”
2. Par. 5—Distinguished from Art. 920, par. 6—

Whereas in Art. 920, actual loss of parental authority is re-
quired, here giving grounds therefor is sufficient.
ARTICLE 922. A subsequent reconciliation between

the offender and the offended person deprives the latter of
the right to disinherit, and renders ineffectual any disin-
heritance that may have been made. (856)
I. Meaning of reconciliation—either an express pardon ex-

tended by the testator to the offending heir or unequivocal con-
duct of the testator towards the offending heir which reveals
the testator’s intent to forgive the offense.
A. If express pardon—A general pardon extended by
the testator on his deathbed to all who have of-
fended him will not suffice; it must be a pardon ex-
pressly and concretely extended to the offender, who
accepts it. (6 Manresa, op. cit., p. 567)
B. If conduct—The intent to forgive must be clear. This
is ultimately “a question of fact (which) will be re-
solved, in case of controversy, by the courts.” (Ibid.)
II. Effect of reconciliation:

A. If it occurs before disinheritance is made—Right to
disinherit is extinguished.
B. If it occurs after the disinheritance is made—Dis-
inheritance is set aside.
Effects of setting aside of the disinheritance:
a) The disinherited heir is restored to his legitime.
b) If the disinheriting will did not dispose of the dis-
posable portion, the disinherited heir is entitled to
his proportionate share (in intestacy) if any, of the
disposable portion.
c) If the disinheriting will or any subsequent will
disposed of the disposable portion (or any part
thereof) in favor of testamentary heirs, legatees, or
devisees, such dispositions remain valid.
III. Article 922 in relation to Article 1033—Vide dis-
cussion under Article 1033 (infra).
ARTICLE 923. The children and descendants of the

person disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with respect to the
legitime; but the disinherited parent shall not have the usu-
fruct or administration of the property which constitutes
the legitime. (857)
I. Right of representation in disinheritance—The right of
representation is granted only to descendants of disinherited
descendants. This is the rule laid down in Article 972, par. 1, to
wit:
“Art. 972. The right of representation takes
place in the direct descending line, but never in the
ascending, xxx”
Thus, a disinherited child will be represented by his chil-

dren or other descendants. However, if the heir disinherited is a
parent/ascendant or spouse, the children or descendants of the

disinherited heir do not have any right of representation. Thus,
this article is carelessly worded.
The wording of Art. 1035 (representation in case of unwor-
thiness) is clearer. (Vide infra).
II. Extent of representation—The representative takes the
place of the disinherited heir not only with respect to the le-
gitime, but also to any intestate portion that the disinherited
heir would have inherited.
Representation, therefore, occurs in compulsory and intes-
tate succession, but not in testamentary succession [Vide Arti-
cle 856, supra)
III. With respect to the last clause of the article, Articles
225 and 226 of the Family Code provide:
“Art. 225. The father and the mother shall jointly exer-
cise legal guardianship over the property of their unemanci-
pated common child without the necessity of a court appoint-
ment. In case of disagreement, the father’s decision shall pre-
vail, unless there is a judicial order to the contrary.
Where the market value of the property or the annual in-
come of the child exceeds P50,000, the parent concerned shall
be required to furnish a bond in such amount as the court may
determine, but not less than ten per centum (10%) of the value
of the property or annual income, to guarantee the performance
of the obligations prescribed for general guardians.
A verified petition for approval of the bond shall be filed in
the proper court of the place where the child resides, or, if the
child resides in a foreign country, in the proper court of the
place where the property or any part thereof is situated.
The petition shall be docketed as a summary special pro-
ceeding in which all incidents and issues regarding the per-
formance of the obligations referred to in the second paragraph
of this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely sup-
pletory except when the child is under substitute parental au-
thority, or the guardian is a stranger, or a parent has remar-

ried, in which case the ordinary rules on guardianship shall
apply.” (Family Code)
“Art. 226. The property of the unemancipated child
earned or acquired with his work or industry or by onerous or
gratuituous title shall belong to the child in ownership and
shall be devoted exclusively to the latter’s support and educa-
tion, unless the title or transfer provides otherwise.
The right of the parents over the fruits and income of the
child’s property shall be limited primarily to the child’s support
and secondarily to the collective daily needs of the family.”
(Family Code)
SECTION 7.—LEGACIES AND DEVISES
ARTICLE 924. All things and rights which are within

the commerce of man may be bequeathed or devised. (865a)
I. Definition of legacies and devises—Legacies and de-

vises are codally defined (by indirection) in Article 782, par. 2.
A. A more accurate definition of the terms can be found
either in Article 660 (Spanish Code [Vide comments
under Article 782]) or in Castan:
1) Article 660 (Spanish Code)
Legacy—testamentary disposition of personal
property by particular title
Devise—testamentary disposition of real property
by particular title.
2) Castan:
Legacy—testamentary disposition of specific or ge-
neric personal property
Devise—testamentary disposition of specific or ge-
neric real property.
B. It is important, in defining a legacy or a devise, to
distinguish it from a testamentary disposition to an
heir. (Vide comments under Article 782) because of
the effects of preterition. Essentially, the difference

is that an heir receives an aliquot or fractional part
of the inheritance, whereas a legatee or devisee re-
ceives specific or generic personalty or realty, re-
spectively.
II. What can be devised or bequeathed: anything within
the commerce of man. It is not required that the thing devised
or bequeathed belong to the testator.
III. Limitations on legacy or devise—It should not impair
the legitime.
ARTICLE 925. A testator may charge with legacies
and devises not only his compulsory heirs but also the lega-
tees and devisees.
The latter shall be liable for the charge only to the ex-
tent of the value of the legacy or the devise received by
them. The compulsory heirs shall not be liable for the
charge beyond the amount of the free portion given them.
(858a)
ARTICLE 926. When the testator charges one of the
heirs with a legacy or devise, he alone shall be bound.
Should he not charge anyone in particular, all shall be
liable in the same proportion in which they may inherit.
(859)
Who is charged with the legacy:
A. General rule—the estate.
Exception: However, the testator may impose the
burden on a testamentary heir or a legatee or devi-
see. If he does so, then the heir, legatee, or devisee
charged will, if he accepts the disposition in his fa-
vor, be bound to deliver the legacy or devise to the
person specified. This will be in the nature of a sub-
sidiary legacy or devise. (As far as the heir, legatee,
or devisee charged is concerned, it will be a mode
[Vide Article 882, supra]).
B. The wording of Art. 925 is erroneous. A compulsory

heir as such cannot be burdened with a legacy or
devise because that would impair his legitime. Only
a testamentary heir can be so burdened.
C. Extent of liability of heir, devisee, or legatee in case
of subsidiary legacies or devises—the value of the
benefit received from the testator.
ARTICLE 927. If two or more heirs take possession of
the estate, they shall be solidarity liable for the loss or de-
struction of a thing devised or bequeathed, even though
only one of them should have been negligent, (n)
The liability imposed by this article is based on malice,
fault or negligence.
This liability will also attach to the executor or administra-
tor in the proper cases.
ARTICLE 928. The heir who is bound to deliver the

legacy or devise shall be liable in case of eviction, if the
thing is indeterminate and is indicated only by its kind.
(860)
Who is liable in case of eviction?
A. General rule—the estate
B. In case of a subsidiary legacy or devise—the heir,
legatee, or devisee charged.
ARTICLE 929. If the testator, heir, or legatee owns
only a part of, or an interest in the thing bequeathed, the
legacy or devise shall be understood limited to such part or
interest, unless the testator expressly declares that he
gives the thing in its entirety. (864a)
ARTICLE 930. The legacy or devise of a thing be-
longing to another person is void, if the testator erro-
neously believed that the thing pertained to him. But if the
thing bequeathed, though not belonging to the testator
when he made the will, afterwards becomes his, by what-
ever title, the disposition shall take effect. (862a)
ARTICLE 931. If the testator orders that a thing be-

longing to another be acquired in order that it be given to a
legatee or devisee, the heir upon whom the obligation is
imposed or the estate must acquire it and give the same to
the legatee or devisee; but if the owner of the thing refuses
to alienate the same, or demands an excessive price there-
for, the heir or the estate shall only be obliged to give the
just value of the thing. (861a)
ARTICLE 932. The legacy or devise of a thing which
at the time of the execution of the will already belonged to
the legatee or devisee shall be ineffective, even though an-
other person may have some interest therein.
If the testator expressly orders that the thing be freed
from such interest or encumbrance, the legacy or devise
shall be valid to that extent. (866a)
ARTICLE 933. If the thing bequeathed belonged to
the legatee or devisee at the time of the execution of the
will, the legacy or devise shall be without effect, even
though it may have been subsequently alienated by him.
If the legatee or devisee acquires it gratuitously after
such time, he can claim nothing by virtue of the legacy or
devise; but if it has been acquired by onerous title he can
demand reimbursement from the heir or the estate. (878a)
ARTICLE 934. If the testator should bequeath or de-
vise something pledged or mortgaged to secure a recover-
able debt before the execution of the will, the estate is
obliged to pay the debt, unless the contrary intention ap-
pears.
The same rule applies when the thing is pledged or
mortgaged after the execution of the will.
Any other charge, perpetual or temporary, with which
the thing bequeathed is burdened, passes with it to the
legatee or devisee. (867a)
ARTICLE 935. The legacy of a credit against a third
person or of the remission or release of a debt of the lega-
tee shall be effective only as regards that part of the credit

or debt existing at the time of the death of the testator.
In the first case, the estate shall comply with the leg-
acy by assigning to the legatee all rights of action it may
have against the debtor. In the second case, by giving the
legatee an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on
the credit or debt which may be due the testator at the
time of his death. (870a)
ARTICLE 936. The legacy referred to in the preceding
article shall lapse if the testator, after having made it,
should bring an action against the debtor for the payment
of his debt, even if such payment should not have been ef-
fected at the time of his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge. (871)
ARTICLE 937. A generic legacy of release or remis-
sion of debts comprises those existing at the time of the
execution of the will, but not subsequent ones. (872)
I. Legacy/Devise of a thing owned in part by the testator
(Article 929):
General rule—conveys only the interest or part owned by
the testator.
Exception—if testator provides otherwise, viz:
1) he may convey more than he owns—the estate
should try to acquire the part or interest
owned by other parties. If the other parties are
unwilling to alienate, the estate should give
the legatee/devisee the monetary equivalent
(by analogy with Article 931)
[The validity of the disposition as to the part
or interest not owned by the testator will be
determined by the provisions of Articles 930
and 931 (infra, II)
2) he may convey less than he owns (Article 794)

II. Legacy/Devise of a thing belonging to another (Articles
930-931):
A. If the testator ordered the acquisition of the thing—
the order should be complied with. If the owner is
unwilling to part with the thing, the legatee/devisee
should be given the monetary equivalent.
B. If the testator erroneously believed that the thing
belonged to him — legacy/devise void.
Exception—if, subsequent to the making of the dis-

position, the thing is acquired by the testator onerously
or gratuitously, the disposition is validated.
C. If the testator knew that the thing did not belong to
him but did not order its acquisition — the Code is
silent on this. The most rational solution seems to
be that such a disposition should be considered
valid, because:
1) the fact that the testator, with knowledge of
another person’s ownership, bequeathed the
thing, implies an order to acquire;
2) at worst, there is a doubt, and doubts should
be resolved in favor of testacy (Articles 788
and 791, supra),
III. Legacy/Devise of a thing already belonging to the

legatee/devisee or subsequently acquired by him (Articles 932-
933):
A. If the thing already belonged to the legatee/devisee
at the time of the execution of the will—legacy/
devise void. It is not validated by an alienation by
the legatee/devisee subsequent to the making of the
will, unless the acquirer is the testator himself. [6
Manresa 677, 1903 ed., p. 595)
Note: Arts. 932, par. 1 and 933, par. 1 say essentially

the same thing and should be merged.
B. If the thing was owned by another person at the

time of the making of the will and acquired thereaf-
ter by the legatee/devisee:
1) If the testator erroneously believed that it be-
longed to him—legacy/devise void (Vide Article
930, supra].
2) If the testator was not in error —
a) if the thing was acquired onerously by
legatee/devisee—legatee/devisee entitled
to reimbursement.
b) if the thing was acquired gratuitously by
legatee/devisee—nothing more is due.
C. If the thing was owned by the testator at the time of
the making of the will and acquired thereafter from
him by the legatee/devisee—Articles 932 and 933 are
silent on this, but Article 957, par. 2 (infra) can be
applied and the legacy/devise should be deemed re-
voked.
IV. Legacy/Devise to remove an encumbrance over a
thing belonging to the legatee/devisee (Article 932, par. 2)—
Valid, if the encumbrance can be removed for a consideration.
V. Legacy/Devise of a thing pledged or mortgaged (Article
934) :—The encumbrance must be removed by paying the debt,
unless the testator intended otherwise.
A charge other than a pledge or mortgage (as a usufruct or
easement) passes to the legatee or devisee together with the
thing) (Art. 934, par. 3 & Art. 946)
VI. Legacy of credit or remission (Articles 935-937):
A. applies only to amount still unpaid at the time of
testator’s death (Article 935);
B. revoked if testator subsequently sues the debtor for
collection (Article 936);
C. if generic, applies only to those existing at the time
of the execution of the will. (Articles 937 and 793),
unless otherwise provided.
ARTICLE 938. A legacy or devise made to a creditor

shall not be applied to his credit, unless the testator so ex-
pressly declares.
In the latter case, the creditor shall have the right to
collect the excess, if any, of the credit or of the legacy or
devise. (873a)
ARTICLE 939. If the testator orders the payment of
what he believes he owes but does not in fact owe, the dis-
position shall be considered as not written. If as regards a
specified debt more than the amount thereof is ordered
paid, the excess is not due, unless a contrary intention ap-
pears.
The foregoing provisions are without prejudice to the
fulfillment of natural obligations, (n)
I. Legacy/Devise to a creditor (Article 938)—
General rule—Will be treated like any other legacy/devise
and therefore will not be imputed to the debt.
Exception—will be imputed to the debt if the testator so
provides, and if the debt exceeds the legacy/devise, the excess
may be demanded as an obligation of the estate.
Note: If the testator does provide that the legacy/devise
should be imputed to the debt and the amount of the debt is
equal to or more than the value of the legacy/devise it would be
folly for the creditor to accept the “benefit.” He will be much
better off renouncing the legacy/devise and filing a claim for
the credit.
II. Testamentary instruction to pay a debt (Article 939) —
A) This is not a testamentary disposition, but merely
a direction to discharge a civil obligation.
B) Instruction to pay a non-existing debt—should be
disregarded, because this would be solutio indeb-
itt
C) Instruction to pay more than what is due—

effective only as to what is due, unless the bigger
amount specified constitutes a natural obligation
(Articles 1423-1430).
ARTICLE 940. In alternative legacies or devises, the
choice is presumed to be left to the heir upon whom the
obligation to give the legacy or devise may be imposed, or
the executor or administrator of the estate if no particular
heir is so obliged.
If the heir, legatee or devisee, who may have been
given the choice, dies before making it, this right shall pass
to the respective heirs.
Once made, the choice is irrevocable.
In alternative legacies or devises, except as herein
provided, the provisions of this Code regulating obligations
of the same kind shall be observed, save such modifications
as may appear from the intention expressed by the testator.
(874a)
Alternative legacies/devises
I. Definition—One which provides that, among several
things mentioned, only one is to be given.
II. Right of choice —
A. General rule:
1) the estate, through the executor or administra-
tor—in a direct legacy/devise
2) the heir, legatee, or devisee charged—in a sub-
sidiary legacy/devise.
These parties are, analogously, in the position of the

debtor (Vide Article 1200).
Exception: the legatee/devisee (or indeed any other per-

son), if the testator so provides.
B. If the person who is to choose dies before choice is
made:
1) if the choice belonged to executor or adminis-

trator—the right is transmitted to his succes-
sor in office.
2) if the choice belongs to an heir, legatee, or de-
visee—the right is transmitted to his own
heirs.
C. Choice is irrevocable.
III. Provisions suppletorily governing—Articles 1199-
1205, on alternative obligations.
ARTICLE 941. A legacy of generic personal property

shall be valid even if there be no things of the same kind in
the estate.
A devise of indeterminate real property shall be valid
only if there be immovable property of its kind in the es-
tate.
The right of choice shall belong to the executor or ad-
ministrator who shall comply with the legacy by the deliv-
ery of a thing which is neither of inferior nor of superior
quality. (875a)
ARTICLE 942. Whenever the testator expressly leaves

the right of choice to the heir, or to the legatee or devisee,
the former may give or the latter may choose whichever he
may prefer. (876a)
ARTICLE 943. If the heir, legatee or devisee cannot

make the choice, in case it has been granted him, his right
shall pass to his heirs; but a choice once made shall be ir-
revocable. (877a)
Generic legacies/devises:
I. Rules on Validity: (Article 941)
A. Generic legacy—valid even if no such movables exist
in the testator’s estate upon his death. The estate
will simply have to acquire what is given by legacy.
B. Generic devise—valid only if there exists such an

immovable in the testator’s estate at the time of his
death.
[Note: This distinction—found in the Spanish Code—
perpetuates the rule in the Partidas (Law 23, Title 9, Partida 6),
even if it has become artificial and arbitrary in modern times.]
II. Right of choice: (Articles 942-943)

A. General rule—the executor or administrator, acting
for the estate.
Exception—if the testator gives the right of choice to the

legatee/devisee, or to the heirs on whom the obligation to give
the benefit is imposed (in a subsidiary legacy or devise).
B. Limitation on choice—the choice must be limited to
something which is neither superior nor inferior in
quality. This rule applies whether the choice belongs
to the executor/administrator or the legatee/devisee
(Vide also Article 124628).
C. Finality of choice—irrevocable, once made.
D. Transmissibility of right to choose—
1) if the choice belongs to the executor/ad-
ministrator and he dies before making the
choice—right is transmitted to his successor
in the position.
2) if the choice belongs to the legatee/devisee
and he dies before making the choice—right
passes to his heirs.
ARTICLE 944. A legacy for education lasts until the
legatee is of age, or beyond the age of majority in order that
the legatee may finish some professional, vocational or
28 Art. 1246. When the obligation consists in the delivery of an inde-
terminate or generic thing, whose quality and circumstances have not been
stated, the creditor cannot demand a thing of superior quality. Neither can the
debtor deliver a thing of inferior quality. The purpose of the obligation and
other circumstances shall be taken into consideration. (1167a)
general course, provided he pursues his course diligently.

A legacy for support lasts during the lifetime of the
legatee, if the testator has not otherwise provided.
If the testator has not fixed the amount of such lega-
cies, it shall be fixed in accordance with the social standing
and the circumstances of the legatee and the value of the
estate.
If the testator during his lifetime used to give the lega-
tee a certain sum of money or other things by way of sup-
port, the same amount shall be deemed bequeathed, unless
it be markedly disproportionate to the value of the estate.
(879a)
ARTICLE 945. If a periodical pension, or a certain
annual, monthly, or weekly amount is bequeathed, the lega-
tee may petition the court for the first installment upon
the death of the testator, and for the following ones which
shall be due at the beginning of each period; such payment
shall not be returned, even though the legatee should die
before the expiration of the period which has commenced.
(880a)
I. Legacy for education:
1) Duration—age of majority (18) or the completion
of a professional, vocational, or general course,
whichever comes later. [In the latter instance,
only if the legatee pursues his studies diligently.]
2) Amount:
a) Primarily—that fixed by the testator
b) Secondarily—that which is proper, as deter-
mined by two variables: (i) the social standing
and circumstances of the legatee, and (ii) the
value of the disposable portion of the estate.
II. Legacy for support:
1) Duration—the legatee’s lifetime, unless the testa-
tor has provided otherwise.
2) Amount:
a) Primarily—that fixed by the testator.
b) Secondarily—that which the testator during
his lifetime used to give the legatee by way of
support, unless markedly disproportionate to
the value of the disposable portion.
c) Tertiarily—that which is reasonable, on the
basis of two variables: (i) the social standing
and circumstances of the legatee, and (ii) the
value of the disposable portion.
III. Legacy of a periodical pension:
Demandability—upon the testator’s death, and the suc-
ceeding ones at the beginning of the period without duty to re-
imburse should the legatee die before the lapse of the period.
Note: This should be harmonized with the rules on the
settlement of estates: Le., the debts should first be paid before
any testamentary grants can be complied with (unless the lega-
tee files a bond under Rule 90, Section 1 of the Rules of Court).
However, should the legacy prove not inofficious, the date of
effectivity shall retroact to the decedent’s death.
ARTICLE 946. If the thing bequeathed should be sub-
ject to a usufruct, the legatee or devisee shall respect such
right until it is legally extinguished. (868a)
This article lays down the same rule as Article 934, par. 3
(supra).
ARTICLE 947. The legatee or devisee acquires a right

to the pure and simple legacies or devises from the death of
the testator, and transmits it to his heirs. (881a)
ARTICLE 948. If the legacy or devise is of a specific
and determinate thing pertaining to the testator, the lega-
tee or devisee acquires the ownership thereof upon the
death of the testator, as well as any growing fruits, or un-
born offspring of animals, or uncollected income; but not the
income which was due and unpaid before the latter’s death.
From the moment of the testator’s death, the thing

bequeathed shall be at the risk of the legatee or devisee,
who shall, therefore, bear its loss or deterioration, and shall
be benefited by its increase or improvement, without preju-
dice to the responsibility of the executor or administrator.
(882a)
ARTICLE 949. If the bequest should not be of a spe-
cific and determinate thing, but is generic or of quantity,
its fruits and interests from the time of the death of the
testator shall pertain to the legatee or devisee if the testa-
tor has expressly so ordered. (884a)
Demandability, Ownership, and Fruits of Legacies/
Devises:
I. Demandability:
A. 1. pure and determinate—upon testator’s death
2. pure and generic—upon testator’s death
B. with a (suspensive) term—upon the arrival of the
term
C. conditional (suspensive)—upon the happening of
the condition.
II. When Ownership vests:
A. 1. pure and determinate—upon testator’s death
2. pure and generic—
a) if from testator’s estate—upon testator’s death
b) if acquired from a third person—upon acqui-
sition
B. with a (suspensive) term—upon arrival of the term,
but the right to it vests upon the testator’s death
(vide Article 878, supra)
C. conditional (suspensive)—upon the testator’s
death, if the condition is fulfilled (Article 118729)
29 Art. 1187. The effects of a conditional obligation to give, once the
condition has been fulfilled, shall retroact to the day of the constitution of the
III. Fruits:
A. 1. pure and determinate—upon the testator’s death
(Article 948)
2. pure and generic—upon determination, unless tes-
tator provides otherwise (Article 949)
B. with a (suspensive) term—upon the arrival of the
term (implied from Article 885, supra).
Although this article does not explicitly so declare,

the descendants of illegitimate children shall inherit
per capita if all the illegitimate children renounce.
If these descendants can inherit per sterp6s, they
can, in proper cases, inherit per capita.
Quaerendurrv. Supposing some of the descen-
dants are legitimate and others, illegitimate, how
shall they share in the inheritance? Will they in-
herit according to the two-to-one portion laid down
in Article 176 of the Family Code?
C. conditional (suspensive)—upon the happening of the
condition, unless the testator provides otherwise (Ar-
ticle 884, in relation to Article 1187).
ARTICLE 950. If the estate should not be sufficient
to cover all the legacies or devises, their payment shall be
made in the following order:
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be
preferential;
(3) Legacies for support;
obligation. Nevertheless, when the obligation imposes reciprocal prestations

upon the parties, the fruits and interests during the pendency of the condition
shall be deemed to have been mutually compensated. If the obligation is uni-
lateral, the debtor shall appropriate the fruits and interests received, unless
from the nature and circumstances of the obligation it should be inferred that
the intention of the person constituting the same was different.
In obligations to do and not to do, the courts shall determine, in each
case, the retroactive effect of the condition that has been complied with. (1120)
(4) Legacies for education;

(5) Legacies or devises of a specific, determinate
thing which forms a part of the estate;
(6) All others pro rata. (887a)
I. This article lays down an order of preference among
legacies and devises in case the estate is not sufficient for all of
them.
II. Article 950 and Article 911—Article 911 (supra), also
contains a rule for reduction of legacies and devises and the
order of preference there is different: it simply provides that all
the non-preferred legacies/devises will be reduced pro rata, and
the preferred legacies/devises are reduced last. It is a rule dif-
ferent from that set forth in this article.
Possible reconciliation between the two articles: Each arti-
cle can be given its own area of applicability —
1) Article 911 will apply if reductions have to be
made because the legitimes have been impaired,
i.e., if the legacies/devises have exceeded the dis-
posable portion.
2) Article 950 will apply if the reason for the re-
duction is not the impairment of legitimes; e.g.,
there are no legitimes because there are no com-
pulsory heirs or the legitimes have already been
satisfied through donations inter vivos.
ARTICLE 951. The thing bequeathed shall be deli-

vered with all its accessions and accessories and in the
condition in which it may be upon the death of the tes-
tator. (883a)
I. The obligation to deliver the accessions and accessories

exists even if the testator does not explicitly provide for it. This
is the same rule laid down in Article 1166.30
30 Art. 1166. The obligation to give a determinate thing includes that of
delivering all its accessions and accessories, even though they may not have
been mentioned. (1097a)
II. The crucial time is the testator’s death, because that

is when successional rights vest [Vide Article 777). That is why
the thing must be delivered in the condition in which it is at
that time.
ARTICLE 952. The heir, charged with a legacy or de-
vise, or the executor or administrator of the estate, must
deliver the very thing bequeathed if he is able to do so and
cannot discharge this obligation by paying its value.
Legacies of money must be paid in cash, even though
the heir or the estate may not have any.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the es-
tate, but without prejudice to the legitime. (886a)
This article conforms to the rule of identity in the perform-
ance of obligations. (Vide Article 124431).
ARTICLE 953. The legatee or devisee cannot take

possession of the thing bequeathed upon his own authority,
but shall request its delivery and possession of the heir
charged with the legacy or devise, or of the executor or
administrator of the estate should he be authorized by the
court to deliver it. (885a)
Although the efficacy of a legacy or devise vests upon the
testator’s death, actual delivery does not take place at that
time. As already pointed out, debts first have to be paid, then
legitimes have to be determined, and the testamentary disposi-
tions (including legacies and devises) computed lest they impair
the legitimes. It is only after these steps have been taken that
the beneficiaries of the will can take possession.
ARTICLE 954. The legatee or devisee cannot accept a
part of the legacy or devise and repudiate the other, if the
31 Art. 1244. The debtor of a thing cannot compel the creditor to re-
ceive a different one, although the latter may be of the same value as, or more
valuable than that which is due.
In obligations to do or not do to, an act or forbearance cannot be substi-
tuted by another act or forbearance against the obligee's will. (1166a)
latter be onerous.
Should he die before having accepted the legacy or de-
vise, leaving several heirs, some of the latter may accept
and the others may repudiate the share respectively belong-
ing to them in the legacy or devise. (889a)
ARTICLE 955. The legatee or devisee of two legacies
or devises, one of which is onerous, cannot renounce the
onerous one and accept the other. If both are onerous or
gratuitous, he shall be free to accept or renounce both, or
to renounce either. But if the testator intended that the
two legacies or devises should be inseparable from each
other, the legatee or devisee must either accept or re-
nounce both.
Any compulsory heir who is at the same time a legatee
or devisee may waive the inheritance and accept the legacy
or devise, or renounce the latter and accept the former, or
waive or accept both. (890a)
Rules on Acceptance and Repudiation of Legacies/Devises:
I. A. Acceptance may be total or partial. [This is implied
from Article 954, par. 1]
Note: In the Spanish Code (Article 990), acceptance
could not be made partially. This article, however, was not re-
tained in our Code.
Exception: If the legacy/devise is partly onerous and
partly gratuitous, the recipient can not accept the gratuitous
part and renounce the onerous part (Article 954, par. 1). Any
other combination however is permitted.
B. Acceptance or Repudiation by heirs of legatee/ devi-
see—If the legatee/devisee dies before accepting or renouncing,
his heirs shall exercise such right as to their pro-indiviso
share, and in the same manner as outlined above.
II. Two legacies/devises to the same recipient:
A. If both gratuitous—The recipient may accept or re-
nounce either or both.
Arts. 956957 TESTAMENTARY SUCCESSION 467
B. If both onerous—Same rule as [A],

C. If one gratuitous and the other onerous—The recipi-
ent cannot accept the gratuitous and renounce the
onerous. Any other combination is permitted [Article
955, par. 1],
III. Legacy/Devise to one who is also a compulsory heir:
The recipient may accept either or both, viz., the leg-
acy/devise and the legitime. [Article 955, par. 2], [Vide Article
1055, infra]
IV. Effect if will provides otherwise—All of the rules above

outlined apply in the absence of a stipulation in the will provid-
ing otherwise. The testator’s wishes are supreme.
ARTICLE 956. If the legatee or devisee cannot or is
unwilling to accept the legacy or devise, or if the legacy or
devise for any reason should become ineffective, it shall be
merged into the mass of the estate, except in cases of sub-
stitution and of the right of accretion. (888a)
Rules in case of Repudiation by or Incapacity of Lega-
tee/Devisee:
I. Primarily—substitution
II. Secondarily—accretion
III. Tertiarily—intestacy
ARTICLE 957. The legacy or devise shall be without

effect:
(1) If the testator transforms the thing bequeathed in
such a manner that it does not retain either the form or the
denomination it had;
(2) If the testator by any title or for any cause alien-
ates the thing bequeathed or any part thereof, it being un-
derstood that in the latter case the legacy or devise shall be
without effect only with respect to the part thus alienated.
If after the alienation the thing should again belong to the
testator, even if it be by reason of nullity of the contract,
the legacy or devise shall not thereafter be valid, unless the

reacquisition shall have been effected by virtue of the exer-
cise of the right of repurchase;
(3) If the thing bequeathed is totally lost during the
lifetime of the testator, or after his death without the heir’s
fault. Nevertheless, the person obliged to pay the legacy or
devise shall be liable for eviction if the thing bequeathed
should not have been determinate as to its kind, in accor-
dance with the provisions of Article 928. (869a)
This article enumerates the instances when the legacy/
devise is revoked by operation of law:
1. transformation—e.g., the testator converts a plan-
tation into a fishpond.
2. alienation—the alienation by the testator may be
onerous or gratuitous.
a. The alienation revokes the legacy/devise even
if for any reason the thing reverts to the testa-
tor.
Exceptions—
1) If the reversion is caused by the annulment of
the alienation and the cause for annulment
was vitiation of consent on the grantor’s part,
either by reason of incapacity or of duress.
(Fernandez v. Dimagiba, 21 SCRA 428 [1967])
2) If the reversion is by virtue of redemption in a
sale with pacto de retro.
3. total loss—this will be a cause for revocation only
if it takes place before the testator’s death. Fortui-
tous loss after the testator’s death will not consti-
tute revocation (despite the wording of par. 3 of
this article, because legally the disposition takes
effect upon death [Article 777, supra]. Therefore,
fortuitous loss after the testator’s death will sim-
ply be an instance of “res perit domino'' and will be
borne by the legatee/devisee.
ARTICLE 958. A mistake as to the name of the thing

bequeathed or devised, is of no consequence, if it is possi-
ble to identify the thing which the testator intended to be-
queath or devise, (n)
This principle is already set forth in Article 789 (supra).

ARTICLE 959. A disposition made in general terms in
favor of the testator’s relatives shall be understood to be in
favor of those nearest in degree. (751)
This article is misplaced here, because it applies not just

to legatees/devisees but to all testamentary heirs as well. This
article should have been placed in Section 2 of this Chapter:
“Institution of Heir.”
Quaerendum: Who are these relatives?

1. Apparently, the term “relatives” extends only up to the
fifth degree (the limit in intestacy).
Belen v. BPI (109 Phil. 1008 [I960]) states in an obiter that
“...the law [Art. 959] assumes that the testator intended to refer
to the rules of intestacy ...”.
Intestacy in Philippine law stops with the fifth degree of
consanguinity. Beyond that degree, blood kinship is not recog-
nized. (Ill Tolentino, op. cit., 1992 ed., p. 430; III Paras, Civil
Code of the Philippines Annotated, 1994 ed., p. 411).
2. However, representation (a feature of intestate succes-
sion) does not operate in the application of this article (Belen v.
BPI, supra 1, citing Castan). The reason is that Article 751 of
the Spanish Code (from which this article is derived) deliber-
ately suppressed the provision in the Proyecto of 1851 (Art.
562) allowing representation.
[In fact, commentators opine that the other rules of intes-
tacy, such as preference of line, the distinction between full-
and half-blood fraternity, are not applicable either, and that
only the principle of proximity applies (Vide III Tolentino, op.
cit., p. 429; Jurado, Comments and Jurisprudence On Succes-
sion, 1991 ed., p. 374; III Paras, op. cit., p. 411; III Caguioa,
Comments and Cases on Civil Law, 1970 ed., p. 342].
3. Institution of relatives of another person:
The institution of relatives of another person, not of the
testator, does not fall within the ambit of this article. There is
opinion to the effect that such an institution is void for vague-
ness (Vide III Tolentino, op. cit., p. 430; II Vitug, Civil Law,
2003 ed., p. 269).
But it was held in Belen u. BPI, supra, 1, that an institu-
tion (by way of simple substitution, of the legatee’s “descendi-
entes legitimos” was valid and covered all legitimate descen-
dants, i.e. children, grandchildren, etc. per capita, in accord
with Art. 846, supra
—oOo—
Chapter 3
LEGAL OR INTESTATE SUCCESSION

SECTION 1.—GENERAL PROVISIONS
ARTICLE 960. Legal or intestate succession takes
place:
(1) If a person dies without a will, or with a void will,
or one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dis-
pose of all the property belonging to the testator. In such
case, legal succession shall take place only with respect to
the property of which the testator has not disposed;
(3) If the suspensive condition attached to the insti-
tution of heir does not happen or is not fulfilled, or if the
heir dies before the testator, or repudiates the inheritance,
there being no substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of succeed-
ing, except in cases provided in this Code. (912a)
I. Legal or intestate succession defined:
A. The Code curiously omits to define this kind of suc-
cession, although testamentary succession (Article
779, supra) and mixed succession (Article 780, su-
pra) are both defined.
B. The draft Code—as did the Spanish Code—con-
tained such a definition:
471
1. The draft Code: “Intestate or legal succession

takes place by operation of law in the absence of a
valid will.” [This draft provision was, inexplicably,
deleted.]
2. The Spanish Code: “Art. 658. La sucesion se defi-
ere por la voluntad del hombre manifestada en
testamento y, afalta de este, por disposicion de la
ley.1
xxx xxx xxx”
II. Instances when legal or intestate succession operates:
(1) If a person dies without a will, or with a void will,
or one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dis-
pose of all the property belonging to the testator. In
such case, legal succession shall take place only
with respect to the property of which the testator
has not disposed;
(3) If the suspensive condition attached to the institu-
tion of heir does not happen or is not fulfilled, or if
the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no
right of accretion takes place;
(4) When the heir instituted is incapable of succeed-
ing, except in cases provided in this Code.
(1) There are three instances contained in this para-
graph although, legally, the result is the same in
each instance, i.e., there is no will.
A will that has subsequently lost its validity is one that

has been revoked (Vide Articles 830-837, supra) without a later
one taking its place. “Validity” should read “efficacy.”
(2) In these instances, intestacy may be total or par-
tial.
1 Succession results from a person’s will as manifested in a testament,
or in default thereof, by operation of law.

Arts. 961-962 LEGAL OR INTESTATE SUCCESSION 473
(3) Intestacy here may also be total or partial, depend-

ing on the extent of the disposition that turns out
to be inoperative.
(4) Incapacity to succeed is found in Articles 1027,
1028, and 1032 [infra). Intestacy here may be total
or partial.
Other causes of intestacy:
(5) happening of resolutory condition;
(6) expiration of resolutory term;
(7) preterition.
ARTICLE 961. In default of testamentary heirs, the

law vests the inheritance, in accordance with the rules
hereinafter set forth, in the legitimate and illegitimate rela-
tives of the deceased, in the surviving spouse, and in the
State. (913a)
ARTICLE 962. In every inheritance, the relative

nearest in degree excludes the more distant ones, saving
the right of representation when it properly takes place.
Relatives in the same degree shall inherit in equal
shares, subject to the provisions of Article 1006 with re-
spect to relatives of the full and half blood, and of Article
987, paragraph 2, concerning division between the paternal
and maternal lines. (921a)
I. Exclusion and Concurrence in Intestacy—Intestacy op-
erates on the same principles as succession to the legitime.
There are two principles, operating sometimes simultaneously,
sometimes singly: exclusion and concurrence.
II. The groups of intestate heirs and the different combi-
nations in intestacy are outlined under Section 2 (Articles 978-
1010, infra).
III. Basis of Intestate Succession—The presumed will of

the decedent, which would distribute the estate in accordance
with the love and affection he has for his family and close rela-
tives, and in default of these persons, the presumed desire of

the decedent to promote charitable and humanitarian activi-
ties.
As Manresa explains it: “The law [of intestacy] is founded. . .
on the presumed will of the deceased. . . . Love, it is said, first
descends, then ascends, and, finally, spreads sideways. Thus,
the law first calls the descendants, then the ascendants, and
finally the collaterals, always preferring those closer in degree
to those of remoter degrees, on the assumption that the de-
ceased would have done so had he manifested his last will. . . .
Lastly, in default of anyone called to succession or bound to the
decedent by ties of blood or affection, it is in accordance with
his presumed will that his property be given to charitable or
educational institutions, and thus contribute to the welfare of
humanity." (7 Manresa, op. cit., pp. 19-20).
IV. Basic Rules of Intestacy:
A. The rule of preference of lines—
The three lines of relationship are: 1) the descending; 2)
the ascending; and 3) the collateral. The law lays down an or-
der of preference among these lines, such that the descending
excludes the ascending and the collateral, and the ascending
excludes the collateral (Manresa, /bid; Vide Articles 978, 985,
and 1003, inf r aj .
B. The rule of proximity of degree—

The nearer exclude the more remote (Article 962, par. 1),
without prejudice to representation.
C. The rule of equality among relatives of the same de-
gree—
This rule is a corollaiy of the previous one: If the nearer

exclude the more remote, logically those of equal degree should
inherit in equal shares (Article 962, par. 2).
Exceptions to rule of equality in the same degree:
1) the rule of preference of lines, supra;
2) the distinction between legitimate and illegiti-
mate filiation (the ratio under present law is 2:1)

(Article 983, in rel. to Article 895, as amended by
Article 176, Family Code);
3) the rule of division by line in the ascending line
(Article 987, par. 2);
4) the distinction between full-blood and half-blood
relationship among brothers and sisters, as well
as nephews and nieces (Articles 1006 and 1008);
5) representation.
SUBSECTION 1.—RELATIONSHIP
ARTICLE 963. Proximity of relationship is deter-

mined by the number of generations. Each generation
forms a degree. (915)
ARTICLE 964. A series of degrees forms a line, which
may be either direct or collateral.
A direct line is that constituted by the series of deg-
rees among ascendants and descendants.
A collateral line is that constituted by the series of de-
grees among persons who are not ascendants and des-
cendants, but who come from a common ancestor. (916a)
ARTICLE 965. The direct line is either descending or

ascending.
The former unites the head of the family with those
who descend from him.
The latter binds a person with those from whom he
descends. (917)
ARTICLE 966. In the line, as many degrees are

counted as there are generations or persons, excluding the
progenitor.
In the direct line, ascent is made to the common an-
cestor. Thus, the child is one degree removed from the par-
ent, two from the grandfather, three from the great-
grandparent.
In the collateral line, ascent is made to the common
ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is two
degrees removed from his brother, three from his uncle,
who is the brother of his father, four from his first cousin,
and so forth. (918a)
I. Line: Article 964, par. 1
A. Direct—Article 964, par. 2
1. descending—Article 965, par. 2
2. ascending—Article 965, par. 3
B. Collateral—Article 964, par. 3.
1. Direct and Collateral.—Importance of distinction:
The direct is preferred over the collateral.
2. Descending direct and ascending direct.—Impor-

tance of distinction: The descending is preferred
over the ascending.
[Vide outline of Basic Rules of Intestacy under Articles

961-962, supra].
II. Computation of degrees;

A. Direct Line—There is no legal limit to the number of
degrees for entitlement to intestate succession. The
practical limit, of course, is human mortality.
Mode of counting degrees in the direct line:

one generation = one degree (Article 966, par. 2)
parent-child = one degree;
grandparent-grandchild = two degrees;
great-grandparent-great-grandchild = three degrees;
and so forth.
B. Collateral line—Computation of degrees is particu-

larly important in the collateral line because intes-
Art. 967 LEGAL OR INTESTATE SUCCESSION 477
tate succession extends only to the 5th degree of col-

lateral relationship (Article 1010).
1. Mode of counting degrees in the collateral line:
(Article 966, par. 3):
(i) From one reference point, ascend to nearest
common ancestor [If there are more than
one nearest common ancestor, choose any
one].
(ii) Then descend to the other reference point.
(iii) Number of generations constituting the as-
cent and the descent is the degree of collat-
eral relationship.
2. Collaterals by Degrees:
First degree—none
Second degree—brothers/sisters
1) Uncles/Aunts
2) Nephews/Nieces
Third degree— 1) First cousins
2) Brothers/Sisters of a
Fourth degree- grandparent (grand-
uncles/grand-aunts)
3) Grandchildren of a
brother/sister (grand-
nephews/grand-
nieces)
1) Children of a first
c
Fifth degree— o
u
s
i
n
2) First cousins of a parent
3) Brothers/sisters of a
great-grandparent
4) Great grandchildren of
a brother/sister.
ARTICLE 967. Full blood relationship is that existing

between persons who have the same father and the same
mother.
Half blood relationship is that existing between per-

sons who have the same father, but not the same mother,
or the same mother, but not the same father. (920a)
Importance of Distinction Between Full-Blood and Half-
Blood Relationship—With reference to brothers and sisters and
nephews and nieces, there is a ratio of 2:1 for full-blood and
half-blood relationship respectively (Articles 1006 and 1008).
With respect to other collateral relatives, the full-blood and
half-blood relationship is not material.
ARTICLE 968. If there are several relatives of the

same degree, and one or some of them are unwilling or in-
capacitated to succeed, his portion shall accrue to the oth-
ers of the same degree, save the right of representation
when it should take place. (922)
Accretion in intestacy.—There is accretion in intestacy

among heirs of the same degree, in case of predecease, inca-
pacity, or renunciation of any one of them. {Vide Article 1015).
1. In case of predecease or incapacity, representation, if

proper, will prevent accretion from occurring.
2. Relatives must be in the same kind of relationship—
For accretion to take place the heirs involved must be
in the same kind of relationship to the decedent. This
is because of the principle of preference of lines in in-
testate succession. Thus, there can be no accretion
among a grandchild, a grandparent and a brother of
the decedent (even if they are all related to him in the
second degree) because they are not inheriting to-
gether in the first place.
ARTICLE 969. If the inheritance should be repudiated

by the nearest relative, should there be one only, or by all
the nearest relatives called by law to succeed, should there
be several, those of the following degree shall inherit in
their own right and cannot represent the person or persons
repudiating the inheritance. (923)
I. Effect of Renunciation by All in the Same Degree: The

right of succession should first be passed on the heirs in suc-
ceeding degrees (in successive order) before the next line can
succeed, because of the rule of preference of lines.
Thus:
1) The descending line first.—If all the descendants
of a certain degree renounce, succession passes to
the descendants of the next degree, and so on, ad
indefinitunv,
2) The ascending line next.—Should no one be left in
the descending line, the heirs in the ascending
acquire the right of succession, again in order of
degrees of proximity;
3) The collateral line last.—Only if all the descen-
dants and ascendants renounce will the collateral
relatives acquire the right to succeed.
II. Predecease or Incapacity by All in the Same Degree:
This eventuality is not provided for by this article. The

rules outlined above, however, are equally applicable to such a
situation, except in cases where representation is proper, le., in
the descending line.
Representation does not apply in cases of universal re-
nunciation outlined above, because there is no representation
in renunciation (Vide Article 977, infra).
SUBSECTION 2.—RIGHT OF REPRESENTATION
ARTICLE 970. Representation is a right created by

fiction of law, by virtue of which the representative is
raised to the place and the degree of the person repre-
sented, and acquires the rights which the latter would have
if he were living or if he could have inherited. (924a)
ARTICLE 971. The representative is called to the

succession by the law and not by the person represented.
The representative does not succeed the person repre-
sented but the one whom the person represented would

have succeeded, (n)
ARTICLE 972. The right of representation takes place

in the direct descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the
children of brothers or sisters, whether they be of the full
or half blood. (925)
ARTICLE 973. In order that representation may take

place, it is necessary that the representative himself be ca-
pable of succeeding the decedent, (n)
ARTICLE 974. Whenever there is succession by rep-

resentation, the division of the estate shall be made per
stirpes, in such manner that the representative or repre-
sentatives shall not inherit more than what the person they
represent would inherit, if he were living or could inherit.
(926a)
ARTICLE 975. When children of one or more brothers

or sisters of the deceased survive, they shall inherit from
the latter by representation, if they survive with their un-
cles or aunts. But if they alone survive, they shall inherit in
equal portions. (927)
ARTICLE 976. A person may represent him whose in-

heritance he has renounced. (928a)
ARTICLE 977. Heirs who repudiate their share may

not be represented. (929a)
Representation
I. Definition—Defined codaily in Article 970: a right cre-
ated by fiction of law, by virtue of which the representative is
raised to the place and the degree of the person represented,
and acquires the rights which the latter would have if he were
living or if he could have inherited.
Two Criticisms—
1. The term “representation.”—It has been suggested
that a better term to call this legal process is ei-
ther hereditary subrogation or successional subro-
gation, because the person inheriting in another’s
stead actually represents no one and truly suc-
ceeds in his own right. (Vide JBL Reyes, Reflec-
tions on the Reform of Hereditary Succession, op.
cit., p. 283).
2. “Fiction of Law”.—The definition of representation

as a right created by fiction of law is criticized as
inaccurate: ‘The law has ample authority to pre-
determine who are to be called to inherit; It needs
no resort to fictions, but to merely make use of its
power to designate those who are to take the in-
heritance. . .” (JBL Reyes, op. cit., p. 284).
II. Instances when representation operates:

A. Predecease
B. Incapacity or Unworthiness
C. Disinheritance
Vide Articles 981, 1035, and 923, infra

Instance when Representation Never Operates: Renunciation
(Vide Article 977, supra)
III. In what kinds of succession representation operates:

A. The legitime
[Note: There is no express provision on representation in
the legitime, except Article 923, in case of disinheritance.]
B. Intestacy
[Note: There is no representation in testamentary succes-
sion. Cf. Art. 856 ]
IV. In what lines does representation obtain:

A. With respect to the legitime — in the direct descend-
ing line only (Article 972).
B. With respect to intestacy—

1. in the direct descending line (Article 972)
2. in one instance in the collateral; Le., nephews and
nieces representing brothers and sisters of the
deceased (Article 975).
V. A. Representation by illegitimate children:
1. if the child to be represented is legitimate—only
legitimate children/descendants can represent
him (Vide Article 992, infra)
2. if the child to be represented is illegitimate—both
legitimate and illegitimate children/descendants
can represent him (Articles 902, 989, 990).
Thus:
Ai A2
Should A and B both predecease X, only Ai can represent

A, but both Bi and B2 can represent B.
B. Representation of and by an adopted child.—An

adopted can neither represent nor be represented.
Teotico vs. Del Val

13 SCRA 406 (1965)
Maria Mortera y Balsalobre Vda. de Aguirre died

on July 14, 1955 In the City of Manila leaving proper-
ties worth P600,000.00. She left a will written In
Spanish which she executed at her residence at No. 2
Legarda St., Quiapo, Manila. She affixed her signa-
ture at the bottom of the will and on the left margin of
each and every page thereof in the presence of Pilar
Borja, Pilar C. Sanchez, and Modesto Formilleza, who
in turn affixed their signatures below the attestation
clause and on the left margin of each and every page
of the will In the presence of the testatrix and of each
other. Said will was acknowledged before Notary Pub-
lic Niceforo S. Agaton by the testatrix and her wit-
nesses.
In said will the testatrix made the following pre-
liminary statement: that she was possessed of the full
use of her mental faculties; that she was free from il-
legal pressure or influence of any kind from the bene-
ficiaries of the will and from any influence of fear or
threat; that she freely and spontaneously executed
said will and that she had neither ascendants nor de-
scendants of any kind such that she could freely dis-
pose of all her estate.
Among the many legacies and devises made in
the will was one of P20.000.00 to Rene A. Teotico,
married to the testatrix’s niece named Josefina
Mortera. To said spouses the testatrix left the usu-
fruct of her interest in the Calvo building, while the
naked ownership thereof she left in equal parts to her
grandchildren who are the legitimate children of said
spouses. The testatrix also instituted Josefina Mortera
as her sole and universal heir to all the remainder of
her properties not otherwise disposed of in the will.
On July 17, 1955, Vicente B. Teotico filed a peti-
tion for the probate of the will before the Court of First
Instance of Manila which was set for hearing on Sep-
tember 3, 1955 after the requisite publication and

service to all parties concerned.
Ana del Val Chan, claiming to be an adopted
child of Francisca Mortera, a deceased sister of the
testatrix, as well as an acknowledged natural child of
Jose Mortera, a deceased brother of the same testa-
trix, filed on September 2, 1955 an opposition to the
probate of the will alleging the following grounds: (1)
said will was not executed as required by law; (2) the
testatrix was physically and mentally incapable to
execute the will at the time of its execution; and (3)
the will was executed under duress, threat or influ-
ence of fear.
Vicente B. Teotico, filed a motion to dismiss the
opposition alleging that the oppositor had no legal
personality to intervene. The probate court, after due
hearing, allowed the oppositor to intervene as an
adopted child of Francisca Mortera, and on June 17,
1959, the oppositor amended her opposition by alleg-
ing the additional ground that the will is inoperative
as to the share of Dr. Rene Teotico because the latter
was the physician who took care of the testatrix dur-
ing her last illness.
After the parties had presented their evidence,
the probate court rendered its decision on November
10, 1960, admitting the will to probate but declaring
the disposition made in favor of Rene Teotico void
with the statement that the portion to be vacated by
the annulment should pass to the testatrix's heirs by
way of intestate succession.
xxx xxx xxx
xxx, both petitioner and oppositor appealed from
the decision, the former from that portion which nulli-
fies the legacy in favor of Dr. Rene Teotico and de-
clares the vacated portion as subject of succession in
favor of the legal heirs, and the latter from that por-
tion which admits the will to probate. And in this in-
stance both petitioner and oppositor assign several
errors which, stripped of non-essentials, may be
boiled down to the following: (1) Has oppositor Ana del

Val Chan the right to intervene in this proceeding?
xxx xxx xxx
1. It is a well-settled rule that in order that a
person may be allowed to intervene in a probate pro-
ceeding he must have an interest in the estate, or in
the will, or in the property to be affected by it either as
executor or as a claimant of the estate (Ngo The Hua
v. Chung Kiat Hua, et al., L-17091, September 30,
1963); and an interested party has been defined as
one who would be benefited by the estate such as an
heir or one who has a claim against the estate like a
creditor.
xxx xxx xxx
The question now may be asked: Has oppositor
any interest in any of the provisions of the will, and,
in the negative, would she acquire any right to the es-
tate in the event that the will is denied probate?
Under the terms of the will, oppositor has no
right to intervene because she has no interest in the
estate either as heir, executor, or administrator, nor
does she have any claim to any property affected by
the will, because it nowhere appears therein any pro-
vision designating her as heir, legatee or devisee of
any portion of the estate. She has also no interest in
the will either as administratrix or executrix. Neither
has she any claim against any portion of the estate
because she is not a co-owner thereof, and while she
previously had an interest in the Calvo building lo-
cated in Escolta, she had already disposed of it long
before the execution of the will.
In the supposition that, the will is denied pro-
bate, would the oppositor acquire any interest in any
portion of the estate left by the testatrix? She would
acquire such right only if she were a legal heir of the
deceased, but she is not under our Civil Code. It is
true that oppositor claims to be an acknowledged
natural child of Jose Mortera, a deceased brother of
the deceased and also an adopted daughter of
Francisca Mortera, a deceased sister of the testatrix,
but such claim cannot give her any comfort for, even
if it be true, the law does not give her any right to
succeed to the estate of the deceased sister of both
Jose Mortera and Francisca Mortera. And this is so
because being an illegitimate child she is prohibited
by law from succeeding to the legitimate relatives of
her natural father.
xxx xxx xxx
The oppositor cannot also derive comfort from
the fact that she is an adopted child of Francisca
Mortera because under our law the relationship es-
tablished by adoption is limited solely to the adopter
and the adopted and does not extend to the relatives
of the adopting parents or of the adopted child except
only as expressly provided for by law. Hence, no rela-
tionship is created between the adopted and the col-
laterals of the adopting parents. As a consequence,
the adopted is an heir of the adopter but not of the
relatives of the adopter.
—“The relationship established by the adoption,
however, is limited to the adopting parent, and does
not extend to his other relatives, except as expressly
provided by law. Thus, the adopted child cannot be
considered as a relative of the ascendants and collat-
erals of the adopting parents, nor of the legitimate
children which they may have after the adoption, ex-
cept that the law imposes certain impediments to
marriage by reason of adoption. Neither are the chil-
dren of the adopted considered as descendants of the
adopter. The relationship created is exclusively be-
tween the adopter and the adopted, and does not ex-
tend to the relatives either.” (Tolentino, Civil Code of
the Philippines, Vol. 1, p. 652)
“Relationship by adoption is limited to adopter
and adopted, and does not extend to other members
of the family of either; but the adopted is prohibited to
marry the children of the adopter to avoid scandal.”
(An Outline of Philippine Civil Law by Justice Jose
B. L. Reyes and Ricardo C. Puno, Vol. 1, p. 313; See
also Caguioa, Comments and Cases on Civil Law,
1955, Vol. 1, pp. 312-313; Paras, Civil Code of the

Philippines, 1959 ed., Vol. 1, p. 515)
It thus appears that the oppositor has no right to inter-

vene either as testamentary or as legal heir in this probate pro-
ceeding contrary to the ruling of the court a quo.
The rationale for the rule barring an adopted from repre-
senting and being represented is that the legal relationship cre-
ated by adoption is strictly between the adopter and the
adopted. It does not extend to the relatives of either party.
Vide also Sayson v. CA, 205 SCRA. 321 (1992), infra, pp.
495-502.
C. Representation by a renouncer.—Although a re-

nouncer cannot be represented, he can represent
the person whose inheritance he has renounced (Ar-
ticle 976). The reason for this is found in Article
971 (2nd sentence): “The representative does not
succeed the person represented but the one whom
the person represented would have succeeded.”
VI. How Representation operates:
Per stirpes—the representative or representatives receive
only what the person represented would have received. If there
are more than one representative in the same degree, then di-
vide the portion equally, without prejudice to the distinction
between legitimate and illegitimate children, when applicable.
VII. Rules on Qualification:
A. The representative must be qualified to succeed the
decedent (Article 973). Again, the rationale is found
in the second sentence of Article 971, supra.
B. The representative need not be qualified to succeed
the person represented (Article 971).
C. The person represented need not be qualified to
succeed the decedent—in fact, the reason why rep-
resentation is taking place is that the person repre-
sented is not qualified, because of predecease, or in-
capacity, or disinheritance.
VIII. Representation by grandchildren and Represen-

tation by nephews/nieces: Difference in Rule
A. If all the children are disqualified—the grand-
children still inherit by representation (Article 982).
B. If all the brothers/sisters are disqualified—the
nephews/nieces inherit per capita (Article 975).
Note: If only some, not all children or brothers/sisters

are disqualified, the rule is the same.
IX. Some Suggestions:
Two points regarding representation need to be clarified by
means of more explicit provisions:
A. What are the occasions or causes for the operation
of representation?
B. In what kinds of succession does representation op-
erate?
X. A problem on Representation:
X has five legitimate children, three of whom have children
of their own, thus:
X
1. Supposing X makes a will instituting all his 5

children to the free portion; then C predeceases
him, D is unworthy to succeed, and upon his
death E renounces. How is X’s estate worth
P600,000.00 to be apportioned?
2. Supposing X dies intestate, all the other facts be-
ing the same, how is Xs estate to be apportioned?
SECTION 2.—ORDER OF INTESTATE SUCCESSION
INTESTATE HEIRS
I. Legitimate Children/Descendants
II. Illegitimate Children/Descendants
III. Legitimate Parents/Ascendants
IV. Illegitimate Parents
V. Surviving Spouse
VI. Brothers, Sisters, Nephews, Nieces
VII. Other Collaterals—to the 5th degree
VIII. State
Note: The first 5 classes of intestate heirs are also com-
pulsory heirs. Consequently:
1. there is, to a considerable extent, an overlapping

of compulsory and intestate succession; Le., the
legitime and the intestate portions merge.
2. there is a very close parallel between the rules of
compulsory succession and those of intestate
succession.
INTESTACY
Rules of Exclusion and Concurrence

Note: Children include, in proper cases, other des-
cendants; and parents, other ascendants.
I. Legitimate children:
1) Exclude parents, collaterals & State
2) Concur with surviving spouse & illegitimate chil-
dren
3) Are excluded by no one
II. Illegitimate children:
1) Exclude illegitimate parents, collaterals, & State
2) Concur with surviving spouse, legitimate children,
& legitimate parents
3) Are excluded by no one
III. Legitimate parents:
1) Exclude collaterals & State
2) Concur with illegitimate children & surviving
spouse
3) Are excluded by legitimate children
IV. Illegitimate parents:
1) Exclude collaterals & State
2) Concur with surviving spouse
3) Are excluded by legitimate children & illegitimate
children
V. Surviving Spouse:
1) Excludes collaterals other than brothers, sisters,
nephews & nieces, & State
2) Concurs with legitimate children, illegitimate chil-

dren, legitimate parents, illegitimate parents,
brothers, sisters, nephews & nieces
3) Is excluded by no one
VI. Brothers & Sisters, Nephews & Nieces:
1) Exclude all other collaterals & the State
2) Concur with surviving spouse

3) Are excluded by legitimate children, illegitimate
children, legitimate parents, and illegitimate par-
ents
VII. Other Collaterals:
1) Exclude collaterals in remoter degrees & the State
2) Concur with collaterals in the same degree
3) Are excluded by legitimate children, illegitimate
children, legitimate parents, illegitimate parents,
surviving spouse, brothers & sisters, and neph-
ews & nieces
VIII. State:
1) Excludes no one
2) Concurs with no one
3) Is excluded by everyone
Combinations in Intestate Succession (found passim in
Article 978, et seq.):
1. legitimate children alone—979
the whole estate, divided equally.
2. legitimate children & illegitimate children—983 &
176 (FC)
the whole estate, each illegitimate child getting
1/2 the share of one legitimate child.
3. legitimate children & surviving spouse—996
the whole estate, divided equally (the surviving
spouse counted as one legitimate child).
4. legitimate children, surviving spouse & illegitimate
children—999 & 176 (FC)
the whole estate, the surviving spouse being
counted as one legitimate child and each illegiti-
mate child getting 1/2 the share of one legitimate
child.
5. legitimate parents alone—985
the whole estate, divided equally
6. legitimate ascendants (other than parents) alone—
987
the whole estate, observing, in proper cases, the
rule of division by line
7. legitimate parents & illegitimate children—991
legitimate parents—1/2 of the estate
illegitimate children—1/2 of the estate
8. legitimate parents & surviving spouse—997
surviving spouse—1/2 of the estate
9. legitimate parents, surviving spouse, illegitimate
children—1000
10. illegitimate children alone—988
the whole estate, divided equally
11. illegitimate children & surviving spouse—998
12. surviving spouse alone—994 & 995
the whole estate
13. surviving spouse & illegitimate parents—no article
governing
surviving spouse—1/2 of)
the estate ) by analogy
illegitimate parents—1/2 ) with Art. 997
of the estate )
14. surviving spouse & legitimate brothers & sisters,

nephews & nieces—1001
legitimate brothers, sisters, nephews, nieces—1/2
of the estate (the nephews and nieces inheriting
by representation, in the proper cases)
15. surviving spouse & illegitimate brothers & sisters,
nephews & nieces—994
illegitimate brothers, sisters, nephews, nieces—
1/2 of the estate (the nephews and nieces inherit-
ing by representation, in the proper cases)
Who are the illegitimate brothers and sisters?
Cf. comments under Article 994 [infra).
16. illegitimate parents alone—993
the whole estate
17. illegitimate parents & children of any kind—cf. 993
illegitimate parents—excluded
children-inherit in accordance with Nos. 1, 2, &
10, supra
18. legitimate brothers & sisters alone—1004 & 1006
the whole estate, with a brother/sister of the half-
blood inheriting 1/2 the share of a brother/sister
of the full-blood.
19. legitimate brothers & sisters, nephews & nieces—
1005 & 1008
the whole estate, observing the 2:1 proportion of
full- and half-blood fraternity (No. 18, supra) and
the nephews and nieces inheriting by represen-
tation in the proper cases
20. nephews & nieces with uncles & aunts—1009 by

inference uncles and aunts-excluded [Bacayo v.
Borromeo, 145 SCRA 986 [1986]) nephews and
nieces inheriting in accordance with No. 23, infra
21. illegitimate brothers and sisters alone—no article

governing
the whole estate, observing the 2:1 proportion of
full- and half- blood fraternity—by analogy with
No. 18, supra
22. illegitimate brothers, sisters, nephews, and nieces—
no article governing
the whole estate, as in No. 19, supra, by analogy
23. nephews & nieces alone—975 & 1008
the whole estate, per capita, but observing the 2:1
proportion for the full- and the half- blood
24. other collaterals—1009 & 1010
the whole estate, per capita, the nearer in degree
excluding the more remote
25. State—1011
the whole estate
1. Assignment & disposition of decedent’s assets:
a. If decedent was a resident of the Philippines at
any time:
i) Personal property—to municipality of last
residence;
ii) Real property—where situated
b. If decedent never a resident of the Philippines:
Personal and real property—where respec-
tively situated
2. How property is to be used:
a. For the benefit of public educational and chari-
table institutions in the respective munici-
palities/cities;
b. Alternatively, at the instance of an interested
party, or motu proprio, court may order crea-
tion of a permanent trust for the benefit of the
institutions concerned.
SUBSECTION 1 .—DESCENDING DIRECT LINE
ARTICLE 978. Succession pertains, in the first place,

to the descending direct line. (930)
This has been discussed under Article 962, supra.
ARTICLE 979. Legitimate children and their descen-

dants succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come
from different marriages.
An adopted child succeeds to the property of the
adopting parents in the same manner as a legitimate child.
(931a)
I. Vide No. 1, outline of Combinations in Intestate Suc-

cession, supra.
II. The right of an adopted child in relation to his adopter

is now governed by Secs. 17 and 18 of R.A. 8552, which lays
down the same rule as the second paragraph of this article.
III. As to the question of succession by the adopted from
his biological parents, vide comments on page 310.
Sayson v. Court of Appeals

205 SCRA 321 (1992)
CRUZ, J.:
At issue in this case is the status of the private

respondents and their capacity to inherit from their
alleged parents and grandparents. The petitioners
deny them that right, asserting it for themselves to
the exclusion of all others.
The relevant genealogical facts are as follows.

Eleno and Rafaela Sayson begot five children,
namely, Mauricio, Rosario, Basilisa, Remedios and
Teodoro. Eleno died on November 10, 1952, and
Rafaela on May 15, 1976. Teodoro, who had married
Isabel Bautista, died on March 23, 1972. His wife died
nine years later, on March 26, 1981. Their properties

were left in the possession of Delia, Edmundo, and
Doribel, all sumamed Sayson, who claim to be their
children.
On April 25, 1983, Mauricio, Rosario, Basilisa,
and Remedios, together with Juana C. Bautista, Isa-
bel’s mother, filed a complaint for partition and ac-
counting of the intestate estate of Teodoro and Isabel
Sayson. It was docketed as Civil Case No. 1030 in
Branch 13 of the Regional Trial Court of Albay. The
action was resisted by Delia, Edmundo and Doribel
Sayson, who alleged successional rights to the dis-
puted estate as the decedent’s lawful descendants.
On July 11, 1983, Delia, Edmundo and Doribel
filed their own complaint, this time for the accounting
and partition of the intestate estate of Eleno and
Rafaela Sayson, against the couple’s four surviving
children. This was docketed as Civil Case No. 1042 in
the Regional Trial Court of Albay, Branch 12. The
complainants asserted the defense they raised in Civil
Case No. 1030, to wit, that Delia and Edmundo were
the adopted children and Doribel was the legitimate
daughter of Teodoro and Isabel. As such, they were
entitled to inherit Teodoro’s share in his parents’ es-
tate by right of representation.
Both cases were decided in favor of the herein
private respondents on the basis of practically the
same evidence.
Judge Rafael P. Santelices declared in his deci-
sion dated May 26, 1986, that Delia and Edmundo
were the legally adopted children of Teodoro and Isa-
bel Sayson by virtue of the decree of adoption dated
March 9, 1967. Doribel was their legitimate daughter
as evidenced by her birth certificate dated February
27, 1967. Consequently, the three children were enti-
tled to inherit from Eleno and Rafaela by right of rep-
resentation.
In his decision dated September 30, 1986,
Judge Jose S. Sanez dismissed Civil Case No. 1030,
holding that the defendants, being the legitimate heirs
of Teodoro and Isabel as established by the aforemen-

tioned evidence, excluded the plaintiffs from sharing
in their estate.
Both cases were appealed to the Court of Ap-
peals, where they were consolidated. In its own deci-
sion dated February 28, 1989, the respondent court
disposed as follows:
WHEREFORE, in Civil Case No. 1030 (CA-
G.R. No. 11541), the appealed decision is hereby
AFFIRMED. In Civil Case No. 1042, (CA-G.R. No.
12464), the appealed decision is MODIFIED in
that Delia and Edmundo Sayson are disqualified
from inheriting from the estate of the deceased
spouses Eleno and Rafaela Sayson, but is af-
firmed in all other respects.
SO ORDERED.
That judgment is now before us in this petition
for review by certiorari. Reversal of the respondent
court is sought on the ground that it disregarded the
evidence of the petitioners and misapplied the perti-
nent law and jurisprudence when it declared the pri-
vate respondents as the exclusive heirs of Teodoro
and Isabel Sayson.
The contention of the petitioners is that Delia
and Edmundo were not legally adopted because
Doribel had already been bom on February 27, 1967,
when the decree of adoption was issued on March 9,
1967. The birth of Doribel disqualified her parents
from adopting. The pertinent provision is Article 335
of the Civil Code, naming among those who cannot
adopt “(1) Those who have legitimate, legitimated, ac-
knowledged natural children, or natural children by
legal fiction.
Curiously enough, the petitioners also argue
that Doribel herself is not the legitimate daughter of
Teodoro and Isabel but was in fact bom to one Edita
Abila, who manifested in a petition for guardianship
of the child that she was her natural mother.
The inconsistency of this position is immediately

apparent. The petitioners seek to annul the adoption
of Delia and Edmundo on the ground that Teodoro
and Isabel already had a legitimate daughter at the
time but in the same breath try to demolish this ar-
gument by denying that Doribel was bom to the cou-
ple.
On top of this, there is the vital question of time-
liness. It is too late now to challenge the decree of
adoption, years after it became final and executory.
That was way back in 1967. Assuming that the peti-
tioners were proper parties, what they should have
done was seasonably appeal the decree of adoption,
pointing to the birth of Doribel that disqualified
Teodoro and Isabel from adopting Delia and Ed-
mundo. They did not. In fact, they should have done
this earlier, before the decree of adoption was issued.
They did not, although Mauricio claimed he had per-
sonal knowledge of such birth.
As the respondent court correctly observed:
When Doribel was bom on February 27,
1967, or about TEN (10) days before the issu-
ance of the Order of Adoption, the petitioners
could have notified the court about the fact of
birth of DORIBEL and perhaps withdrew the pe-
tition or perhaps petitioners could have filed a
petition for the revocation or rescission of the
adoption (although the birth of a child is not one
of those provided by law for the revocation or re-
scission of an adoption). The court is of the con-
sidered opinion that the adoption of the plain-
tiffs DELIA and EDMUNDO SAYSON is valid,
outstanding and binding to the present, the
same is not having been revoked or rescinded.
Not having any information of Doribel's birth to
Teodoro and Isabel Sayson, the trial judge cannot be
faulted for granting the petition for adoption on the
finding inter alia that the adopting parents were not
disqualified.
A no less important argument against the peti-

tioners is that their challenge to the validity of the
adoption cannot be made collaterally, as in their ac-
tion for partition, but in a direct proceeding frontally
addressing the issue.
The settled rule is that a finding that the requi-
site jurisdictional facts exists, whether erroneous or
not, cannot be questioned in a collateral proceeding, for
a presumption arises in such cases where the validity
of the judgment is thus attacked that the necessary
jurisdictional facts were proven [Freemen on Judg-
ments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis sup-
plied.)
In the case of Santos v. Aranzanso, this Court
declared:
Anent this point, the rulings are summed
up in 2 American Jurisprudence, 2nd Series,
Adoption, Sec. 75, p. 922, thus:
An adoption order implies the finding of
the necessary facts and the burden of proof is
on the party attacking it; it cannot be considered
void merely because the fact needed to show
statutory compliance is obscure. While a judicial
determination of some particular fact, such as
the abandonment of his next of kin to the adop-
tion, may be essential to the exercise of jurisdic-
tion to enter the order of adoption, this does not
make it essential to the jurisdictional validity of
the decree that the fact be determined upon
proper evidence, or necessarily in accordance
with the truth; a mere error cannot affect the ju-
risdiction, and the determination must stand
until reversed on appeal, and hence cannot be
collaterally attacked. If this were not the rule, the
status of adopted children would always be un-
certain, since the evidence might not be the
same at all investigations, and might be re-
garded with different effect by different tribu-
nals, and the adoption might be held by one
court to have been valid, while another court
would hold it to have been of no avail. (Empha-
sis supplied.)
On the question of Doribel’s legitimacy, we hold
that the findings of the trial courts as affirmed by the
respondent court must be sustained. Doribel’s birth
certificate is a formidable piece of evidence. It is one of
the prescribed means of recognition under Article 265
of the Civil Code and Article 172 of the Family Code. It
is true, as the petitioners stress, that the birth certifi-
cate offers only prima facie evidence of filiation and
may be refuted by contrary evidence. However, such
evidence is lacking in the case at bar.
Mauricio’s testimony that he was present when
Doribel was bom to Edita Abila was understandably
suspect, coming as it did from an interested party.
The affidavit of Abila denying her earlier statement in
the petition for the guardianship of Doribel is of
course hearsay, let alone the fact that it was never of-
fered in evidence in the lower courts. Even without it,
however, the birth certificate must be upheld in line
with Legaspi v. Court of Appeals, where we ruled that
“the evidentiaiy nature of public documents must be
sustained in the absence of strong, complete and con-
clusive proof of its falsity or nullity.”
Another reason why the petitioners’ challenge
must fail is the impropriety of the present proceedings
for that purpose. Doribel’s legitimacy cannot be ques-
tioned in a complaint for partition and accounting but
in a direct action seasonably filed by the proper party.
The presumption of legitimacy in the Civil Code
xxx does not have this purely evidential character. It
serves a more fundamental purpose. It actually fixes a
civil status for the child bom in wedlock, and that
civil status cannot be attacked collaterally. The legiti-
macy of the child can be impugned only in a direct ac-
tion brought for that purpose, by the proper parties,
and within the period limited by law.
The legitimacy of the child cannot be contested
by way of defense or as a collateral issue in another
action for a different purpose, x x x . (Emphasis sup-
plied.)
In consequence of the above observations, we

hold that Doribel, as the legitimate daughter of
Teodoro and Isabel Sayson, and Delia and Edmundo,
as their adopted children, are the exclusive heirs to
the intestate estate of the deceased couple, conforma-
bly to the following Article 979 of the Civil Code:
Art. 979. Legitimate children and their de-
scendants succeed the parents and other ascen-
dants, without distinction as to sex or age, and
even if they should come from different mar-
riages.
An adopted child succeeds to the property
of the adopting parents in the same manner as
legitimate child.
The philosophy underlying this article is that a
person’s love descends first to his children and grand-
children before it ascends to his parents and thereaf-
ter spreads among his collateral relatives. It is also
supposed that one of his purposes in acquiring prop-
erties is to leave them eventually to his children as a
token of his love for them and as a provision for their
continued care even after he is gone from this earth.
Coming now to the right of representation, we
stress first the following pertinent provisions of the
Civil Code:
Art. 970. Representation is a right created
by fiction of law, by virtue of which the represen-
tative is raised to the place and the decree of the
person represented, and acquires the rights
which the latter would have if he were living or if
he could have inherited.
Art. 971. The representative is called to the
succession by the law and not by the person
represented. The representative does not suc-
ceed the person represented but the one whom
the person represented would have succeeded.
Art. 981. Should children of the deceased
and descendants of other children who are dead,
survive, the former shall inherit in their own
right, and the latter by right of representation.

There is no question that as the legitimate
daughter of Teodoro and thus the granddaughter of
Eleno and Rafaela, Doribel has a right to represent
her deceased father in the distribution of the intestate
estate of her grandparents. Under Article 981, quoted
above, she is entitled to the share her father would
have directly inherited had he survived, which shall
be equal to the shares of her grandparents’ other
children.
But a different conclusion must be reached in
the case of Delia and Edmundo, to whom the grand-
parents were total strangers. While it is true that the
adopted child shall be deemed to be a legitimate child
and have the same right as the latter, these rights do
not include the right of representation. The relation-
ship created by the adoption is between only the
adopting parents and the adopted child and does not
extend to the blood relatives of either party.
In sum, we agree with the lower courts that
Delia and Edmundo as the adopted children and
Doribel as the legitimate daughter of Teodoro Sayson
and Isabel Bautista, are their exclusive heirs and are
under no obligation to share the estate of their par-
ents with the petitioners. The Court of Appeals was
correct however, in holding that only Doribel has the
right of representation in the inheritance of her
grandparents’ intestate estate, the other private re-
spondents being only the adoptive children of the de-
ceased Teodoro.
WHEREFORE, the petition is DENIED, and the
challenged decision of the Court of Appeals is AF-
FIRMED in toto, with costs against the petitioners.
[Note: The private respondents, as well as the Court,

seem to have overlooked the fact that as far as Eleno’s estate
was concerned, there was no question of representation, since
Teadoro survived Eleno.]
ARTICLE 980. The children of the deceased shall al-

ways inherit, from him in their own right, dividing the in-
heritance in equal shares. (932)
ARTICLE 981. Should children of the deceased and
descendants of other children who are dead, survive, the
former shall inherit in their own right, and the latter by
right of representation. (934a)
ARTICLE 982. The grandchildren and other descen-
dants shall inherit by right of representation, and if any
one of them should have died, leaving several heirs, the
portion pertaining to him shall be divided among the latter
in equal portions. (933)
Vide No. 1, outline of Combinations in Intestate Succes-
sion, and outline of Representation, supra.
ARTICLE 983. If illegitimate children survive with le-

gitimate children, the shares of the former shall be in the
proportions prescribed by Article 895. (n)
cession.
II. The proportion of the shares of legitimate and illegiti-
mate children has been simplified to 2:1 by virtue of the
amendments introduced by Articles 163 and 176 of the Family
Code.
III. In this combination, care should be taken lest the le-
gitimes of the legitimate children be impaired. Consequently, a
two-step process should be observed:
1. Segregate the legitimes of the children—both le-
gitimate and illegitimate;
2. If any residue is left, apportion it in the propor-
tion of 2:1.
It is possible—depending on the number of legitimates and
illegitimates—that the estate may not even be sufficient to sat-
isfy the legitimes, in which case the second step in the process
will not even be feasible; in fact, in such a case, the legitimes of

the illegitimates will have to be reduced pro rata.
ARTICLE 984. In case of the death of an adopted

child, leaving no children or descendants, his parents and
relatives by consanguinity and not by adoption, shall be his
legal heirs, (n)
Repealed by Secs. 17 and 18, R.A. 8552.
SUBSECTION 2 .—ASCENDING DIRECT LINE
ARTICLE 985. In default of legitimate children and

descendants of the deceased, his parents and ascendants
shall inherit from him, to the exclusion of collateral rela-
tives. (935a)
ARTICLE 986. The father and mother, if living shall
inherit in equal shares.
Should only one of them survive, he or she shall suc-
ceed to the entire estate of the child. (936)
sion.
For adopted children, vide Secs. 17 and 18, R.A. 8552.
ARTICLE 987. In default of the father and mother,

the ascendants nearest in degree shall inherit.
Should there be more than one of equal degree belong-
ing to the same line they shall divide the inheritance per
capita; should they be of different lines but of equal degree,
one-half shall go to the paternal and the other half to the
maternal ascendants. In each line the division shall be
made per capita. (937)
Vide No. 6, outline of Combinations in Intestate Suc-
cession.
SUBSECTION 3.—ILLEGITIMATE CHILDREN
ARTICLE 988. In the absence of legitimate descen-

dants or ascendants, the illegitimate children shall succeed
to the entire estate of the deceased. (939a)
Vide No. 10, outline of Combinations in Intestate Suc-

cession.
ARTICLE 989. If, together with illegitimate children,

there should survive descendants of another illegitimate
child who is dead, the former shall succeed in their own
right and the latter by right of representation. (940a)
ARTICLE 990. The hereditary rights granted by the

two preceding articles to illegitimate children shall be
transmitted upon their death to their descendants, who
shall inherit by right of representation from their deceased
grandparent. (941a)
The descendants succeed not only by representation, but

by their own right in proper cases.
Vide outline of Representation, supra.
ARTICLE 991. If legitimate ascendants are left, the il-

legitimate children shall divide the inheritance with them,
taking one-half of the estate, whatever be the number of
the ascendants or of the illegitimate children. (942, 841a)

sion.
ARTICLE 992. An illegitimate child has no right to

inherit ab intestato from the legitimate children and rela-
tives of his father or mother; nor shall such children or
relatives inherit in the same manner from the illegitimate
child. (943a)
This is the well-known, and much criticized, successional

barrier between the legitimate and the illegitimate relatives of a
decedent.
The application and the legal underpinnings of this pro-
vision have been adequately explained by the Supreme Court in
various decisions.
Corpus vs. Administrator

85 SCRA 567 (1978)
AQUINO, J.:
Teodoro R. Yangco died in Manila on April 20,

1939 at the age of seventy-seven years. His will dated
August 29, 1934 was probated in the Court of First
Instance of Manila in Special Proceeding No. 54863.
The decree of probate was affirmed in this Court’s
1941 decision in Corpus vs. Yangco, 73 Phil. 527. The
complete text of the will is quoted in that decision.
Yangco had no forced heirs. At the time of his
death, his nearest relatives were (1) his half brother,
Luis R. Yangco, (2) his half sister, Paz Yangco, the
wife of Miguel Ossorio, (3) Amalia Corpus, Jose A.V.
Corpus, and (4) Juana (Juanita) Corpus, the daughter
of his half brother Jose Corpus. Juanita died in Octo-
ber, 1944 at Palauig, Zambales.
Teodoro R. Yangco was the son of Luis Rafael
Yangco and Ramona Arguelles, the widow of Tomas
Corpus. Before her union with Luis Rafael Yangco,
Ramona had begotten five children with Tomas Cor-
pus, two of whom were the aforenamed Pablo Corpus
and Jose Corpus.
xxx xxx xxx
On October 5, 1951, Tomas Corpus, as the sole
heir of Juanita Corpus, filed an action in the Court of
First Instance of Manila to recover her supposed
share in Yangco’s intestate estate. He alleged in his
complaint that the dispositions in Yangco's will im-
posing perpetual prohibitions upon alienation ren-
dered it void under Article 785 of the old Civil Code
and that the 1949 partition Is invalid and, therefore,

the decedent’s estate should be distributed according
to the rules on intestacy.
The trial court in its decision of July 2, 1956 dis-
missed the action on the grounds of res judicata and
laches. It held that the intrinsic validity of Yangco’s
will was passed upon in its order dated December 26,
1946 in Special Proceeding No. 54863 approving the
project of partition for the testator’s estate.
Tomas Corpus appealed to the Court of Appeals
which in its resolution dated January 23, 1964 in CA-
G.R. No. 18720-R certified the appeal to this Court
because it involves real property valued at more than
fifty thousand pesos (Sec. 17(5], Judiciary Law before
it was amended by Republic Act No. 2613).
Appellant Corpus contends in this appeal that
the trial court erred in holding (1) that Teodoro R.
Yangco was a natural child, (2) that his will had been
duly legalized, and (3) that plaintiffs action is barred
by res judicata and laches.
In the disposition of this appeal, it is not neces-
sary to resolve whether Yangco’s will had been duly
legalized and whether the action of Tomas Corpus is
barred by res judicata and laches. The appeal may be
resolved by determining whether Juanita Corpus, the
mother of appellant Tomas Corpus, was a legal heir of
Yangco. Has Tomas Corpus a cause of action to re-
cover his mother’s supposed intestate share in
Yangco’s estate?
To answer that question, it is necessary to ascer-
tain Yangco's filiation. The trial court found that
Yangco “a su muerte tambien le sbrevivieron Luis y
Paz appellidados Yangco, hermanos naturales recono-
cidos por su padre natural Luis R. Yangco.” The basis
of the trial court’s conclusion that Teodoro R. Yangco
was an acknowledged natural child and not a legiti-
mate child was the statement in the will of his father,
Luis Rafael Yangco, dated June 14, 1907, that
Teodoro and his three other children were his ac-
knowledged natural children. His exact words are:
508 Jottings and Jurisprudence ^992
“Primera. Declaro que tengo cuatro hijos

naturales reconocidos, llamados Teodoro, Paz,
Luisa y Luis, los cuales son mis unicos he-
rederos, forzosos.” (Exh. 1 in Testate Estate of
Teodoro Yangco).
That will was attested by Rafael del Pan, Fran-
cisco Ortigas, Manuel Camus and Florencio Gonzales
Diez.
Appellant Corpus assails the probative value of
the will of Luis R. Yangco, identified as Exhibit I
herein, which he say is a mere copy of Exhibit 20, as
found in the record on appeal in Special Proceeding
No. 54863. He contends that it should not prevail over
the presumption of legitimacy found in Section 69,
Rule 123 of the old Rules of Court and over the
statement of Samuel W. Stagg in his biography of
Teodoro R. Yangco, that Luis Rafael Yangco made a
second marital venture with Victoria Obin, implying
that he had a first marital venture with Ramona Ar-
guelles, the mother of Teodoro.
These contentions have no merit. The authentic-
ity of the will of Luis Rafael Yangco, as reproduced in
Exhibit I herein and as copied from Exhibit 20 in the
proceeding for the probate of Teodoro R. Yangco’s will,
is incontestable. The said will is part of a public or of-
ficial judicial record.
On the other hand, the children of Ramona Ar-
guelles and Tomas Corpus are presumed to be legiti-
mate. A marriage is presumed to have taken place be-
tween Ramona and Tomas. Semper praesurrdtur pro
matrimonio. It is disputably presumed “That a man
and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage”;
that a child bom in lawful wedlock, there being no di-
vorce, absolute or from bed and board, is legitimate,”
and “that things have happened according to the or-
dinary course of nature and the ordinary habits of
life” (Sec. 5[z], [bb] and [cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged
natural child or was illegitimate and since Juanita
Corpus was the legitimate child of Jose Corpus, him-

self a legitimate child, we hold that appellant Tomas
Corpus has no cause of action for the recovery of the
supposed hereditary share of his mother, Juanita
Corpus, as a legal heir, in Yangco's estate. Juanita
Corpus was not a legal heir of Yangco because there
is no reciprocal succession between legitimate and il-
legitimate relatives. The trial court did not err in dis-
missing the complaint of Tomas Corpus.
Article 943 of the old Civil Code provides that “el
hijo natural y el legitimado no tienen derecho a
suceder abintestato a los hijos y parientes legitimos
del padre o madre que lo haya reconocido, ni ellos al
hijo natural ni al legitimado.” Article 943 “prohibits all
successory reciprocity mortis causa between legitimate
and illegitimate relatives” (6 Sanchez Roman, Civil
Code, pp. 996-997 cited in Director of Lands vs.
Aguas, 63 Phil. 279, 287. See 16 Scaevola, Codigo
Civil, 4th Ed., 455-6). xxx
Appellant Corpus concedes that if Teodoro R.
Yangco was a natural child, he (Tomas Corpus) would
have no legal personality to intervene in the distribu-
tion of Yangco’s estate (p. 8, appellant’s brief).
The rule in Article 943 is now found in Article
992 of the Civil Code x x x .
That rule is based on the theory that the ille-
gitimate child is disgracefully looked upon by the le-
gitimate family while the legitimate family is, in turn,
hated by the illegitimate child.
The law does not recognize the blood tie and
seeks to avoid further grounds of resentment (7 Man-
resa, Codigo Civil, 7th Ed., pp. 185-6).
Under Articles 944 and 945 of the Spanish Civil
Code, “if an acknowledged natural or legitimated child
should die without issue, either legitimate or acknow-
ledged, the father or mother who acknowledged such
child shall succeed to its entire estate; and if both ac-
knowledged it and are alive, they shall inherit from it
share and share alike. In default of natural ascen-
dants, natural and legitimated children shall be sue-
ceeded by their natural brothers and sisters in accor-

dance with the rules established for legitimate broth-
ers and sisters.” Hence, Teodoro R. Yangco’s half
brothers on the Corpus side, who were legitimate, had
no right to succeed to his estate under the rules of in-
testacy.
Leonardo vs. Court of Appeals

120 SCRA 890 (1983)
DE CASTRO, J.:
From the record, it appears that Francisca Reyes

who died intestate on July 12, 1942 was survived by
two (2) daughters, Maria and Silvestra Cailles, and a
grandson, Sotero Leonardo, the son of her daughter,
Pascuala Cailles who predeceased her. Sotero Leo-
nardo died in 1944, while Silvestra Cailles died in
1949 without any issue.
On October 29, 1964, petitioner Cresencio Leo-
nardo, claiming to be the son of the late Sotero Leo-
nardo, filed a complaint for ownership of properties,
sum of money and accounting in the Court of First
Instance of Rizal seeking judgment (1) to be declared
one of the lawful heirs of the deceased Francisca
Reyes, entitled to one-half share in the estate of the
said deceased jointly with defendant, private respon-
dent herein, Maria Cailles, (2) to have the properties
left by said Francisca Reyes, described in the com-
plaint, partitioned between him and defendant Maria
Cailles, and (3) to have an accounting of all the in-
come derived from said properties from the time de-
fendants took possession thereof until said account-
ing shall have been made, delivering to him his share
therein with legal interest.
Answering the complaint, private respondent
Maria Cailles asserted exclusive ownership over the
subject properties and alleged that petitioner is an il-
legitimate child who cannot succeed by right of repre-
sentation.
xxx xxx xxx

After hearing on the merits, the trial court ren-

dered judgment in favor of the petitioner.
xxx xxx xxx

From said judgment, private respondents ap-
pealed to the Court of Appeals which, as already
stated, reversed the decision of the trial court, thereby
dismissing petitioner’s complaint. Reconsideration
having been denied by the appellate court, this peti-
tion for review was filed on the following assignment
of errors:
xxx xxx xxx

“RESPONDENT COURT ERRED IN HOLDING
THAT PETITIONER, AS THE GREAT GRANDSON OF
FRANCISCA REYES, HAS NO LEGAL RIGHT TO IN-
HERIT BY REPRESENTATION.”
xxx xxx xxx

Referring to the third assignment of error, even if
it is true that petitioner is the child of Sotero Leo-
nardo, still he cannot, by right of representation,
claim a share of the estate left by the deceased
Francisca Reyes considering that, as found again by
the Court of Appeals, he was bom outside wedlock as
shown by the fact that when he was bom on Septem-
ber 13, 1938, his alleged putative father and mother
were not yet married, and what is more, his alleged
father’s first marriage was still subsisting. At most,
petitioner would be an illegitimate child who has no
right to inherit ab intestato from the legitimate chil-
dren and relatives of his father, like the deceased
Francisca Reyes. (Article 992, Civil Code of the Philip-
pines.)
Diaz vs. IAC

150 SCRA 645 (1987)
PARAS, J.:
xxx xxx xxx

It is undisputed: 1) that Felisa Pamuti Jardin is
a niece of Simona Pamuti Vda. de Santero who to-
gether with Felisa’s mother Juliana were the only le-

gitimate children of the spouses Felipe Pamuti and
Petronila Asuncion; 2) that Juliana married Simon
Jardin and out of their union were bom Felisa Pamuti
and another child who died during infancy; 3) that
Simona Pamuti Vda. de Santero is the widow of Pas-
cual Santero and the mother of Pablo Santero; 4) that
Pablo Santero was the only legitimate son of his par-
ents Pascual Santero and Simona Pamuti Vda. de
Santero; 5) that Pascual Santero died in 1970; Pablo
Santero in 1973 and Simona Santero in 1976; 6) that
Pablo Santero, at the time of his death was survived
by his mother Simona Santero and his six minor
natural children to wit: four minor children with
Anselma Diaz and two minor children with Felixberta
Pacursa.
Judge Jose Raval in his Orders dated December
1, 1976 and December 9, 1976 declared Felisa Pa-
muti Jardin as the sole legitimate heir of Simona Pa-
muti Vda. de Santero.
xxx xxx xxx
The real issue in this case may be briefly stated
as follows—who are the legal heirs of Simona Pamuti
Vda. de Santero—her niece Felisa Pamuti Jardin or
her grandchildren (the natural children of Pablo
Santero)?
The dispute at bar refers only to the intestate es-
tate of Simona Pamuti Vda. de Santero and the issue
here is whether oppositors-appellees (petitioners
herein) as illegitimate children of Pablo Santero could
inherit from Simona Pamuti Vda. de Santero, by right
of representation of their father Pablo Santero who is
a legitimate child of Simona Pamuti Vda. de Santero.
Now then what is the appropriate law on the
matter? Petitioners contend in their pleadings that
Art. 990 of the New Civil Code is the applicable law on
the case. They contend that said provision of the New
Civil Code modifies the rule in Article 941 (Old Civil
Code) and recognizes the right of representation (Art.
970) to descendants, whether legitimate or illegitimate
and that Art. 941, Spanish Civil Code denied illegiti-

mate children the right to represent their deceased
parents and inherit from their deceased grandpar-
ents, but that Rule was expressly changed and/or
amended by Art. 990, New Civil Code which expressly
grants the illegitimate children the right to represent
their deceased father (Pablo Santero) in the estate of
their grandmother (Simona Pamuti).
Petitioners’ contention hold no water. Since the
heridatary (sic) conflict refers solely to the intestate
estate of Simona Pamuti Vda. de Santero, who is the
legitimate mother of Pablo Santero, the applicable law
is the provision of Art. 992 of the Civil Code.
xxx xxx xxx
Pablo Santero is a legitimate child, he is not an
illegitimate child. On the other hand, the oppositors
(petitioners herein) are the illegitimate children of
Pablo Santero.
Article 992 of the New Civil Code provides a bar-
rier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child
and the legitimate children and relatives of the father
or mother of said legitimate child. They may have a
natural tie of blood, but this is not recognized by law
for the purposes of Art. 992. Between the legitimate
family and the illegitimate family there is presumed to
be an intervening antagonism and incompatibility.
The illegitimate child is disgracefully looked down
upon by the legitimate child; the latter considers the
privileged condition of the former, and the resources
of which it is thereby deprived; the former, in turn,
sees in the illegitimate child nothing but the product
of sin, palpable evidence of a blemish broken in life;
the law does no more than recognize this truth, by
avoiding further grounds of resentment.
Thus, petitioners herein cannot represent their
father Pablo Santero in the succession of the letter to
the intestate estate of his legitimate mother Simona
Pamuti Vda. de Santero, because of the barrier pro-
vided for under Art. 992 of the New Civil Code.
In answer to the erroneous contention of peti-

tioners that Article 941 of the Spanish Civil Code is
changed by Article 990 of the New Civil Code, We are
reproducing herewith the Reflections of the Illustrious
Hon. Justice Jose B.L. Reyes which also finds full
support from other civilists, to wit:
“In the Spanish Civil Code of 1889 the
right of representation was admitted only within
the legitimate family: so much so that Article
943 of that Code prescribed that an illegitimate
child can not inherit ab intestato from the legiti-
mate children and relatives of his father and
mother. The Civil Code of the Philippines appar-
ently adhered to this principle since it repro-
duced Article 943 of the Spanish Code in its own
Art. 992, but with fine inconsistency, in subse-
quent articles (990, 995 and 998) our Code al-
lows the hereditary portion of the illegitimate
child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992
prevents the illegitimate issue of a legitimate
child from representing him in the intestate suc-
cession of the grandparent, the illegitimate of an
illegitimate child can now do so. This difference
being indefensible and unwarranted, in the fu-
ture revision of the Civil Code we shall have to
make a choice and decide either that the ille-
gitimate issue enjoys in all cases the right of
representation, in which case Art. 992 must be
suppressed: or contrariwise maintain said article
and modify Articles 995 and 998. The first solu-
tion would be more in accord with an enlight-
ened attitude vis-a-vis illegitimate children. [Re-
flections on the Reform of Hereditary Succession,
JOURNAL of the Integrated Bar of the Philip-
pines, First Quarter, 1976, Volume 4, Number 1,
pp. 40-41).
It is therefore clear from Article 992 of the New
Civil Code that the phrase “legitimate children and
relatives of his father or mother” includes Simona
Pamuti Vda. de Santero as the word “relative” in-
eludes all the kindred of the person spoken of. The re-
cord shows that from the commencement of this case
the only parties who claimed to be the legitimate heirs
of the late Simona Pamuti Vda. de Santero are Felisa
Pamuti Jardin and the six minor natural or illegiti-
mate children of Pablo Santero. Since petitioners
herein are barred by the provisions of Article 992, the
respondent Intermediate Appellate Court did not
commit any error in holding Felisa Pamuti-Jardin to
be the sole legitimate heir to the intestate estate of the
late Simona Pamuti Vda. de Santero.
Diaz vs. IAC

182 SCRA 427 (1990)
PARAS, J.:
The decision of the Second Division of this Court

in the case of Anselma Diaz, et al. vs. Intermediate
Appellate Court, et al., G.R. No. 6574, promulgated
June 17, 1987 declaring Felisa Pamuti-Jardin to be
the sole legitimate heir to the intestate estate of the
late Simona Pamuti Vda. de Santero, and its Resolu-
tion of February 24, 1988 denying the Motion for Re-
consideration dated July 2, 1987, are being chal-
lenged in this Second Motion for Reconsideration
dated July 5, 1988. After the parties had filed their
respective pleadings, the Court, in a resolution dated
October 27, 1988, resolved to grant the request of the
petitioners for oral argument before the court en banc,
and the case was set for hearing on November 17,
1988 to resolve the question: Does the term “relatives”
in Article 992 of the New Civil Code xxx:
xxx xxx xxx
include the legitimate parents of the father or
mother of the illegitimate children?
The facts of the case, as synthesized in the as-
sailed decision, are as follows:
“It is undisputed: 1) that Felisa Pamuti
Jardin is a niece of Simona Pamuti Vda. de
Santero who together with Felisa's mother
Juliana were the only legitimate children of the

spouses Felipe Pamuti and Petronila Asuncion;
2) that Juliana married Simon Jardin and out of
their union were bom Felisa Pamuti and another
child who died during infancy; 3) that Simona
Pamuti Vda. de Santero is the widow of Pascual
Santero and the mother of Pablo Santero; 4) that
Pablo Santero was the only legitimate son of his
parents Pascual Santero and Simona Pamuti
Vda. de Santero; 5) that Pascual Santero died in
1970; Pablo Santero in 1973 and Simona
Santero in 1976; 6) that Pablo Santero, at the
time of his death was survived by his mother
Simona Santero and his six minor natural chil-
dren to wit: four minor children with Anselma
Diaz and two minor children with Felixberta
Pacursa."
Briefly stated, the real issue in the instant case
is this—who are the legal heirs of Simona Pamuti
Vda. de Santero—her niece Felisa Pamuti-Jardin or
her grandchildren (the natural children of Pablo
Santero)?
The present controversy is confined solely to the
intestate estate of Simona Pamuti Vda. de Santero. In
connection therewith, We are tasked with determining
anew whether petitioners as illegitimate children of
Pablo Santero could inherit from Simona Pamuti Vda.
de Santero, by right of representation of their father
Pablo Santero who is a legitimate child of Simona
Pamuti Vda. de Santero.
Petitioners claim that the amendment of Articles
941 and 943 of the old Civil Code (Civil Code of Spain)
by Articles 990 and 992 of the new Civil Code (Civil
Code of the Philippines) constitute a substantial and
not merely a formal change, which grants illegitimate
children certain successional rights. We do not dis-
pute the fact that the new Civil Code has given ille-
gitimate children successional rights, which rights
were never before enjoyed by them under the old Civil
Code. They were during that time merely entitled to
support. In fact, they are now considered as compul-
sory primary heirs under Article 887 of the new Civil

Code (No. 5 in the order of intestate succession).
Again, we do not deny that fact. These are only some
of the many rights granted by the new Code to ille-
gitimate children. But that is all. A careful evaluation
of the new Civil Code provisions, especially Articles
902, 982, 989 and 990, claimed by petitioners to have
conferred illegitimate children the right to represent
their parents in the inheritance of their legitimate
grandparents, would in point of fact reveal that such
right to this time does not exist.
Articles 902, 989 and 990 clearly speak of suc-
cessional rights of illegitimate children, which rights
are transmitted to their descendants upon their
death. The descendants (of these illegitimate children)
who may inherit by virtue of the right of representa-
tion may be legitimate or illegitimate. In whatever
manner, one should not overlook the fact that the
persons to be represented are themselves illegitimate.
The three named provisions are very clear on this
matter. The right of representation is not available to
illegitimate descendants of legitimate children in the
inheritance of a legitimate grandparent. It may be ar-
gued, as done by petitioners, that the illegitimate de-
scendant of a legitimate child is entitled to represent
by virtue of the provisions of Article 982, which pro-
vides that “the grandchildren and other descendants
shall inherit by right of representation.” Such a con-
clusion is erroneous. It would allow intestate succes-
sion by an illegitimate child to the legitimate parent of
his father or mother, a situation which would set at
naught the provisions of Article 992. Article 982 is in-
applicable to instant case because Article 992 prohib-
its absolutely a succession ab intestato between the il-
legitimate child and the legitimate children and rela-
tives of the father or mother. It may not be amiss to
state that Article 982 is the general rule and Article
992 the exception.
“The rules laid down in Article 982 that ‘grand-
children and other descendants shall inherit by right
of representation’ and in Article 902 that the rights of
illegitimate children xxx are transmitted upon their

death to their descendants, whether legitimate or ille-
gitimate are subject to the limitation prescribed by Ar-
ticle 992 to the end that ‘an illegitimate child has no
right to inherit ab intestato from the legitimate chil-
dren and relatives of his father or mother.’” (Amicus
Curiae’s Opinion by former Justice Minister Ricardo
C. Puno, p. 12)
“Article 992 of the New Civil Code provides a
barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child
and the legitimate children and relatives of the father
or mother of said illegitimate child. They may have a
natural tie of blood, but this is not recognized by law
for the purpose of Article 992. Between the legitimate
family and the illegitimate family there is presumed to
be an intervening antagonism and incompatibility.
The illegitimate child is disgracefully looked down
upon by the legitimate family; and the family is in
turn, hated by the illegitimate child; the latter consid-
ers the privileged condition of the former, and the re-
sources of which it is thereby deprived; the former, in
turn, sees in the illegitimate child nothing but the
product of sin, palpable evidence of a blemish broken
in life; the law does no more than recognize the truth,
by avoiding further ground of resentment.” (7 Man-
resa 110 cited in Grey v. Fabie, 40 OG (First S) No. 3,
p. 196).
According to petitioners, the commentaries of
Manresa as above-quoted are based on Articles 939 to
944 of the old Civil Code and are therefore inapplica-
ble to the new Civil Code and to the case at bar. Peti-
tioners further argue that the consistent doctrine
adopted by this Court in the cases of Llorente vs.
Rodriguez, et al., 10 Phil. 585; Centeno vs. Centeno,
52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited
by former Justice Minister Justice Puno, Justice
Caguioa, and Prof. Balane, which identically held that
an illegitimate child has no right to succeed ab intes-
tato the legitimate father or mother of his natural par-
ent (also a legitimate child himself), is already abro-
gated by the amendments made by the New Civil Code

and thus cannot be made to apply to the instant case.
Once more, We decline to agree with petitioner.
We are fully aware of certain substantial changes in
our law of succession, but there is no change whatso-
ever with respect to the provision of Article 992 of the
Civil Code. Otherwise, by the said substantial change,
Article 992, which was a reproduction of Article 943 of
the Civil Code of Spain, should have been suppressed
or at least modified to clarify the matters which are
now the subject of the present controversy. While the
new Civil Code may have granted successional rights
to illegitimate children, those articles, however, in
conjunction with Article 992, prohibit the right of rep-
resentation from being exercised where the person to
be represented is a legitimate child. Needless to say,
the determining factor is the legitimacy or illegitimacy
of the person to be represented. If the person to be
represented is an illegitimate child, then his descen-
dants, whether legitimate or illegitimate, may repre-
sent him; however, if the person to be represented is
legitimate, his illegitimate ascendants cannot repre-
sent him because the law provides that only his le-
gitimate descendants may exercise the right of repre-
sentation by reason of the barrier imposed In Article
992. In this wise, the commentaries of Manresa on
the matter in issue, even though based on the old
Civil Code, are still very much applicable to the new
Civil Code because the amendment, although sub-
stantial, did not consist of giving illegitimate children
the right to represent their natural parents (legitimate)
in the intestate succession of their grandparents (le-
gitimate). It is with the same line of reasoning that the
three aforecited cases may be said to be still applica-
ble to the instant case.
Equally important are the reflections of the Illus-
trious Hon. Justice Jose B.L. Reyes which also find
support from other civilists. We quote:
“In the Spanish Civil Code of 1889 the
right of representation was admitted only within
the legitimate family; so much so that Article
943 of that Code prescribed that an illegitimate

child can not inherit ab intestato from the legiti-
mate children and relatives of his father and
mother. The Civil Code of the Philippines appar-
ently adhered to this principle since it repro-
duced Article 943 of the Spanish Code in its own
Art. 992, but with fine inconsistency, in subse-
quent articles (990, 995 and 998) our Code al-
lows the hereditary portion of the illegitimate
child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992
prevent the illegitimate issue of a legitimate child
from representing him in the intestate succes-
sion of the grandparent, the illegitimates of an il-
legitimate child can now do so. This difference
being indefensible and unwarranted, in the fu-
ture revision of the Civil Code we shall have to
make a choice and decide either that the ille-
gitimate issue enjoys in all cases the right of
representation, in which case Art. 992 must be
suppressed; or contrariwise maintain said article
and modify Articles 992 and 998. The first solu-
tion would be more in accord with an enlight-
ened attitude vis-a-vis illegitimate children. [Re-
flections on the Reform of Hereditary Succession,
JOURNAL of the Integrated Bar of the Philip-
pines, First Quarter, 1976, Volume 4, Number 1,
pp. 40-41). (p. 7, Decision; p. 196, Rollo)
It is therefore clear from Article 992 of the new
Civil Code that the phrase “legitimate children and
relatives of his father and mother" includes Simona
Pamuti Vda. de Santero as the word “relative” is broad
enough to comprehend all the kindred of the person
spoken of. (Comment, p. 139 Rollo citing p. 2862
Bouvier’s Law Dictionary vol. II, Third Revision,
Eighth Edition) The record reveals that from the com-
mencement of this case the only parties who claimed
to be the legitimate heirs of the late Simona Pamuti
Vda. de Santero are Felisa Pamuti Jardin and the six
minor natural or illegitimate children of Pablo
Santero. Since petitioners herein are barred by the
provisions of Article 992, the respondent Intermediate
Appellate Court did not commit any error in holding

Felisa Pamuti Jardin to be the sole legitimate heir to
the intestate estate of the late Simona Pamuti Vda. de
Santero.
It is Our shared view that the word “relatives”
should be construed in its general acceptance. Amicus
Curiae Prof. Ruben Balane has this to say:
“The term relatives, although used many
times in the Code, is not defined by it. In accor-
dance therefore with the canons of statutory in-
terpretation, it should be understood to have a
general and inclusive scope, inasmuch as the
term is a general one. Generalia verba sunt gen-
eraliter intelligenda That the law does not make
a distinction prevents us from making one: Ubi
lex non distinguit, nec nos distinguere debemus.
Escriche, in his Diccionario de Legislation y Ju-
risprudencia defines parientes as “los que estan
relacionados por los vinculos de la sangre, ya
sea por proceder unos de otros, como los de-
scendientes y ascendientes, ya sea por proceder
de una misma raiz o tronco, como los colater-
ales.” (cited in Scaevola, op. cit., p. 457). (p. 377,
Rollo)
According to Prof. Balane, to interpret the term
relatives in Article 992 in a more restrictive sense
than it is used and intended is not warranted, by any
rule of interpretation. Besides, he further states that
when the law intends to use the term in a more re-
strictive sense, it qualifies the term with the word col-
lateral, as in Articles 1003 and 1009 of the new Civil
Code.
Thus, the word, “relatives” is a general term and
when used in a statute it embraces not only collateral
relatives but also all the kindred of the person spoken
of, unless the context indicates that it was used in a
more restrictive or limited sense—which, as already
discussed earlier, is not so in the case at bar.
To recapitulate, We quote this:
“The lines of this distinction between le-

gitimates and illegitimates, which goes back very
far in legal history, have been softened but not
erased by present law. Our legislation has not
gone so far as to place legitimate and illegitimate
children on exactly the same footing. Even the
Family Code of 1987 (EO 209) has not abolished
the gradation between legitimate and illegitimate
children (although it has done away with the
subclassification of illegitimates into natural and
'spurious’). It would thus be correct to say that
illegitimate children have only those rights
which are expressly or clearly granted to them
by law (vide Tolentino, Civil Code of the Philip-
pines, 1973 ed., vol. Ill, p. 291). (Amicus Cu-
riae’s Opinion by Prof. Ruben Balane, p. 12).
In the light of the foregoing, We conclude that
until Article 992 is suppressed or at least amended to
clarify the term “relatives,” there is no other alterna-
tive but to apply the law literally. Thus, We hereby re-
iterate the decision of June 17, 1987 and declare Fe-
lisa Pamuti-Jardin to be the sole heir to the intestate
estate of Simona Pamuti Vda. de Santero, to the ex-
clusion of petitioners.
ARTICLE 993. If an illegitimate child should die
without issue, either legitimate or illegitimate, his father or
mother shall succeed to his entire estate; and if the child's
filiation is duly proved as to both parents, who are both liv-
ing, they shall inherit from him share and share alike.
(944a)
sion.
ARTICLE 994. In default of the father or mother, an

illegitimate child shall be succeeded by his or her surviving
spouse, who shall be entitled to the entire estate.
If the widow or widower should survive with brothers

and sisters, nephews and nieces, she or he shall inherit one-
half of the estate, and the latter the other half. (945a)
I. Par. 1—Vide No. 12, outline of Combinations in Intes-

tate Succession.
II. Par. 2—Vide No. 15, outline of Combinations in Intes-
tate Succession.
III. “When the law speaks of ‘brothers and sisters, neph-
ews and nieces’ as legal heirs of an illegitimate child, it refers to
illegitimate brothers and sisters as well as to the children,
whether legitimate or illegitimate, of such brothers and sisters.”
(Manuel vs. Ferrer, 247 SCRA 476 [1995], citing Jurado, Com-
ments and Jurisprudence .on Succession, 8th ed., 1991, pp.
423-424). To the same effect was the ruling in De la Rosa v.
Heirs of Damian, 480 SCRA 334 [2006].
SUBSECTION 4.—SURVIVING SPOUSE
ARTICLE 995. In the absence of legitimate descen-

dants and ascendants, and illegitimate children and their
descendants, whether legitimate or illegitimate, the survi-
ving spouse shall inherit the entire estate, without pre-
judice to the rights of brothers and sisters, nephews and
nieces, should there be any, under Article 1001. (946a)
Vide No. 12, outline of Combinations of Intestate Succes-
sion.
ARTICLE 996. If a widow or widower and legitimate
children or descendants are left, the surviving spouse has
in the succession the same share as that of each of the
children. (834a)
cession.
II. This rule holds even if there is only one legitimate
child, in which case the child and the surviving spouse will di-
vide the estate equally.
Santillon vs. Miranda

14 SCRA 563 (1965)
BENGZON, C.J.:
xxx xxx xxx

On November 21, 1953, Santillon died without
testament in Tayug, Pangasinan, his residence, leav-
ing one son, Claro, and his wife, Perfecta Miranda.
During his marriage, Pedro acquired several parcels of
land located in that province.
About four years after his death, Claro Santillon
filed a petition for letters of administration. Opposi-
tion to said petition was entered by the widow Perfecta
Miranda and the spouses Benito U. Miranda and
Rosario Corrales on the following grounds: (a) that the
properties enumerated in the petition were all conju-
gal, except three parcels which Perfecta Miranda
claimed to be her exclusive properties: (b) that Per-
fecta Miranda by virtue of two documents had con-
veyed 3/4 of her undivided share in most of the prop-
erties enumerated in the petition to said spouses
Benito and Rosario: (c) that administration of the es-
tate was not necessary, there being a case for parti-
tion pending; and (d) that if administration was nec-
essary at all, the oppositor Perfecta Miranda and not
the petitioner was better qualified for the post. It ap-
pears that subsequently, oppositor Perfecta Miranda
was appointed administratrix of the estate.
On March 22, 1961, the court appointed com-
missioners to draft within sixty days, a project of par-
tition and distribution of all the properties of the de-
ceased Pedro Santillon.
On April 25, 1961, Claro filed a “Motion to De-
clare Share of Heirs" and to resolve the conflicting
claims of the parties with respect to their respective
rights in the estate. Invoking Art. 892 of the New Civil
Code, he insisted that after deducting 1/2 from the
conjugal properties as the conjugal share of Perfecta,
the remaining 1/2 must be divided as follows: 1/4 for
her and 31/4 for him. Oppositor Perfecta, on the

other hand, claimed that besides her conjugal half,
she was entitled under Art. 996 of the New Civil Code
to another 1 / 2 of the remaining half. In other words,
Claro claimed 3/4 of Pedro’s inheritance, while Per-
fecta claimed 1/2.
xxx xxx xxx
xxx. How shall the estate of a person who dies
intestate be divided when the only survivors are the
spouse and one legitimate child?
xxx xxx xxx
xxx. Petitioner rests his claim to 3/4 of his fa-
ther’s estate on Art. 892 of the New Civil Code which
provides that:
“If only the legitimate child or descendant
of the deceased survives, the widow or widower
shall be entitled to one-fourth of the hereditary
estate, x x x.”
As she gets one-fourth, therefore, I get 3/4, says
Claro. Perfecta, on the other hand, cites Art. 996
which provides:
“If a widow or widower and legitimate chil-
dren or descendants are left, the surviving
spouse has in the succession the same share as
that of each of the children.”
Replying to Perfecta’s claim, Claro says the arti-
cle is unjust and unequitable to the extent that it
grants the widow the same share as that of the chil-
dren in intestate succession, whereas in testate, she
is given 1 /4 and the only child 1/2.
Oppositor Perfecta Miranda, on the other hand,
contends that Art. 996 should control, regardless of
its alleged inequity, being as it is, a provision on in-
testate succession involving a surviving spouse and a
legitimate child, inasmuch as in statutory construc-
tion, the plural word “children” includes the singular
“child.”
Art. 892 of the New Civil Code falls under the

chapter on Testamentary Succession; whereas Art.
996 comes under the chapter on Legal or Intestate
Succession. Such, being the case, it is obvious that
Claro cannot rely on Art. 892 to support his claim to
3/4 of his father’s estate. Art. 892 merely fixes the le-
gitime of the surviving spouse and Art. 888 thereof,
the legitime of children in testate succession. While it
may indicate the intent of the law with respect to the
ideal shares that a child and a spouse should get
when they concur with each other, it does not fix the
amount of shares that such child and spouse are en-
titled to when intestacy occurs. Because if the latter
happens, the pertinent provision on intestate succes-
sion shall apply, i.e., Art. 996.
Some commentators of our New Civil Code seem
to support Claro’s contention; at least, his objection to
fifty-fifty sharing. But others confirm the half and half
idea of the Pangasinan court.
This is, remember, intestate proceedings. In the
New Civil Code’s chapter on legal or intestate succes-
sion, the only article applicable is Art. 996. Our col-
league, Mr. Justice J.B.L. Reyes, professor of Civil
Law, is quoted as having expressed the opinion that
under this article, when the widow survives with only
one legitimate child, they share the estate in equal
parts. Senator Tolentino in his commentaries writes
as follows:
“One child Surviving.—If there is only one
legitimate child surviving with the spouse, since
they share equally, one-half of the Estate goes to
the child and the other half goes to the surviving
spouse. Although the law refers to 'children or
descendants,’ the rule in statutory construction
that the plural can be understood to include the
singular is applicable in this case.” (Tolentino,
Civil Code of the Philippines, Vol. Ill, p. 436).
The theory of those holding otherwise seems to
be premised on these proportions: (a) Art. 996 speaks
of “children,” therefore, it does not apply when there
is only one "child”; consequently Art. 892 (and Art.
888) should be applied, thru a process of judicial con-

struction and analogy; (b) Art. 996 is unjust or unfair
because, whereas in testate succession, the widow is
assigned one-fourth only (Art. 892), she would get 1/2
in intestate.
A. Children.—It is a maxim of statutory con-
struction that words in plural include the singular. So
Art. 996 could or should be read (and so applied): “If
the widow or widower and a legitimate child are left,
the surviving spouse has the same share as that of
the child. Indeed, if we refuse to apply the article to
this case on the ground that “child” is not included in
“children,” the consequences would be tremendous,
because “children” will not include “child” in the fol-
lowing articles:
ART. 887.—The following are compulsory heirs:
(1) legitimate children and descendants xxx.
ART. 888.—The legitime of legitimate children
and descendants consists of one-half of the hereditary
estate xxx.
ART. 896.—Illegitimate children who may sur-
vive xxx are entitled to one-fourth of the hereditary
estate x x x . (See also Art. 901).
In fact, those who say “children” in Art. 996 does not

include “child” seem to be inconsistent when they argue
from the premise that “in testate succession the only le-
gitimate child gets one-half and the widow, one-fourth.” The
inconsistency is clear, because the only legitimate child
gets one-half under Art. 888, which speaks of “children,”
not “child.” So if “children” in Art. 888 includes “child,” the
same meaning should be given to Art. 996.
B. Unfairness of Art. 996.—Such position, more
clearly stated, is this: In testate succession, where
there is only one child of the marriage, the child gets
one-half, and the widow or widower one-fourth. But in
intestate, if Art. 996 is applied now, the child gets
one-half, and the widow or widower one-half. Unfair or
inequitable, they insist.
On this point, it is not correct to assume that in

testate succession the widow or widower “gets only
one-fourth.” She or he may get one-half—if the testa-
tor so wishes. So, the law virtually leaves it to each of
the spouses to decide (by testament, whether his or
her only child shall get more than his or her survivor).
Our conclusion (equal shares) seems a logical
inference from the circumstance that whereas Article
834 of the Spanish Civil Code, from which Art. 996
was taken, contained two paragraphs governing two
contingencies, the first, where the widow or widower
survives with legitimate children (general rule), and
the second, where the widow or widower survives with
only one child (exception), Art. 996 omitted to provide
for the second situation, thereby indicating the legis-
lator’s desire to promulgate just one general rule ap-
plicable to both situations.
The resultant division may be unfair as some
writers explain—and this we are not called upon to
discuss—but it is the clear mandate of the statute,
which we are bound to enforce.

with legitimate parents or ascendants, the surviving spouse
shall be entitled to one-half of the estate, and the legiti-
mate parents or ascendants to the other half. (836a)
sion.
ARTICLE 998. If a widow or widower survives with il-

legitimate children, such widow or widower shall be entitled
to one-half of the inheritance, and the illegitimate children
or their descendants, whether legitimate or illegitimate, to
the other half, (n)
sion.

with legitimate children or their descendants and ille-
gitimate children or their descendants, whether legitimate

or illegitimate, such widow or widower shall be entitled to
the same share as that of a legitimate child, (n)

sion.
ARTICLE 1000. If the legitimate ascendants, the sur-

viving spouse, and illegitimate children are left, the ascen-
dants shall be entitled to one-half of the inheritance, and
the other half shall be divided between the surviving spouse
and the illegitimate children so that such widow or wid-
ower shall have one-fourth of the estate, and the illegiti-
mate children the other fourth. (841a)

sion.
ARTICLE 1001. Should brothers and sisters or their

children survive with the widow or widower, the latter shall
be entitled to one-half of the inheritance and the brothers
and sisters or their children to the other half. (953, 837a)

sion.
ARTICLE 1002. In case of a legal separation, if the

surviving spouse gave cause for the separation, he or she
shall not have any of the rights granted in the preceding
articles, (n)
I. One of the effects of legal separation is the disqualifica-

tion of the guilty spouse from succession to the estate of the
innocent spouse (Vide Article 63, par. 4, Family Code).
II. It goes without saying that this disqualification is not
imposed on the innocent spouse, who continues to be an heir of
the guilty one.
530 Jottings and Jurisprudence 1003-1007
SUBSECTION 5.—COLLATERAL RELATIVES
ARTICLE 1003. If there are no descendants, ascen-

dants, illegitimate children, or a surviving spouse, the col-
lateral relatives shall succeed to the entire estate of the de-
ceased in accordance with the following articles. (946a)
Vide outline of Exclusion and Concurrence in Intestacy,

supra.
ARTICLE 1004. Should the only survivors be brothers

and sisters of the full blood, they shall inherit in equal
shares. (947)

sion.
ARTICLE 1005. Should brothers and sisters survive

together with nephews and nieces, who are the children of
the decedent’s brothers and sisters of the full blood, the
former shall inherit per capita, and the latter per stirpes.
(948)

sion.
ARTICLE 1006. Should brothers and sisters of the full

blood survive together with brothers and sisters of the half
blood, the former shall be entitled to a share double that of
the latter. (949)

sion.
NOTE: There is no article explicitly laying down this pro-

portion if the intestate heirs are nephews/nieces of the full and
half-blood. Vide Art. 1008.
ARTICLE 1007. In case brothers and sisters of the

half blood, some on the father’s and some on the mother’s
side, are the only survivors, all shall inherit in equal shares
without distinction as to the origin of the property. (950)
Since all the siblings are of the half-blood, the division is,
obviously, equal.
ARTICLE 1008. Children of brothers and sisters of

the half-blood shall succeed per capita or per stirpes, in
accordance with the rules laid down for brothers and sisters
of the full blood. (915)*
Vide Nos. 19 and 23, outline of Combinations in Intestate

Succession.
ARTICLE 1009. Should there be neither brothers nor

sisters nor children of brothers or sisters, the other collat-
eral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood. (954a)
Note that nephews/nieces exclude uncles/aunts, though

all are 3rd degree relatives. (Vide p. 445).
ARTICLE 1010. The right to inherit ab intestato shall

not extend beyond the fifth degree of relationship in the
collateral line. (955a)

sion.
SUBSECTION 6.—THE STATE
ARTICLE 1011. In default of persons entitled to suc-

ceed in accordance with the provisions of the preceding
Sections, the State shall inherit the whole estate. (956a)
* There is an error in the article reference. The article from which this is
derived is 951 (not 915) of the old Code.
ARTICLE 1012. In order that the State may take pos-

session of the property mentioned in the preceding article,
the pertinent provisions of the Rules of Court must be ob-
served. (958a)
ARTICLE 1013. After the payment of debts and

charges, the personal property shall be assigned to the mu-
nicipality or city where the deceased last resided in the
Philippines, and the real estate to the municipalities or cit-
ies, respectively, in which the same is situated.
If the deceased never resided in the Philippines, the
whole estate shall be assigned to the respective munici-
palities or cities where the same is located.
Such estate shall be for the benefit of public schools, and
public charitable institutions and centers, in such munici-
palities or cities. The court shall distribute the estate as the
respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on
its own motion, may order the establishment of a perma-
nent trust, so that only the income from the property shall
be used. (956a)
sion.
ARTICLE 1014. If a person legally entitled to the es-

tate of the deceased appears and files a claim thereto with
the court within five years from the date the property was
delivered to the State, such person shall be entitled to the
possession of the same, or if sold, the municipality or city
shall be accountable to him for such part of the proceeds as
may not have been lawfully spent, (n)
I. Prescriptive period for claim—5 years from the delivery

of the property to the State (i.e., the political subdivision con-
cerned).
II. Who may make claim—Any person entitled by succes-

sion to the estate (This would include any heir by any kind of
succession: the legitime, testamentary, or intestate).
--------- 0O0 ---------------
ABOLITION OF THE REVERSION ADOPTIVA—
The reversion adoptiva, previously found in Article 39 of

PD 603 (the Child and Youth Welfare Code) has been repealed
by Article 254 of the Family Code.
THE PROBLEM OF PARTIAL INTESTACY—
The combinations laid down by the preceding articles

(978-1014) cover only cases of total intestacy. Nowhere in this
Chapter or elsewhere can one find provisions to govern cases of
partial intestacy; le., instances where the decedent has left a
will disposing of part, but not all, of the disposable portion.
How then should the estate be divided if the decedent died
with a will but the will does not dispose of the entire free or
disposable portion? The problem is solved by inference, bearing
in mind the law’s intent, thus:
a. Trace where the free portion went in total intes-
tacy.
b. Since part of that free portion was disposed of by
will, the testamentary provision should be carried
out, and what is left of the free portion should then
be given to the intended beneficiary in intestacy.
Example:
X died, leaving as his survivors his legitimate parents A

and B, and his wife Y [He has no children]. He left a will giving
1/8 of his entire estate to Caritas Manila. His net estate is
worth P600,000.00.
a. The will is not inofficious, since it disposes only of

1/8 of the estate (the disposable portion here being
1/4)
b. The legitimes of the compulsory heirs, respectively,

are:
A and B—1/2 of the estate - P300,000.00
Y—1/4 of the estate - P150,000.00
c. In total intestacy, the sharings would have been:
A and B-1/2 of the estate)
P300,000.00 ) Article
- Y-1/2 of the estate ) 997
P300,000.00 )
d. The intended recipient of the undisposed portion is
Y since she is the one to whom the entire free por-
tion went in total intestacy (A and B simply got
their legitimes).
e. Therefore, since part of the free portion was given
away by will, the remainder should be given to Y.
Hence:
Caritas Manila — P 75,000.00 (1/8)

A and B — 300,000.00 (1/2)
PI50,000.00 each or
Y — 225.000.00
P600,000.00
----o0i
Chapter 4
PROVISIONS COMMON TO TESTATE

AND INTESTATE SUCCESSION
SECTION 1.—RIGHT OF ACCRETION
ARTICLE 1015. Accretion is a right by virtue of

which, when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one
who renounces or cannot receive his share, or who died be-
fore the testator, is added or incorporated to that of his co-
heirs, co-devisees, or co-legatees, (n)
ARTICLE 1016. In order that the right of accretion
may take place in a testamentary succession, it shall be
necessary:
(1) That two or more persons be called to the same
inheritance, or to the same portion thereof, pro indiviso;
and
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be incapacitated
to receive it. (982a)
I. The definition of accretion is given in Article 1015.
The elements of accretion are given in Article 1016.
II. Occasions for the operation of accretion: (Article

1015):
1. Renunciation
2. Predecease
535
3. Incapacity
These are the same occasions for simple substitution.
III. Elements of accretion (Article 1016):
1. Two or more persons are called to the same in-
heritance, or to the same portion thereof, pro indi-
viso.
a. Meaning of pro indiviso:

i. Either the co-heirs are instituted without
individual designation of shares, e.g. “I
institute A and B to one-half of my es-
tate,” or
ii. The co-heirs are instituted with the
specification that they share equally (“in
equal shares”) or that they have the same
fractional sharing (“one-half or one-third,
etc.) for each (Article 1017); e.g.
“I institute A, B, and C to one-half of my
estate in equal shares.” Or
“I institute A, B, and C to one-half of my
estate, each of them to take one-third of
that one-half.”
iii. Will accretion occur if the fractional shar-
ings of the co-heirs are unequal?
Example: “I institute A, B, and C to one-half
of my estate; of this one-half, A is to get
1/2; B, 1/3; and C, 1/6”.
All that the law requires is that the institution be pro indi-
viso, which means “as undivided” or “in common” (Black’s Law
Dictionary). The term does not import equality. It would there-
fore seem that accretion will occur even if the sharings are un-
equal, as long as the result of the institution is co-ownership.
In the Spanish Code, such an institution would prevent
accretion, because the requirement there was that the institu-
tion be “sin especial designacion de partes” (without a definite
allocation of portions). The change in wording in our Code re-

sults in a different rule here.
2. Renunciation, predecease, or incapacity of one (or
more but less than all) of the instituted heirs.
ARTICLE 1017. The words “one-half for each” or “in

equal shares” or any others which, though designating an
aliquot part, do not identify it by such description as shall
make each heir the exclusive owner of determinate prop-
erty, shall not exclude the right of accretion.
In case of money or fungible goods, if the share of each
heir is not earmarked, there shall be a right of accretion.
(983a)
Vide comments under Elements of Accretion, supra

ARTICLE 1018. In legal succession the share of the
person who repudiates the inheritance shall always accrue
to his co-heirs. (981)
I. In intestacy, accretion occurs:

A. In repudiation or renunciation;
B. In predecease, only if representation does not take
place;
C. In incapacity or unworthiness, only if representation
does not take place.
Note that:
1. the last two cases (B and C) are not mentioned by
Article 1018;
2. in intestacy, accretion is subordinate to representa-
tion.
II. The co-heirs in whose favor accretion occurs must be co-
heirs in the same category as the excluded heir.
Example:
X dies intestate, survived by his wife Y and his
brothers A, B, and C.
538 Jottings and Jurisprudence 1019-1021
If C renounces, his portion goes to A and B by ac-

cretion. Y is not an accruing co-heir, not being of the
same category or class.
ARTICLE 1019. The heirs to whom the portion goes
by the right of accretion take it in the same proportion that
they inherit, (n)
I. This article—a new provision—merely makes explicit
what is implied; Le., that accretion should be proportional.
ARTICLE 1020. The heirs to whom the inheritance

accrues shall succeed to all the rights and obligations which
the heir who renounced or could not receive it would have
had. (984)
The exceptions are:
1. in testamentary succession, if the testator pro-
vides otherwise;
2. if the obligation is purely personal, and hence in-
transmissible.
ARTICLE 1021. Among the compulsory heirs the
right of accretion shall take place only when the free por-
tion is left to two or more of them, or to any one of them
and to a stranger.
Should the part repudiated be the legitime, the other
co-heirs shall succeed to it in their own right, and not by
the right of accretion. (985)
I. First paragraph.—The principle enunciated here is self-
explanatory, provided it is borne in mind that there are basi-
cally three different kinds of succession: 1) “compulsory” (i.e.,
succession to the legitime); 2) testamentary, and 3) intestate.
These three are distinct, even though they may operate

simultaneously.
Consequently, accretion is restricted in its operation
within the confines of the particular kind of succession in-
volved.
II. Second paragraph.—No accretion in the legitime. In

most cases, this rule will not substantially affect the operation
of the legitime. It had practical consequences in the Spanish
Code on account of the mejora or betterment, which our Code
has abolished. (Vide 7 Manresa, op. cit, pp. 296-297).
Possible significance of this rule of non-accretion in le-

gitime:
1) computation of legitimes of illegitimate children or sur-
viving spouse when concurring with legitimate children.
ARTICLE 1022. In testamentary succession, when
the right of accretion does not take place, the vacant por-
tion of the instituted heirs, if no substitute has been desig-
nated, shall pass to the legal heirs of the testator, who shall
receive it with the same charges and obligations. (986)
I. In the testamentary succession, accretion is subor-
dinate to substitution, if the testator has so provided. This is
because substitution is the testator’s express intent, whereas
accretion is merely his implied intent.
II. Obviously, if there is neither substitution nor accre-

tion, the part left vacant will lapse into intestacy and will be
disposed of accordingly.
ARTICLE 1023. Accretion shall also take place among
devisees, legatees and usufructuaries under the same con-
ditions established for heirs. (987a)
This is self-explanatoiy.
SECTION 2.—CAPACITY TO SUCCEED BY WILL

OR BY INTESTACY
ARTICLE 1024. Persons not incapacitated by law may
succeed by will or ab intestato.
The provisions relating to incapacity by will are equally
applicable to intestate succession. (744, 914)
I. The general rule is in favor of capacity to succeed, as

long as the successor has juridical personality. Incapacity must
be based on some legal ground and must be shown.
II. The second paragraph is inaccurate. Some grounds for
incapacity to succeed by will have no application to compulsory
or intestate succession.
The articles laying down the causes of incapacity to suc-
ceed are Articles 1027, 1028 and 1032:
1) Article 1027, pars. 1-5—applicable only to testa-
mentary succession;
2) Article 1027, par. 6—applicable to all kinds of
succession;
3) Article 1028—applicable only to testamentary
succession;
4) Article 1032—applicable to all kinds of succes-
sion.
ARTICLE 1025. In order to be capacitated to inherit,
the heir, devisee or legatee must be living at the moment
the succession opens, except in case of representation,
when it is proper.
A child already conceived at the time of the death of
the decedent is capable of succeeding provided it be bom
later under the conditions prescribed in Article 41. (n)
I. Natural persons—Requirement for capacity to succeed.
A. General Rule—Must be living when succession
opens.
1. When succession opens—The decedent’s death
(Article 777)
2. Meaning of “living”—It is enough that the heir,
devisee, or legatee be already conceived when the
decedent dies, provided it be bom later, in accor-
dance with Articles 40 & 41. Inheriting is favor-
able to the child.
B. If institution subject to a suspensive condition—
Successor must also be living when condition hap-
pens (Article 1034, par. 3). Thus, in a conditional

institution, the successor must be living both when
the decedent dies and when the condition happens.
C. If institution subject to a suspensive term—The re-

quirement of being alive applies only at the moment
of the decedent’s death, the successor need not be
alive when the term arrives. (Vide Article 878, supra)
II. Representation not an exception to requirement:
The requirement that the successor should be alive when
the decedent dies is absolute. There is no exception to this rule,
the provisions of this article notwithstanding. For repres-
entation to occur, the representation must at least already be
conceived when the decedent dies, because of the provisions of
Articles 971 and 973 (supra).
Thus: X has two sons—A and B—and B was disinherited
by X. X died in 1985. In 1988 B begot a child. B’s child cannot
represent B in the succession to X.
Parish Priest of Roman Catholic Church

of Victoria, Tarlac vs. Rigor
89 SCRA 493 (1979)
AQUINO, J.:
This case is about the efficaciousness or enfor-
ceability of a devise of ricelands located at Guimba,
Nueva Ecija, with a total area of around forty-four
hectares. That devise was made in the will of the late
Father Pascual Rigor, a native of Victoria, Tarlac, in
favor of his nearest male relative who would study for
the priesthood.
xxx xxx xxx

The record discloses that Father Rigor, the par-
ish priest of Pulilan, Bulacan, died on August 9,
1935, leaving a will executed on October 9, 1933
which was probated by the Court of First Instance of
Tarlac in its order of December 5, 1935. Named as
devisees in the will were the testator’s nearest rela-
tives, namely, his three sisters: Florencia Rigor-
Escobar, Belina Rigor-Manaloto and Nestor Rigor-

Quiambao. The testator gave a devise to his cousin,
Fortunato Gamalinda.
In addition, the will contained the following con-
troversial bequest (paragraphing supplied to facilitate
comprehension of the testamentary provisions):
“Doy y dejo como legado CUATRO (4) PARCELAS
de terreno (sic) palayeros, situados en el municipio de
Guimba de la provincia de NUEVA ECIJA, cuyo num.
De CERTIFICADO DE TRANSFERENCE DE TITULO
SON;—Titulo Num. 6530, mide 16,249 m. cuadrados
de superficie; Titulo Num. 6548, mide 242,998 m.
cuadrados de superficie; Titulo Num. 6525, mide,
62,665 m. cuadrados de superficie; y Titulo Num.
6521, mide 119,251 m. cuadrados de superficie; a
cualquier pariente mio varon mas cercano que estudie
la carrera eclesiastica hasta ordenarse de Presbiter-
ado o sea Sacedote; las condisiones de estate (sic) le-
gado son:
“(l.a) Prohibe en absoluto la venta de estos
terrenos arriba situados objectos de este legado;
“(2.a) Que el legatario pariente mio mas
cercano tendra derecho de empezar a gozar y
administrar de este legado al principiar a curzar
la Sagrada Teologia, y ordenado de Sacerdote,
hasta su muerte; pero que pierde el legatario
este derecho de administrar y gozar de este le-
gado al dejar de continuar sus estudios para or-
denarse de Presbiterado (Sacerdote).
“Que el legatario una vez Sacerdote ya estara ob-
ligado a celebrar cada ano VEINTE (20) Misas rezadas
en sufragio de mi alma y de mis padres difuntos, y si
el actual legatario, quedase excomulgado, IPSO
FACTO se le despoja este legado, y la administracion
de esto pasara a cargo del actual Parroco y sus
sucesores de la Iglesia Catolica de Victoria, Tarlac.
“Y en intervalo de tiempo que no haya legatario
acondicionado segun lo arriba queda expresado,
pasara la administracion de este legado a cargo del
actual Parroco Catolico y sus sucesores, de Victoria,

Tarlac.
“El Parroco administrador de estate (sic) legado,
acumulara anualmente todos los productos que
puede tener estate (sic) legado, ganando o sacando de
los productos anuales el CINCO (5) por ciento para su
administracion, y los derechos correspondientes de
las VEINTE (20) Misas rezadas que debiera el Parroco
celebrar cada ano, depositando todo lo restante de los
productos de estate (sic) legado, en un banco, a nom-
bre de estate (sic) legado.”
To implement the foregoing bequest, the admin-
istratrix in 1940 submitted a project of partition con-
taining the following item:
“ 5. LEGACY OF THE CHURCH
“That it be adjudicated in favor of the legacy
purported to be given to the nearest male relative who
shall
take the priesthood, and in the interim to be adminis-
tered by the actual Catholic Priest of the Roman
Catholic Church of Victoria, Tarlac, Philippines, or his
successors, the real properties hereinbelow indicated,
to wit:
‘Tit Lot No. Area in Tax Ass. Value

le No. 3663 Has. Dec. P 340.00
T-6530 3445-C 1.6249 18740 7.290.00
T-6548 3670 24.2998 18730 1.880.0
T-6525 3666 6.2665 18736 3.580.00
P13,090.00
T-6521area and value
"Total 11.9251 18733 ’'
44.1163
Judge Roman A. Cruz in his order of August 15,

1940, approving the project of partition, directed that
after payment of the obligations of the estate (includ-
ing the sum of P3,132.26 due to the church of the
Victoria parish) the administratrix should deliver to
the devisees their respective shares.
It may be noted that the administratrix and
Judge Cruz did not bother to analyze the meaning
and implications of Father Rigor’s bequest to his
nearest male relative who would study for the priest-

hood. Inasmuch as no nephew of the testator claimed
the devise and as the administratrix and the legal
heirs believed that the parish priest of Victoria had no
right to administer the ricelands, the same were not
delivered to that ecclesiastic. The testate proceeding
remained pending.
About thirteen years after the approval of the
project of partition, or on February 19, 1954, the par-
ish priest of Victoria filed in the pending testate pro-
ceeding a petition praying for the appointment of a
new administrator (succeeding the deceased adminis-
tratrix, Florencia Rigor), who should deliver to the
church the said ricelands, and further praying that
the possessors thereof be ordered to render an ac-
counting of the fruits. The probate court granted the
petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another peti-
tion for the delivery of the ricelands to the church as
trustee.
The intestate heirs of Father Rigor countered
with a petition dated March 25, 1957 praying that the
bequest be declared inoperative and that they be ad-
judged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, “no
nearest male relative of’ the testator “has ever studied
for the priesthood” xxx.
That petition was opposed by the parish priest of
Victoria.
Finding that petition to be meritorious, the lower
court, through Judge Bemabe de Aquino, declared
the bequest inoperative x x x .
Judge De Aquino granted the second motion for
reconsideration in his order of December 10, 1957 on
the ground that the testator had a grandnephew
named Edgardo G. Cunanan (the grandson of his first
cousin) who was a seminarian in the San Jose Semi-
nary of the Jesuit Fathers in Quezon City. The admin-
istrator was directed to deliver the ricelands to the
parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals.

It reversed that order. It held that Father Rigor had
created a testamentary trust for his nearest male rela-
tive who would take the holy orders but that such
trust could exist only for twenty years because to en-
force it beyond that period would violate “the rule
against perpetuities”. It ruled that since no legatee
claimed the ricelands within twenty years after the
testator’s death, the same should pass to his legal
heirs, citing Articles 888 and 912 (2) of the old Civil
Code and Article 870 of the new Civil Code.
The parish priest in this appeal contends that
the Court of Appeals erred in not finding that the tes-
tator created a public charitable trust and in not lib-
erally construing the testamentary provisions so as to
render the trust operative and to prevent intestacy.
As refutation, the legal heirs argue that the
Court of Appeals declared the bequest inoperative be-
cause no one among the testator’s nearest male rela-
tives had studied for the priesthood and not because
the trust was a private charitable trust. According to
the legal heirs, that factual finding is binding on this
Court. They point out that appellant priest’s change of
theory cannot be countenanced in this appeal.
In this case, as in cases involving the law of con-
tracts and statutory construction, where the intention
of the contracting parties or of the lawmaking body is
to be ascertained, the primary issue is the determina-
tion of the testator’s intention which is the law of the
case (dicat testator et erit lex. Santos vs. Manarang, 27
Phil. 209, 215; Rodriguez vs. Court of Appeals, L-
28734, March 28, 1969, 27 SCRA 546).
xxx xxx xxx
To ascertain Father Rigor’s intention, it may be
useful to make the following restatement of the provi-
sions of his will:
1. That he bequeathed the ricelands to anyone
of his nearest male relatives who would pur-
sue an ecclesiastical career until his ordina-
tion as a priest.
2. That the devisee could not sell the rice-

lands.
3. That the devisee at the inception of his
studies in sacred theology could enjoy and
administer the ricelands, and once or-
dained as a priest, he could continue en-
joying and administering the same up to
the time of his death but the devisee would
cease to enjoy and administer the ricelands
if he discontinued his studies for the
priesthood.
4. That if the devisee became a priest, he
would be obligated to celebrate every year
twenty masses with prayers for the repose
of the souls of Father Rigor and is parents.
5. That if the devisee is excommunicated, he
would be divested of the legacy and the
administration of the ricelands would pass
to the incumbent parish priests of Victoria
and his successors.
6. That during the interval of time that there
is no qualified devisee, as contemplated
above, the administration of the ricelands
would be under the responsibility of the in-
cumbent parish priest of Victoria and his
successors, and
7. That the parish priest-administrator of the
ricelands would accumulate annually the
products thereof, obtaining or getting from
the annual produce five percent thereof for
his administration and the fees corres-
ponding to the twenty masses with prayers
that the parish priest would celebrate for
each year, depositing the balance of the in-
come of the devise in the bank in the name
of his bequest.
From the foregoing testamentary provisions, it
may be deduced that the testator intended to devise
the ricelands to his nearest male relative who would
become a priest, who was forbidden to sell the rice-
lands who would lose the devise if he discontinued his

studies for the priesthood, or having been ordained a
priest, he was excommunicated, and who would be
obligated to say annually twenty masses with prayers
for the repose of the souls of the testator and his par-
ents.
On other hand, it is clear that the parish priest
of Victoria would administer the ricelands only in two
situations: one, during the interval of time that no
nearest male relative of the testator was studying for
the priesthood and two, in case the testator’s nephew
became a priest and he was excommunicated.
What is not clear is the duration of “el intervalo
de tiempo que no haya legatario acondicionado,” or
how long after the testator’s death would it be deter-
mined that he had a nephew who would pursue an
ecclesiastical vocation. It is that patent ambiguity that
has brought about the controversy between the parish
priest of Victoria and the testator’s legal heirs.
Interwoven with that equivocal provision is the
time when the nearest male relative who would study
for the priesthood should be determined. Did the testa-
tor contemplate only his nearest male relative at the
time of his death? Or did he have in mind any of his
nearest male relatives at anytime after his death?
We hold that the said bequest refers to the testa-
tor’s nearest male relative living at the time of his
death and not to any indefinite time thereafter. “In or-
der to be capacitated to inherit, the heir, devisee or
legatee must be living at the moment the succession
opens, except in case of representation, when it is
proper” (Art. 1025, Civil Code).
The said testamentary provisions should be sen-
sibly or reasonably construed. To construe them as
referring to the testator’s nearest male relative at any-
time after his death would render the provisions diffi-
cult to apply and create uncertainty as to the disposi-
tion of this estate. That could not have been his inten-
tion.
xxx xxx xxx

Parenthetically, it should be stated at this junc-

ture that Edgardo ceased to be a seminarian in 1961.
For that reason, the legal heirs apprised the Court of
Appeals that the probate court’s order adjudicating
the ricelands to the parish priest of Victoria had no
more leg to stand on.
xxx xxx xxx
Had the testator intended that the “cualquier
pariente mio varon mas cercano que estudie la car-
rera eclesiastica” would include indefinitely anyone of
his nearest male relatives bom after his death, he
could have so specified in his will.1 He must have
known that such a broad provision would suspend for
an unlimited period of time the efficaciousness of his
bequest.
What then did the testator mean by “el intervalo
de tiempo que no haya legatario acondicionado?" The
reasonable view is that he was referring to a situation
whereby his nephew living at the time of his death,
who would like to become a priest, was still in grade
school or in high school or was not yet in the semi-
nary. In that case, the parish priest of Victoria would
administer the ricelands before the nephew entered
the seminary. But the moment the testator’s nephew
entered the seminary, then he would be entitled to en-
joy and administer the ricelands and receive the fruits
thereof. In that event, the trusteeship would be termi-
nated.
Following the interpretation of the will, the in-
quiry would be whether at the time Father Rigor died
in 1935 he had a nephew who was studying for the
priesthood or who had manifested his desire to follow
the ecclesiastical career. That query is categorically
answered in paragraph 4 of appellant priest’s peti-
tions of February 19, 1954 and January 31, 1957d.
He unequivocally alleged therein that “no nearest
1 Author’s Note: This statement should be taken as a mere obiter. A tes-
tator cannot validly institute someone not yet living at the time of his death,
precisely because of Art. 1025. The provisions of which, although not explicitly
found in the old Code, were clearly implied in Art. 657 thereof. (Art. 777 of our
Code).
male relative of the late (Father) Pascual Rigor has

ever studied for the priesthood” (pp. 25 and 35, Re-
cord on Appeal).
Inasmuch as the testator was not survived by
any nephew who became a priest, the unavoidable
conclusion Is that the bequest in question was ineffec-
tual or inoperative. Therefore, the administration of
the ricelands by the parish priest of Victoria, as en-
visaged in the will, was likewise inoperative.
The appellant in contending that a public chari-
table trust was constituted by the testator in his favor
assumes that he was a trustee or a substitute devisee.
That contention is untenable. A reading of the testa-
mentary provisions regarding the disputed bequest
not support the view that the parish priest of Victoria
was a trustee or a substitute devisee in the event that
the testator was not survived by a nephew who be-
came a priest.
It should be understood that the parish priest of
Victoria could become a trustee only when the testa-
tor’s nephew living at the time of his death, who de-
sired to become a priest had not yet entered the
seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not
arise, and could not have arisen, in this case because
no nephew of the testator manifested any intention to
enter the seminary or ever became a priest.
ARTICLE 1026. A testamentary disposition may be

made to the State, provinces, municipal corporations, pri-
vate corporations, organizations, or associations for reli-
gious, scientific, cultural, educational, or charitable pur-
poses.
All other corporations or entities may succeed under a
will, unless there is a provision to the contrary in their
charter or the laws of their creation, and always subject to
the same. (746a)
Juridical persons—Requirement for capacity to succeed: It

must already exist as a juridical person when the decedent
dies.
A. Organizations or associations which do not possess
juridical personality cannot succeed, because legally
they would not exist. The enumeration of juridical
persons is found in Article 44.2
B. For institutions subject to suspensive conditions or
terms, the rules outlined in the previous article apply.
ARTICLE 1027. The following are incapable of suc-
ceeding:
(1) The priest who heard the confession of the tes-
tator during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same period;
(2) The relatives of such priest or minister of the gos-
pel within the fourth degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary disposi-
tions given by a ward in his favor before the final accounts
of the guardianship have been approved, even if the testa-
tor should die after the approval thereof; nevertheless, any
provision made by the ward in favor of the guardian when
the latter is his ascendant, descendant, brother, sister, or
spouse, shall be valid;
(4) Any attesting witness to the execution of a will,
the spouse, parents, or children, or any one claiming under
such witness, spouse, parents, or children;
2 ART. 44. The following are juridical persons:

(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or
purpose, created by law; their personality begins as soon as they have been
constituted according to law;
(3) Corporations, partnerships and associations for private interest or
purpose to which the law grants a juridical personality, separate and distinct
from that of each shareholder, partner or member.
(5) Any physician, surgeon, nurse, health officer or

druggist who took care of the testator during his last ill-
ness;
(6) Individuals, associations and corporations not
permitted by law to inherit. (745, 752, 753, 754a)
I. A. Paragraphs 1-5, Application—As pointed out, supra,

pars. 1-5 of this article apply only to testamentary succession.
They have no application to the legitime or to intestacy. Thus, a
person may be disqualified to succeed by will under these para-
graphs but be entitled to a legitime or to an intestate portion.
It is unfortunate that these paragraphs (with the exception
of par. 3, which clearly limits its application to “testamentary
dispositions”) do not state with sufficient clarity that they apply
solely to testamentary succession and not to the legitime or in-
testacy. The Spanish Code did not suffer from this ambiguity.
B. Paragraph 6—This paragraph is misplaced here be-
cause it provides for total disqualification. It should have been
made a separate article.
C. Rationale of Pars. 1-5—The law, in imposing this dis-
qualification, seeks to prevent any possible abuse of the moral
or spiritual ascendancy for purposes of testamentary benefit.
This disqualification is peremptory. No actual duress or in-
fluence need be shown; these are conclusively presumed. Proof
of absence of duress or influence is irrelevant and will, anyway,
not remove the disqualification.
II. A. Paragraph (1)—Requisites:
1) the will must have been executed during the tes-
tator’s last illness;
2) the spiritual ministration must have been ex-
tended during the last illness;
3) the will must have been executed during or after
the spiritual ministration.
A literal reading of the paragraph does not clearly indicate

that the will must have been made during the testator's last
illness, nor that the spiritual ministration be anterior to, or si-

multaneous with, the making of the will. Again, we have here a
case of clumsy draftsmanship. The counterpart provision in the
Spanish code was much more skillfully—and unambiguously—
worded:
“Art. 752. No produciran efecto las dlspo-
siciones testamentarias que haga el testador durante
su ultima enfermedad en favor del sacerdote que en
ella le hubiese confesado, de los parientes del mismo
dentro del cuarto grado, o de su iglesia, cabildo,
comunidad o instituto."
“Totally without effect shall be those tes-
tamentary dispositions which the testator makes dur-
ing his last illness in favor of the priest who, during
such illness, may have heard his confession, as well
as those in favor of the relatives of said priest within
the fourth degree, or of the church, chapter, commu-
nity, or institute to which he may belong."
Note: Notwithstanding the seemingly restrictive terms of

this disqualification, it applies not only to Christian priests,
pastors, ministers, and so forth, but also to all individuals be-
longing to other religions, sects, or cults, whose office or func-
tion it is to extend the peculiar spiritual ministrations of their
creed.
B. Paragraph (2)—
1. Fourth degree of relationship—The computation is
made in accordance with Articles 963-969, supra.
2. Purpose of disqualification—To prevent indirect
violations or circumventions of Par. (1).
3. Spouse of religious minister—Does the prohibition
of this paragraph apply to the spouse of the mi-
nister? The Catholic priesthood is celibate, but
not the priesthood or ministry of many other de-
nominations or religions. Certainly, the mischief
sought to be averted can be perpetrated by the
spouse.
C. Paragraph (3)—
1. When disqualification applies—For this disqua-

lification to apply, the will must have been exe-
cuted by the ward during the effectivity of the
guardianship; i.e. at anytime between the com-
mencement of the guardianship and its dis-
solution.
2. What kind of guardianship covered.—The terms of
this prohibition seem to be limited to guardians
over the property. In view, however, of the pur-
pose of the prohibition, the argument that this
prohibition should apply as well to guardians over
the person is most tenable.
3. Exception—A guardian who happens to be an as-
cendant, descendant, brother, sister, or spouse of
the ward-testator is excluded from the prohibi-
tion. Curiously, this exception is not allowed in
the other paragraphs.
D. Paragraph (4)—This is essentially a reiteration of the dis-
qualification set forth in Article 823 {supra), but cast
in more general terms, since this article nullifies not
just legacies and devises, but all testamentary dis-
positions made in the witness’ favor.
Note the discrepancy between this paragraph and Article
823, which allows for an exception; i.e., if there are three other
competent witnesses. That exception should be read into this
paragraph.
E. Par. (5)—
Scope of prohibition—The person (physician, surgeon, and

so forth) must have taken care of the testator during the latter’s
final illness. ‘Taking care” means medical attendance with
some regularity or continuity, because it is in such circum-
stances that the possibility of duress or influence exists. Obvi-
ously, the pharmacist of “Farmacia Patakbuhin” who only hap-
pens to fill a prescription does not fall under the interdiction.
III. This article is a hodge-podge of rules derived from

various sources: different articles of the old Code (which itself
did not lay down consistent rules), the Code of Civil Procedure,
and the ideas of the Code Commission.
This explains the bewildering variations in the rules:
1. Why, for instance, do some paragraphs (2 and 4) dis-
qualify relatives but another (5) doesn’t?
In fact even the degrees of relationship differ (2, 3, and 4).
2. Why is the exception in par. 3 not also applied to pars.
1 and 5?
This arbitrariness is, of course, wonderful material for en-
snaring students but not very good drafting.
ARTICLE 1028. The prohibitions mentioned in Arti-

cle 739, concerning donations inter vivos shall apply to tes-
tamentary provisions, (n)
I. As already pointed out, the disqualification laid down

in this article applies only to testamentary succession.
II. By the provisions of this article, those who are dis-
qualified from receiving donations under Article 739 are like-
wise disqualified from receiving testamentary dispositions from
the parties specified in that article.3
ARTICLE 1029. Should the testator dispose of the

whole or part of his property for prayers and pious works
for the benefit of his soul, in general terms and without
specifying its application, the executor, with the court’s
approval shall deliver one-half thereof or its proceeds to the
church or denomination to which the testator may belong,
3 ARTICLE 739. The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concu-
binage at the time of the donation:
(2) Those made between persons found guilty of the same criminal of-
fense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascen-
dants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may
be brought by the spouse of the doner or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.
to be used for such prayers and pious works, and the other
half to the State, for the purpose mentioned in Article
1013. (747a)
I. Requisites:
A.Disposition for prayers and pious works for the be-
nefit of the testator’s soul;
B. No specification of the application of the disposi-
tion.
II. Apportionment of the disposition or its proceeds:
A. One-half to the church or denomination to which
the testator belonged
B. One-half to the State, to be applied as provided for
in Article 1013 (supra)
Quaerendurrc Why the State? Under what rubric does the

State fall: Prayers? Pious works?
ARTICLE 1030. Testamentary provisions in favor of

the poor in general, without designation of particular per-
sons or of any community, shall be deemed limited to the
poor living in the domicile of the testator at the time of his
death, unless it should clearly appear that his intention was
otherwise.
The designation of the persons who are to be consid-
ered as poor and the distribution of the property shall be
made by the person appointed by the testator for the pur-
pose; in default of such person, by the executor; and should
there be no executor, by the justice of the peace, the
mayor, and municipal treasurer, who shall decide by a ma-
jority of votes all questions that may arise. In all these
cases, the approval of the Court of First Instance shall be
necessary.
The preceding paragraph shall apply when the testator
has disposed of his property in favor of the poor of a defi-
nite locality. (749a)
I. The named beneficiaries here are the poor, either of a
definite locality (Par. 3) or of no designated locality (Par. 1). In
the latter case, the beneficiaries shall be the poor of the testa-
tor's domicile, unless excluded by the testator in his will.
Quaerendum. What is meant by the testator’s domicile?
What political subdivision will this refer to?
II. Who are to determine the individual beneficiaries
within the class designated by the testator?
A. The person authorized by the testator or in his de-
fault,
B. The executor, or in his default,
C. The administrator
[The Committee specified in this article will, in fact, not
have occasion to function]
ARTICLE 1031. A testamentary provision in favor of

a disqualified person, even though made under the guise of
an onerous contract, or made through an intermediary,
shall be void. (755)
I. Rationale.—What cannot be done by direction cannot
be done by indirection. The simulation must be proved, for this
article to apply.
II. Effect of simulation or circumvention.—The article
provides that the disposition is void, hence ineffective both as
to the intended beneficiary and the intermediary. The intestate
heirs, to whom the property would go, have the right to claim
the nullity.
ARTICLE 1032. The following are incapable of suc-

ceeding by reason of unworthiness:
(1) Parents who have abandoned their children or in-
duced their daughters to lead a corrupt or immoral life, or
attempted against their virtue;
(2) Any person who has been convicted of an attempt
against the life of the testator, his or her spouse, des-
cendants, or ascendants;
(3) Any person who has accused the testator of a
crime for which the law prescribed imprisonment for six
years or more, if the accusation has been found groundless;

(4) Any heir of full age who, having knowledge of the
violent death of the testator, should fail to report it to an
officer of the law within a month, unless the authorities
have already taken action; this prohibition shall not apply
to cases wherein, according to law, there is no obligation to
make an accusation;
(5) Any person convicted of adultery or concubinage
with the spouse of the testator;
(6) Any person who by fraud, violence, intimidation,
or undue influence should cause the testator to make a will
or to change one already made;
(7) Any person who by the same means prevents an-
other from making a will, or from revoking one already
made, or who supplants, conceals, or alters the latter’s will;
(8) Any person who falsifies or forges a supposed will
of the decedent. (756, 673, 674a)
I. Application—As pointed out above (Article 1024, su-

pra), this article applies to all kinds of succession.
II. Grounds for unworthiness:
A. Paragraph (1)—There are three grounds given in
this paragraph: 1) abandonment of the child; 2) in-
ducement of a daughter to lead a corrupt or im-
moral life; and 3) attempt against a daughter’s vir-
tue.
All these three grounds are also grounds for disinheritance
of parents or ascendants under Article 920 (supra), and are dis-
cussed under that article (q.v.).
B. Paragraph (2)—This is also a ground for disin-
heritance under Article 919. Vide discussion of this
ground under that article (supra).
C. Paragraph (3)—This is also a ground for disin-
D. Paragraph (4)—One requisite of this ground for dis-

qualification makes this paragraph non-operative;
i. e. a legal obligation to make an accusation. There is
no such obligation under present law.
For academic purposes, the requisites of this ground are:
(1) The heir has knowledge of violent death of
the decedent;
(2) The heir is of legal age;
(3) The heir fails to report it to all officer of the
law within a month (after learning of it);
(4) The authorities have not yet taken action;
(5) There is a legal obligation for the heir to
make an accusation.
E. Paragraph (5)—This is also a ground for disin-
F. Paragraph (6)—This is also a ground for disin-
heritance under Article 919; as pointed out in the
discussion of that article (supra), is self-explanatory.
G. Paragraph (7)—This is self-explanatory.
H. Paragraph (8)—This is self-explanatory.
III. Effect of Unworthiness.—Unworthiness gives rise to

total disqualification; i.e., the unworthy heir is incapacitated to
succeed from the offended party by any form of succession: the
legitime, testamentary, and intestate.
Thus, unworthiness and disinheritance have identical ef-
fects. Unworthiness is disinheritance imposed by law.
That unworthiness deprives the unworthy heir even of the
legitime is clear from Article 1035 (infra).
ARTICLE 1033. The causes of unworthiness shall be
without effect if the testator had knowledge thereof at the
time he made the will, or if, having known of them subse-
quently, he should condone them in writing. (757a)
I. Restoration to Capacity—The unworthiness is set aside

and the unworthy heir restored to capacity in two ways:
1. A written condonation, or
2. The execution by the offended party of a will with
knowledge of the cause of unworthiness.
Quaerendurrv. Re: The second mode, is it enough that the

offended party execute a will with knowledge of the existence of
the cause of unworthiness?
The better opinion seems to be that it is not enough; the
will must also either institute the unworthy heir or restore him
to capacity. Vide outline infra.
II. Common Grounds for Unworthiness and Disinhe-

ritance: Conflicting Modes of Lifting Disqualification—
A. As pointed out above, most of the grounds for un-

worthiness are also grounds for disinheritance, viz.
paragraphs 1, 2, 3, 5, and 6 of Art. 1032.
There is no problem if the offended party does not choose

to disinherit the offending herein, because then only the rules
on unworthiness will operate.
Should the offended party, however, elect to disinherit the

offender, the two sets of rules (on disinheritance and unworthi-
ness) would overlap. The problem then arises: how is the dis-
qualified heir restored to capacity? Under the rules on disin-
heritance, a subsequent reconciliation is enough (Article 922);
under those on unworthiness, either a written pardon or a sub-
sequent will is required. Supposing that there is a reconcilia-
tion but nothing in writing, will it be correct to conclude that
the heir is restored to capacity under the rules on disinheri-
tance but stays disqualified under the rules on unworthiness?
This seems unacceptable because that would make the rules on
unworthiness (which is by operation of law and is only the im-
plied will of the offended party) prevail over those on disinheri-
tance (which is his express will).
B. Thus, the most acceptable reconciliation seems to be

the following:
Restoration to Capacity: Overlap of Rules on Unworthiness
and Disinheritance (Article 1033 and Article 922)
A. If Offended Party does not make a will subsequent to

the occurrence of the (common) cause:
Apply Article 1033—Unworthiness sets in ipso facto and
written condonation is necessary to restore to capacity.
B. If Offended Party makes a will subsequent to the
occurrence of the (common) cause:
1. If he knew of the cause
a) If he disinherits—Apply Article 922.
b) If he institutes or pardons the offender—
Offender restored to capacity.
c) If will is silent—This is disputed, but the better
opinion seems to be that the unworthiness
stays.
2. If he did not know of the cause—Unworthiness
stays.
ARTICLE 1034. In order to judge the capacity of the
heir, devisee or legatee, his qualification at the time of the
death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it
shall be necessary to wait until final judgment is rendered,
and in the case falling under No. 4, the expiration of the
month allowed for the report.
If the institution, devise or legacy should be condi-
tional, the time of the compliance with the condition shall
also be considered. (758a)
I. When capacity is to be determined:
A. General Rule—The time of the decedent’s death. Rea-
son: That is when successional rights vest (Article
777).
B. If institution is subject to a suspensive condition—

1) Time of decedent’s death, and
2) Time of happening of condition.
C. If final judgment is a requisite of unworthiness (Pars.
2, 3, and 5 of Article 1032)—time of final judgment.
ARTICLE 1035. If the person excluded from the inhe-
ritance by reason of incapacity should be a child or des-
cendant of the decedent and should have children or des-
cendants, the latter shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and
administration of the property thus inherited by his chil-
dren. (761a)
I. Representation in unworthiness—Unworthiness is one

of the three occasions for representation to operate. Vide com-
ments under Representation (Articles 970-977).
II. Extent of Representation—Representation in un-
worthiness (as also in predecease and disinheritance) extends
not only to the legitime, but also to whatever portion in intes-
tate succession the person represented may have been entitled
to. The first paragraph of this article should not be taken to
imply that representation is confined to the legitime.
III. Representation in the collateral line—If the unworthy
heir is a brother or sister, his children (nephews and nieces of
the decedent) will represent. Vide Article 972, par. 2.
IV. Second Paragraph—Articles 225-226 of the Family
Code should be read together with the second paragraph of this
article:
A. As to usufruct—The prohibition in this provision
has become unnecessary because of Article 226,
par. 2 (Family Code).4
4 ART. 226. xxx xxx xxx

The right of the parents over the fruits and income of the child’s property
shall be limited primarily to the child’s support and secondarily to the collec -
tive daily needs of the family (321a, 323a)
B. As to administration.—The disqualification re-

mains, and this right shall be exercised either by a
judicially appointed guardian or those vested by law
with substitute parental authority [Vide Article 216,
Family Code).
ARTICLE 1036. Alienations of hereditary property,
and acts of administration performed by the excluded heir,
before the judicial order of exclusion, are valid as to third
persons who acted in good faith; but the co-heirs shall have
a right to recover damages from the disqualified heir, (n)
I. Good faith of transferee as determining factor of valid-
ity—The validity of the alienation is determined by the good
faith or bad faith of the transferee, not of the transferor (the
excluded heir).
For the transferee to be in good faith, he must have ac-
quired the thing for value and without knowledge of the defect
of the transferor’s title. Thus, a donee cannot claim the benefit
of this provision, since he did not acquire for value.
II. Note that, in cases of valid alienations by the disquali-
fied heir, the rightful heirs are not without a remedy: they may
go after the disqualified heir for damages.
ARTICLE 1037. The unworthy heir who is excluded
from the succession has a right to demand indemnity for
any expenses incurred in the preservation of the hereditary
property, and to enforce such credits as he may have
against the estate, (n)
I. The right of reimbursement granted by this article to
the excluded heir is irrespective of his bad faith because the
expenses referred to in this article are necessary expenses,
which have to be reimbursed even to a possessor in bad faith
[Vide Articles 443 and 546, par. 1, both of which by down the
same rule).
ARTICLE 1038. Any person incapable of succession,
who, disregarding the prohibition stated in the preceding
articles, entered into the possession of the hereditary prop-
erty, shall be obliged to return it together with its acces-

sions.
He shall be liable for all the fruits and rents he may
have received, or could have received through the exercise
of due diligence. (760a)
The disqualified heir, referred to in this article, who took
possession of the hereditary property, is a possessor in bad
faith, because he took possession “disregarding the provision
stated in the preceding articles.” Hence, the law applies to him
the rules on possession in bad faith;
1) The obligation to return, with accessions;
2) Liability for fruits which were received and could
have been received.
These are the same rules laid down in Article 549.
II. Period for action to recover—Vide Article 1040, infra.
ARTICLE 1039. Capacity to succeed is governed by

the law of the nation of the decedent, (n)
I. National law of decedent governs capacity: Note that it
is the national law of the decedent—not that of the heir—that
governs capacity to succeed.
This is the same principle enunciated in Article 16, par.
2.5
ARTICLE 1040. The action for a declaration of in-

capacity and for the recovery of the inheritance, devise or
legacy shall be brought within five years from the time the
disqualified person took possession thereof. It may be
brought by any one who may have an interest in the suc-
cession. (762a)
5 ART. 16, par. 2. However, intestate and testamentary successions,
both with respect to the order of succession and to the amount of successional
rights and to the intrinsic validity of the testamentary provisions, shall be
regulated by the national law of the person whose succession is under consid -
eration, whatever may be the nature of the property and regardless of the
country wherein said property may be found.
Five-years prescriptive period—The prescriptive period of 5

years applies both to the declaration of incapacity of the heir
and the recovery of the inheritance or portion thereof wrong-
fully possessed by the disqualified heir.
In effect, this is a special prescriptive period for this ac-
tion. It is an exception to the prescriptive periods for recovery of
movables (8 years) and of immovables (30 years) laid down re-
spectively in Articles 1140 and 1141.
SECTION 3.—ACCEPTANCE AND REPUDIATION

OF THE INHERITANCE
ARTICLE 1041. The acceptance or repudiation of the
inheritance is an act which is purely voluntary and free.
(988)
I. Acceptance of inheritance a free act—The acceptance of
property through succession—whether in the form of a legitime,
testamentary succession, or intestacy—is, like the acceptance
of a donation, essentially free and voluntary.
No one can be required to accept a benefit: Non potest lib-
eralitas nolenti adquirt
II. The following articles lay down the requirements for

acceptance and repudiation. It should be noted that the rules
for acceptance are much more liberal than those for repudia-
tion. This is because acceptance is beneficial, whereas repudia-
tion is prejudicial to the successor.
ARTICLE 1042. The effects of the acceptance or re-
pudiation shall always retroact to the moment of the death
of the decedent. (989)
I. This has the same underlying philosophy as Article

777 (supra). The moment of death is the time succession vests.
II. Retroactivity:
A. Of acceptance—The successor will be deemed to
have owned and possessed the property from the
precise moment of the decedent’s death. This rule
has consequences with respect to acquisitive pre-

scription, capacity to succeed, representation, etc.
B. Of renunciation—The renouncer is deemed never
to have owned or possessed the property. Conse-
quently, the substitute, co-heir, or intestate heir
who gets the property in default of the renouncer
is deemed to have owned and possessed it from
the moment of the decedent’s death.
C. Conditional Institutions—The principle of retro-
activity is not overridden even if the institution is
subject to a suspensive condition. Upon the hap-
pening of the condition, the property passes to the
heir but with retroactive effect. This is the same
principle enunciated in conditional obligations
(Article 1187). Similarly, if the condition does not
happen, the property goes to the appropriate suc-
cessor, with the same retroactive effect.
However, for conditional institutions, the provisions of Ar-
ticle 880 (supra) should be complied with; to wit, the property
should be placed under administration during the interim.
ARTICLE 1043. No person may accept or repudiate

an inheritance unless he is certain of the death of the per-
son from whom he is to inherit, and of his right to the in-
heritance. (991)
I. This article is logical and self-explanatory. Acceptance
or renunciation must be made knowingly. Unless the successor
has knowledge of the two things mentioned in this article, his
acceptance or renunciation is not effective.
ARTICLE 1044. Any person having the free disposal
of his property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated per-
sons may be accepted by their parents or guardians. Par-
ents or guardians may repudiate the inheritance left to
their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall

belong to the persons designated by the testator to deter-
mine the beneficiaries and distribute the property, or in
their default, to those mentioned in Article 1030. (992a)
I. Requirement for personal acceptance or renunciation—
Capacity to act is required for personal acceptance or renuncia-
tion.
II. Acceptance or Renunciation on behalf of minors or
other incapacitated parties—Minors and other incapacitated
parties may accept or renounce only through their legal repre-
sentatives. However, for renunciation there is the added re-
quirement of court approval. As pointed out above (Vide com-
ments under Article 1041), the rules for renunciation are
stricter than those for acceptance.
According to Guy v. CA, 502 SCRA 151 [2006], repudiation
is an act of alienation of property which must pass the court’s
scrutiny in order to protect the interest of the ward.
III. Acceptance of testamentary grants to the poor.—The
persons empowered in Article 1030 (Vide comments under that
article) to select the recipients of testamentary grants to the
poor in general are likewise empowered to accept on their be-
half.
Note that: (1) these authorized individuals can only ac-
cept, not reject the grant; (2) the persons selected as qualified
recipients are, for their own part, free to accept or renounce the
benefit.
ARTICLE 1045. The lawful representatives of corpo-
rations, associations, institutions and entities qualified to
acquire property may accept any inheritance left to the lat-
ter, but in order to repudiate it, the approval of the court
shall be necessary. (993a)
ARTICLE 1046. Public official establishments can
neither accept nor repudiate an inheritance without the
approval of the government. (994)
These provisions lay down rules similar to those con-

cerning acceptance or renunciation on behalf of minors and
incompetents (Vide comments under Article 1044). The legal
representative may accept or renounce the testamentary grant
on behalf of the entity represented, but for renunciation, court
approval is, additionally, required.
ARTICLE 1047. A married woman of age may repu-
diate an inheritance without the consent of her husband.
(995a)
Acceptance or Renunciation by a married person—There is
no suggestion in this article that a married man of age does not
have the capacity to renounce without his wife’s consent.
The rule is more accurately worded as follows: A married

person of age and not incapacitated for any reason may accept
or renounce an inheritance without his or her spouse’s con-
sent.
ARTICLE 1048. Deaf-mutes who can read and write
may accept or repudiate the inheritance personally or
through an agent. Should they not be able to read and
write, the inheritance shall be accepted by their guardians.
These guardians may repudiate the same with judicial ap-
proval. (996a)
Capacity of deaf-mute to accept or renounce—This article
must be correlated with Article 1327, which provides:
ART. 1327. The following cannot give consent
to a contract:
(1) Unemancipated minors;

(2) Insane or demented persons, and deaf-
mutes who do not know how to write.
Thus, a deaf-mute who can read and write has contractual

capacity, and can accept or renounce on his own behalf. How-
ever, an illiterate deaf-mute is incompetent and the rules on
acceptance and renunciation through a representative apply
(Vide Article 1044).
ARTICLE 1049. Acceptance may be express or tacit.

An express acceptance must be made in a public or
private document.
A tacit acceptance is one resulting from acts by which
the intention to accept is necessarily implied, or which one
would have no right to do except in the capacity of an heir.
Acts of mere preservation or provisional administra-
tion do not imply an acceptance of the inheritance if,
through such acts, the title or capacity of an heir has not
been assumed. (999a)
Kinds of acceptance:
A. Express
1. Public document or
2. Private writing
B. Tacit
C. mplied (Article 1057)
ARTICLE 1050. An inheritance is deemed accepted:

(1) If the heir sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though gra-
tuitously, for the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-
heirs indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made are
those upon whom the portion renounced should devolve by
virtue of accretion, the inheritance shall not be deemed as
accepted. (1000)
I. Tacit acceptance—Inferred from acts revealing an in-

tent to accept. In general, a tacit acceptance is inferred from
acts of ownership performed by the heir over the property.
II. This article enumerates instances of tacit acceptance.
The enumeration is illustrative, rather than exclusive:
A. Par. (1)—Onerous or gratuitous conveyance in favor

of one, some, or all of his co-heirs, or to a stranger.
This is an act of ownership, which necessarily im-
plies that the heir has accepted the inheritance.
B. Par. (2)—Gratuitous renunciation in favor of one or
some of his co-heirs. This is not in fact a renunciation
but a conveyance in favor of the co-heirs specified.
It partakes of the nature of donation and therefore
must conform to the prescribed form for donations
[Vide Articles 748 and 749).
If the gratuitous “renunciation” is in favor of all the co-
heirs but in proportions different from those in which they
would receive by accretion, it is still a conveyance and must be
treated as a tacit acceptance.
A fortiori, if the “renunciation” in favor of one or some of
the co-heirs is for an onerous consideration, there is an accep-
tance.
C. Par. (3)—Onerous renunciation in favor of all the
co-heirs indiscriminately: This is not in fact a re-
nunciation but a sale of his portion and therefore
constitutes a tacit acceptance.
1. Gratuitous renunciation in favor of the co-heirs
indiscriminately—This is a true renunciation and
cannot be treated as a tacit acceptance. Indis-
criminate renunciation means a renouncement,
gratuitously made, in favor of all the co-heirs who
would get the renounced portion by virtue of ac-
cretion. The same rule applies even if the part re-
nounced in this manner is the legitime, notwith-
standing that there is no accretion in the legitime,
as long as the renunciation is indiscriminate.
ARTICLE 1051. The repudiation of an inheritance

shall be made in a public or authentic instrument, or by pe-
tition presented to the court having jurisdiction over the
testamentary or intestate proceedings. (1008)
I. Form of renunciation:
A. Public or authentic instrument

[“Authentic” here should be taken to mean genuine, to
avoid tautology],
B. Petition filed in the settlement proceedings
II. Form of renunciation stricter—As pointed out above,
the law has stricter requisites for renunciation, since it is not
beneficial to the heir.
ARTICLE 1052. If the heir repudiates the inheritance

to the prejudice of his own creditors, the latter may peti-
tion the court to authorize them to accept it in the name of
the heir.
The acceptance shall benefit the creditors only to an
extent sufficient to cover the amount of their credits. The
excess, should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom,
in accordance with the rules established in this Code, it
may belong. (1001)
This is an instance of action pauliana, which is the right

given to creditors to impugn or set aside contracts, tran-
sactions, or dispositions of their debtors which will prejudice or
defraud them.
The same principle is expressed in the following articles:
ART. 1177. The creditors, after having pursued
the property in possession of the debtor to satisfy
their claims, may exercise all the rights and bring all
the actions of the latter for the same purpose, save
those which are inherent in his person: they may also
impugn the acts which the debtor may have done to
defraud them.
ART. 1313. Creditors are protected in cases of
contracts intended to defraud them.
xxx xxx xxx

xxx xxx xxx
The right of the creditor to accept the inheritance in the

name of the debtor extends only to the amount or value neces-
sary to satisfy the credit. Any amount in excess of that may be
validly renounced by the debtor-heir.
ARTICLE 1053. If the heir should die without having
accepted or repudiated the inheritance his right shall be
transmitted to his heirs.
I. This rule is a consequence of the principle that the
right of succession vests at the moment of death (Article 777).
Therefore, the right of the heir who dies before accepting or re-
nouncing is already vested and is transmitted to the heir’s
heirs.
II. The right to the inheritance itself forms part of the in-
heritance of the heir [Vide Articles 774 & 776) and therefore,
the heir of the heir can exercise the right granted by this article
only if he (the heir’s heir) accepts his own predecessor’s inheri-
tance. If he renounces, obviously he cannot exercise this right.
ARTICLE 1054. Should there be several heirs called
to the inheritance, some of them may accept and the oth-
ers may repudiate it. (1007a)
If there are several heirs, their right to accept or right cor-
responds to the aliquot share to which they are entitled.
Thus, if X dies and Y, his heir, himself dies before accept-
ing or renouncing the inheritance, leaving A, B, and C as his
own heirs—A, B, and C each has the right to accept or re-
nounce his corresponding one-third interest in whatever Y was
entitled to inherit from X.
Quaerendurrc Should one or more of the heirs renounce,
to whom will the repudiated portion go? To the ones who ac-
cept, by accretion? Or to the intestate heirs of the decedent
whose inheritance the predecessor of the heirs was unable to
accept or renounce?
ARTICLE 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato, repudiates
the inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.

Should he repudiate it as an intestate heir, without
knowledge of his being testamentary heir, he may still ac-
cept it in the latter capacity. (1009)
I. Situation governed by this article:
A person is both a testamentary heir (or legatee or devisee
and an intestate heir, with respect to the same inheritance:
A. If he renounces as testamentary heir (or legatee

or devisee—he is deemed to have renounced as in-
testate heir as well.
B. If he renounces as intestate heir without knowledge
of his being a testamentary heir (or legatee orjdevi-
see)—he is not deemed to have renounced as testa-
mentary heir and may therefore accept or renounce
separately in the latter capacity.
Rationale: The testamentary disposition is the express will

of the testator, whereas intestacy is only his implied will. One
who renounces the express will is deemed to have renounced
the implied also, but not the other way around.
Quaerendum: Supposing the heir renounces as intestate

heir with knowledge of his being a testamentary heir, may he
accept in the latter capacity? This is disputed; by the wording
of paragraph 2 of this article, it seems he cannot accept as tes-
tamentary heir. In light of the rationale of the rule, however, it
seems he can. The latter view is more persuasive to this writer.
II. Non-applicability of rule to legitime—In view of the ra-
tionale of the rule, should the heir be simultaneously a com-
pulsory heir and a testamentary heir, he can accept either or
both. The legitime passes not because of any implied will or
wish of the decedent but by strict operation of law, irrespective
of the decedent’s wishes. Thus, the term ab intestato in this ar-
ticle refers solely to intestate succession.
To the same effect is the rule laid down in Article 955, par.
2, supra, regarding a person who is simultaneously a compul-
sory heir and a legatee or devisee.
ARTICLE 1056. The acceptance or repudiation of an

inheritance, once made, is irrevocable, and cannot be im-
pugned, except when it was made through any of the causes
that vitiate consent, or when an unknown will appears.
(997)
Exceptions to rule of finality of acceptance or renun-

ciation:
A. Vitiated consent—The factors vitiating consent are,
of course: 1) violence, 2) intimidation, 3) undue in-
fluence, 4) mistake, and 5) fraud.
B. Appearance of an unknown will—This applies if the
newly-discovered will is subsequent to any will
which may have formed the basis for the acceptance
or renouncement. The new will (assuming it is valid
and admitted to probate) reopens the whole affair
and will call for a new acceptance or renunciation.
ARTICLE 1057. Within thirty days after the court has

issued an order for the distribution of the estate in accor-
dance with the Rules of Court, the heirs, devisees and lega-
tees shall signify to the court having jurisdiction whether
they accept or repudiate the inheritance.
If they do not do so within that time, they are deemed
to have accepted the inheritance, (n)
I. This is implied acceptance, i.e., failure to signify accep-
tance or renunciation within the thirty-day period specified by
this article. Qui tacet consentire videtur.
SECTION 4—EXECUTORS AND ADMINISTRATORS

ARTICLE 1058. All matters relating to the appoint-
ment, powers and duties of executors and administrators
and concerning the administration of estates of deceased
persons shall governed by the Rules of Court, (n)
The pertinent provisions of the Rules of Court are Rules

78-90.
ARTICLE 1059. If the assets of the estate of a dece-

dent which can be applied to the payment of debts are not
sufficient for that purpose, the provisions of articles 2239
to 2251 on Preference of Credits shall be observed, pro-
vided that the expenses referred to in article 2244, No. 8,
shall be those involved in the administration of the dece-
dent’s estate, (n)
The provisions referred to are found in Title XIX, Concur-

rence and Preference of Credits.
ARTICLE 1060. A corporation or association autho-

rized to conduct the business of a trust company in the
Philippines may be appointed as an executor, adminis-
trator, guardian of an estate, or trustee, in like manner as
an individual; but it shall not be appointed guardian of the
person of a ward, (n)
Rule 78 of the Rules of Court governs the issuance of let-

ters testamentary and of administration and should be read
together with this article.
SECTION 5.—COLLATION
Collation—The biggest problem about collation is the term;

or more precisely, the several meanings which the term carries.
Basically, collation, as used in this section, carries three mean-
ings:
1. Collation as computation;
2. Collation as imputation;
3. Collation as return.
1. Collation as computation—This is a simple ac-
counting or arithmetical process, whereby the
value of all donations inter vivos made by the de-
cedent is added to his available assets in order to
arrive at the value of the net hereditary estate.
This process has been discussed under Article
908 (supra)
2. Collation as imputation—This is the process by

which donations inter vivos made by the decedent
are correspondingly charged either to the donee’s
legitime or against the disposable portion. Articles
909 and 910 (supra) provide for this.
3. Collation as return—This takes place when a do-
nation inter vivos is found to be inofficious (i.e.
exceeds the disposable portion) and so much of its
value as is inofficious is returned to the dece-
dent’s estate to satisfy the legitimes. Again Arti-
cles 909 and 910 contain provisions on this.
The articles in this section swing from one meaning to an-

other. Hence, it is necessary—for a proper understanding of the
articles—to understand the sense in which the word collation is
used in each article.
ARTICLE 1061. Every compulsory heir, who succeeds

with other compulsory heirs, must bring into the mass of
the estate any property or right which he may have re-
ceived from the decedent, during the lifetime of the latter,
by way of donation, or any other gratuitous title, in order
that it may be computed in the determination of the le-
gitime of each heir, and in the account of the partition.
(1035a)
I. Meaning of article—This article refers to the compu-

tation of all donations inter vivos made by the decedent, for the
purpose of determining the value of the net estate. This is ex-
actly the same thing that is referred to in Art. 908, par. 2 (su-
pra). The process, as already pointed out, is purely arithmeti-
cal; it is merely a paper computation.
II. What should be included in the computation—This ar-
ticle seems to suggest that only donations inter vivos to com-
pulsory heirs need be computed. This is not so. All donations
inter vivos—whether made to compulsory heirs or to strang-
ers—should be included in the computation of the net heredi-
tary estate. This is the third step in the process of computing
the net hereditary estate, as laid down in Article 908 (supra).
III. Value to be computed—Only the value of the property

donated at the time the donation was made is to be computed,
since in donations ownership transfers at the time the donation
is perfected. (Vizconde v. CA, 286 SCRA 217 [1998]). Thus, any
subsequent increase in value is for the donee’s benefit, and any
decrease is for his account.
IV. Purpose of article—To determine the amount of the
net estate so as to ensure that the legitimes are not impaired
(Vide Vizconde v. CA, 286 SCRA 217 [1998], supra, pp. 383-
387).
ARTICLE 1062. Collation shall not take place among
compulsory heirs if the donor should have so expressly pro-
vided, or if the donee should repudiate the inheritance,
unless the donation should be reduced as inofficious. (1036)
I. This article uses collation in the sense of imputation;
i.e. donations inter vivos made by the decedent to a compulsory
heir are, as a general rule, imputed to or charged against the
heir’s legitime.
II. Rules on imputation of donations inter vivos:
A. Donations inter vivos to compulsory heirs:
General Rule.—Should be imputed to the heir’s legitime;
i.e. considered as an advance on the legitime.
This is the same rule laid down in Articles 909 and 910
(supra).
Exceptions:
1) If the donor provides otherwise; or
2) If the donee renounces the inheritance, because
in this case the donee gives up his status as a
compulsory heir and therefore cannot be consid-
ered as one.
In case either exception applies, the donation will have to
be imputed to the free portion.
Quaerendum. Supposing the compulsory heir received a

donation inter vivos from the decedent but the value of the do-
nation exceeds the donee's legitime?—The donation will be im-
puted to the donee’s legitime to the extent of the legitime’s
value and the excess, to the free portion.
B. Donations inter vivos to strangers—imputed to the

free portion.
C. Instances when donations inter vivos are to be im-

puted to the free portion:
1) When made to strangers;
2) When made to compulsory heirs, and the donor
so provides;
3) When made to compulsory heirs who renounce
the inheritance;
4) When in excess of the compulsory heir’s le-
gitime, as to the excess.
ARTICLE 1063. Property left by will is not deemed

subject to collation, if the testator has not otherwise pro-
vided, but the legitime shall in any case remain unim-
paired. (1037)
I. This article uses collation in the sense of imputation.

II. Rule on testamentary dispositions to compulsory
heirs:
General Rule: They should not be imputed to the legitime,

but to the free portion. Hence, the compulsory heir receives the
testamentary disposition in addition to his legitime.
Exception: If the testator provides otherwise.
Should the testator provide otherwise, the testamentary
disposition in favor of the heir will be merged with his legitime.
That will make the disposition illusory.
ARTICLE 1064. When grandchildren, who survive

with their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother,
they shall bring to collation all that their parents, if alive,

would have been obliged to bring, even though such grand-
children have not inherited the property.
They shall also bring to collation all that they may
have received from the decedent during his lifetime, unless
the testator has provided otherwise, in which case his
wishes must be respected, if the legitime of the co-heirs is
not prejudiced. (1038)
I. This article uses collation in the sense of imputation

II. Situation covered by article.—Grandchildren inhe-
riting by representation concurrently with children (uncles
and aunts of the grandchildren) who are inheriting in their
own right, or with other grandchildren (cousins of the grand-
children).
III. What the grandchildren have to collate (impute to
their legitime).
A. Whatever the parent whom they are representing
would have been obliged to collate; and
B. Whatever they themselves have received from the
grandparent by gratuitous title (subject to the same
rules and exceptions laid down in Article 1062, su-
pra)
ARTICLE 1065. Parents are not obliged to bring to

collation in the inheritance of their ascendants any prop-
erty which may have been donated by the latter to their
children. (1039)
I. This article uses collation in the sense of imputation

II. This article is logical and self-explanatory. Obviously,
a person should not collate what his parent gave to his child
since he is not the recipient of the conveyance.
III. Against what part of estate conveyance imputable—
The donation to the grandchild should be imputed to the free
portion, since it is a donation to a stranger.
ARTICLE 1066. Neither shall donations to the spouse

of the child be brought to collation; but if they have been
given by the parent to the spouses jointly, the child shall be
obliged to bring to collation one-half of the thing donated.
(1040)

II. A. Donations made by a person to his son-in-law or
daughter-in-law are separate property of the donee and, logi-
cally, should not be imputed to the legitime of the donor’s child
(the donee’s spouse). The donation is one made to a stranger.
B. If the donation is made to the spouses jointly, one-half
belongs to the donor’s child and should be treated in accor-
dance with Article 1062 (supra) and the other half is the prop-
erty of the donor’s son- or daughter-in-law and should be
treated as a donation to a stranger. Needless to say, this pre-
sumption of equality of aliquot shares will yield to a different
designation by the donor.
III. These rules are perfectly consistent with the following
provisions of the Family Code.
For an absolute community regime:
Article 92: The following shall be excluded from the
community property.
(i) Property acquired during the marriage by gratui-
tous title by either spouse, and the fruits as well
as the income thereof, if any, unless it is ex-
pressly provided by the donor, testator or grantor
that they shall form part of the community prop-
erty.
xxx xxx xxx
For a conjugaL partnership regime:

Article 109: The following shall be the exclusive property
of each spouse:
xxx xxx xxx

(2) That which each acquires during the marriage by gra-

tuitous title.
xxx xxx xxx
Article 113: Property donated or left by will to the

spouses, jointly and with designation of determinate shares,
shall pertain to the donee-spouse as his or her own exclusive
property, and in the absence of designation, share and share
alike, without prejudice to the right of accretion when proper.
ARTICLE 1067. Expenses for support, education, me-
dical attendance, even in extraordinary illness, appren-
ticeship, ordinary equipment, or customary gifts are not
subject to collation. (1041)
I. This article uses collation in the sense of computation
The expenses mentioned in this article should not even be in-
cluded in the computation of the decedent’s estate. This is, in
effect, a qualification of, or an exception to, the rule in Art.
1061 (supra). The reason is obvious: it would be extremely im-
practical, if not impossible, to make an accounting of all these
items.
II. Scope of “support!’—The general coverage of support is
defined in Article 194 of the Family Code.6
For purposes of this article, however, support has a more
restricted meaning: it does not include expenses for the recipi-
ent’s professional, vocational, or other career, because those
items are governed by Article 1068 (infra).
ARTICLE 1068. Expenses incurred by the parents in
giving their children a professional, vocational or other ca-
reer shall not be brought to collation unless the parents so
provide, or unless they impair the legitime; but when their
6 Art. 194: Support comprises everything indispensable for

sustenance,
dwelling, clothing, medical attendance, education and transportation, keeping
with the financial capacity of the family.
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some profes -
sion, trade or vocation, even beyond the age of majority. Transportation shall
include expenses in going to and from school, or to and from place of work.
collation is required, the sum which the child would have

spent if he had lived in the house and company of his par-
ents shall be deducted therefrom. (1042a)
II. This article merely states, in effect, that, as a general
rule, the expenses incurred by the parents for the child’s pro-
fessional, vocational, or other career (i.e. courses beyond the
secondary level) are an exception the rule laid down in Article
1062; hence, these expenses, if not inofficious, although dona-
tions, should not be charged against the recipient’s legitime,
but against the free portion, unless the parents provide other-
wise.
III. Contrary provision by parents—Should the parents
provide otherwise, the child is entitled, under this article, to
deduct from the said amount the sum corresponding to what
his parents would have spent on him had he stayed at home
and loafed.
ARTICLE 1069. Any sums paid by a parent in satis-
faction of the debts of his children, election expenses,
fines, and similar expenses, shall be brought to collation.
(1043a)
II. The items mentioned in this article constitute dona-
tions by the parent to the child and, therefore, should be
treated like other donations to compulsory heirs under Article
1062.
ARTICLE 1070. Wedding gifts by parents and ascend-
ants consisting of jewelry, clothing, and outfit, shall not be
reduced as inofficious except insofar as they may exceed
one-tenth of the sum which is disposable by will. (1044)
I. The sense of this article is vague, it is derived almost
verbatim from Article 1044 of the Spanish Code; the only
change is that the present article clarifies the coverage of the
provision; i.e. that it applies only to wedding gifts given by par-
ents or ascendants to children or descendants. The Spanish

Code is not explicit on this point.
II. Scope and operation of article—
1. The article covers only wedding gifts consisting
of jeweliy, clothing, and wedding outfit. (Outfit in-
cludes, according to Manresa [op. cit., Vol. VII, p.
556], the items necessary for an individual’s per-
sonal use). It does not include other property,
whether personal or real—that would be governed
by the provisions of Article 1062, supra.
2. Literally construed, this article seems to state
that the value of such wedding gifts cannot go be-
yond one-tenth of the free portion of the donor’s
estate. Any excess will be considered inofficious
and should be returned in the same manner and
at the same time as other inofficious donations. It
further seems that, as to the allowable one-tenth,
this is to be imputed to the free portion. The ques-
tion can be raised, if this is indeed the proper in-
terpretation of the article: Why should the gift be
reduced as inofficious just because it exceeds
one-tenth of the free portion?
Manresa’s interpretation of this article is that the gift will
be imputed to the free portion to the extent of one-tenth of the
free portion. Beyond that value, the excess will be imputable to
the recipient’s legitime. (Vide Manresa, op. cit., Vol. VII, pp.
556-557).
ARTICLE 1071. The same things donated are not to
be brought to collation and partition, but only their value
at the time of the donation, even though their just value
may not then have been assessed.
Their subsequent increase or deterioration and even
their total loss or destruction, be it accidental or culpable,
shall be for the benefit or account and risk of the donee.
(1045a)
I. This article uses collation in two senses: computation

and imputation
II. A. What value is to be computed and imputed:
1. Only the value of the thing donated at the time the
donation was made should be considered in the
computation of the donor’s estate. [Article 908
provides the same thing.]
2. Similarly, only the thing’s value at the time the
donation was made should be imputed whether to
the legitime or the free portion. (Vizconde v. CA,
286 SCRA 217 [1998]
B. Reason—Any appreciation or depreciation of the
thing after that time should be for the donee’s account, since
the donation transfers ownership to him.
ARTICLE 1072. In the collation of a donation made

by both parents, one-half shall be brought to the inheri-
tance of the father, and the other half, to that of the
mother. That given by one alone shall be brought to colla-
tion in his or her inheritance. (1046a)
I. This article uses collation in two senses: computation

and imputation
II. A. Joint donations—The first sentence of this article
presupposes either a regime of absolute community or of con-
jugal partnership between the donor spouses. A joint donation
by them will be treated, upon the dissolution of the property
regime, as pertaining in equal shares to the estate of each.
B. Donations by one parent alone—Obviously, such a
donation will be of separately-owned property and should be
treated as such.
ARTICLE 1073. The donee’s share of the estate shall

be reduced by an amount equal to that already received by
him; and his co-heirs shall receive an equivalent, as much
as possible, in property of the same nature, class and qual-
ity. (1047)
I. This article refers to collation as imputation,

II. This article requires not only equivalence in amount,
but, as far as possible, also in the kind of property received.
This, of course, will yield to a different agreement among the
heirs.
ARTICLE 1074. Should the provisions of the prece-

ding article be impracticable, if the property donated was
immovable, the co-heirs shall be entitled to receive its
equivalent in cash or securities, at the rate of quotation;
and should there be neither cash nor marketable securities
in the estate, so much of the other property as may be nec-
essary shall be sold at public auction.
If the property donated was movable, the co-heirs shall
only have a right to select an equivalent of other personal
property of the inheritance at its just price. (1048)
This article provides for the closest analogue to strict

equivalence, in case there are not enough of the same things to
distribute among all.
Again, this will yield to a contrary agreement among the
heirs.
ARTICLE 1075. The fruits and interest of the prop-

erty subject to collation shall not pertain to the estate ex-
cept from the day on which the succession is opened.
For the purpose of ascertaining their amount, the
fruits and interest of the property of the estate of the same
kind and quality as that subject to collation shall be made
the standard of assessment. (1049)
I. This article uses collation in the sense of return.

II. Rationale of article.—If any donation turns out to be

inofficious, then the obligation to return it to the estate arises
as of the time the succession vests; i.e. the time of the dece-
dent’s death, because it is from that time that the compulsory
heir’s right to the inheritance becomes absolute (Article 777).
From that time therefore the compulsory heir is entitled to the
fruits.
III. Extent of right to fruits:
1. The entirety of the fruits and interests shall per-
tain to the compulsory heir, only if the donation is
totally inofficious.
2. If the donation is only partially inofficious, the

right to the fruits and interests shall be prorated
between the compulsory heir and the donee, in
proportion to their respective interests over the
property.
ARTICLE 1076. The co-heirs are bound to reimburse

to the donee the necessary expenses which he has incurred
for the preservation of the property donated to him, though
they may not have augmented its value.
The donee who collates in kind an immovable, which
has been given to him, must be reimbursed by his co-heirs
for the improvements which have increased the value of
the property, and which exist at the time the partition is
effected.
As to works made on the estate for the mere pleasure
of the donee, no reimbursement is due him for them; he
has, however, the right to remove them, if he can do so
without injuring the estate, (n)
I. This article uses collation in the sense of return

II. A. The rules laid down by this article govern neces-
sary (par. 1), useful (par. 2), and ornamental (par. 3) expenses
incurred by the donee who is now obliged to return.
B. Total or partial return:
The extent of the application of the rules in this article de-

pends on the extent of the obligation to return, thus:
1. If the thing has to be returned in its entirety (i.e.
the donation is totally inofficious)—
a) necessary expenses—Reimbursement must
be to the full extent of the expenses incurred
(Vide rule laid down in Article 546, par. I].7
b) useful expenses—Reimbursement must like-
wise be to the full extent provided that the
improve-ment is still in existence [Vide rule
in Article 546, par. 2].8
c) ornamental expenses—No reimbursement
demandable, but right of removal granted if
no injury to the estate will be caused [Vide
rule in Article 548]. 9
2. If the thing has to be returned only in part (i.e.
the donation is only partially inofficious)—
a) necessary and useful expenses—The reim-
bursement is also partial, in proportion to
the value to be returned.
b) ornamental expenses—The same rule as in
total return, unless the property is physically
divided and the ornament happens to be lo-
7 ART. 546, par. 1. Necessary expenses shall be refunded to every pos-
sessor; but only the possessor in good faith may retain the thing until he has
been reimbursed therefor.
8 ART. 546, par. 2. Useful expenses shall be refunded only to the pos -
sessor in good faith with the same right of retention, the person who has de -
feated him in the possession having the option of refunding the amount of the
expenses or of paying the increase in value which the thing may have acquired
by reason thereof. (453a)
9 ART. 548. Expenses for pure luxury or mere pleasure shall not be re-
funded to the possessor in good faith; but he may remove the ornaments with
which he has embellished the principal thing if it suffers no injury thereby,
and if his successor in the possession does not prefer to refund the amount
expended. (454)
cated in the portion assigned to the donee, in

which case he will have all the rights of own-
ership.
III. Confusion in terminology.—As correctly pointed out
by Justice J.B.L. Reyes and Senator Tolentino, the situation
treated in this article is really a case of reduction of inofficious
donations and the rules set forth in this article really belong in
the provisions on inofficious donations in Articles 909, 910,
and 911 (supra). A good deal of confusion would have been
avoided if the Code had not insisted on using the term collation
so variedly.
ARTICLE 1077. Should any question arise among the
co-heirs upon the obligation to bring to collation or as to
the things which are subject to collation, the distribution of
the estate shall not be interrupted for this reason, provided
adequate security is given. (1050)
The division and distribution of the estate can be made
partially, should there be controversy as to the inclusion of cer-
tain items either in the computation of the estate’s value or the
imputation of heirs’ shares. The distribution can proceed on the
items that are not controverted.
SECTION 6.—PARTITION AND DISTRIBUTION OF ESTATE
SUBSECTION 1.—PARTITION
Partition:
The immediate effect of the decedent’s death is the vesting

of the successional rights of the successors, because—in Art.
777’s infelicitous language—“the rights to the succession are
transmitted from the moment of the death of the decedent.”
What the successors acquire vested rights over is the net
estate and, as already explained earlier (Vide Article 908, su-
pra), the net estate is what remains after all the unpaid debts
of the decedent are paid, and the value of all the donations inter
vivos is added. Thus, debts first have to be paid; it is possible,
if the debts exceed the assets, that after the debts are paid,
there will be no estate to speak of.
If, however, the decedent’s gross assets exceed his liabili-

ties, or if there are inofficious donations to be returned, his net
estate passes to his successors (heirs, legatees, devisees) at the
precise moment of death. The estate, however, is a mass of
properties, usually consisting of various items. The immediate
effect, therefore, of the decedent’s death—as far as successional
law is concerned—is a co-ownership of the heirs over the entire
mass. (The legatees and devisees will acquire a right to the spe-
cific items given to them, assuming the legacies and devises are
not inofficious).
The actual partition of the estate among the heirs, termi-
nating the co-ownership can be done basically through two
methods:
I. Extrajudicial agreement among the heirs or
II. Judicial proceedings.
The sequence may be outlined thus:
I. Upon decedent’s death—co-ownership of heirs over net
hereditary or partible estate
II. Subsequent partition
1. by extrajudicial agreement (Rule 74, Sec. 1, Re-
vised Rules of Court), or
2. through judicial order in appropriate settlement
proceedings (Rule 90, Revised Rules of Court).
Actually, the judicial proceeding in which the partition is
ordered comprises the entire settlement of the estate of the de-
cedent, covered by Rules 73 to 90 of the Rules of Court.
In this part of successional law; i.e. the partition of the es-
tate, substantive law and procedural law intersect.
ARTICLE 1078. Where there are two or more heirs,

the whole estate of the decedent is, before its partition,
owned in common by such heirs, subject to the payment of
debts of the deceased, (n)
The meaning of this article has been explained in the in-
troductory comments to this Subsection.
ARTICLE 1079. Partition, in general, is the separa-

tion, division and assignment of a thing held in common
among those to whom it may belong. The thing itself may
be divided, or its value, (n)
I. Partition ends the co-ownership among the co-heirs as
to the thing partitioned.
II. Kinds of partition:
A. Actual—physical division of the thing among the
co-heirs
B. Constructive—Any act, other than physical divi-
sion, which terminates the co-ownership (such as
sale to a third person [Vide Articles 1082 and
1086, infra])
ARTICLE 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 le-
gitime of the compulsory heirs.
A parent who, in the interest of his or her family, de-
sires to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted
him inthis article, by ordering that the legitime of the
otherchildren to whom the property is not assigned, be
paid in cash. (1056a)
Partition by the causante:
I. A. The causante (decedent) can himself effect the parti-
tion of his estate.
1. Nature of partition by causante—A partition made

by the causante has the following characteristics:
a) it takes effect only upon death;
b) it is revocable as long as the causante is alive;
hence the causante can change or modify it,
or even rescind it during his lifetime.
[Vide J.L.T. Agro v. Balansag, 453 SCRA 211
[2005])
These characteristics stem from the fact that the partition

is based on succession as the mode of transfer, and succession
is necessarily mortis causa. Succession, in our law, cannot take
place during the causante's lifetime; that would be a donation
inter vivos, not succession.
In no case can the legitimes be impaired (Zaragoza v. CA,
341 SCRA 309 [2000]).
2. How causante may make the partition:
a) by will, or
b) by act inter vivos.
i) Form of partition by act inter vivos.—There
is authority to the effect that a partition in-
ter vivos should be in writing and in a public
instrument. (Fajardo v. Fajardo, 54 Phil.
842(1930]). Vide, however the obiter in
Chavez v. IAC (191 SCRA 211(1990]) that
even an oral partition is valid.
ii) In case of a partition inter vivos, must there
be a prior will?
1. Certainly, a mere partition inter vi-

vos which does not observe the formalities
of a will cannot, by itself, make testamen-
tary dispositions, because that would cir-
cumvent the requirement of law that dispo-
sitions mortis causa can be made only by
means of a will. A person cannot, in the
guise of making a partition, make disposi-
tion of property to take effect upon his
death.
Legasto vs. Verzosa

54 Phil. 766 (1930)
VILLA-REAL, J.:
xxx xxx xxx
On May 13, 1925, Sabina Almadin executed a

will (Exhibit A-2), devising certain parcels of land be-
longing to her, to her four nieces, Maria Verzosa,
Oliva Verzosa, Toribia Verzosa, and Ruperta Palma,
daughters of her sister Catalina Almadin, designating
the parcels to be given to each.
On August 8, 1925, Sabina Almadin partitioned
her property among her aforesaid sister and nieces
executing a deed to her niece, Maria Verzosa, assign-
ing and making over to her three parcels of her land
therein described. On September 23, 1925, Maria
Verzosa and Sabina Almadin appeared before the
deputy provincial assessor and municipal secretary of
Binan, Laguna, and made two sworn statements, xxx,
wherein the former stated that she had purchased the
parcels of land described in the assignment xxx, from
Sabina Almadin, and the latter in turn declared that
she had sold them to Maria Verzosa, and that said
vendee had already claimed them as her property for
the payment of the land tax.
On the same day, August 8, 1925, Sabina Al-
madin executed a deed in favor of her niece Oliva Ver-
zosa, assigning to her two parcels of land described in
said instrument, and on October 14, 1925, assignor
and assignee appeared before the aforesaid deputy
provincial assessor and municipal secretary of Binan,
Laguna, and subscribed two sworn statements, the
former stating that she had sold the two parcels of
land described in the deed of assignment, xxx, to the
latter, and the latter in turn stating that she had pur-
chased of the former the same parcels of land, the
ownership of which had already been claimed by
Oliva Verzosa by a tax declaration in her own name
on September 25, and October 13, 1925, respectively.
On the said day August 8, 1925, Sabina Al-

madin executed a deed, xxx, in favor of her niece
Toribia Verzosa, assigning to her the four parcels of
land therein described; and on September 23, 1925,
assignor and assignee appeared before the aforesaid
deputy provincial assessor and municipal secretary of
Binan, Laguna, and subscribed a sworn statement,
xxx, the former stating that she had sold to Toribia
Verzosa the parcel of land described therein xxx, and
the latter stating that she had purchased said parcel
of the former and declared it to be her own property
for the payment of the land tax.
Again on the said day, August 8, 1925, Sabina
Almadin executed a deed to her niece Ruperta Palma
assigning to her three parcels of land described
therein; and on September 23, 1925, assignor and
assignee appeared before the deputy provincial asses-
sor and municipal secretary of Binan, Laguna, and
subscribed two sworn statements wherein the former
stated that she had sold to the latter the parcels of
land described in the deed of assignment and the lat-
ter stated that she had purchased said parcels of land
described in the deed of assignment of the former,
and had declared them to be her own property for the
payment of the land tax.
The assignees, Maria Verzosa, Toribia Verzosa,
Oliva Verzosa and Ruperta Palma, took possession of
their respective parcels thus ceded by Sabina Al-
madin, and have to this day been cultivating them as
exclusive owners thereof.
Sabina Almadin passed away on February 22,
1926 and on March 12th of the same year, her sister,
Catalina Almadin, x x x , propounded her will, x x x ,
for probate. By virtue of the decision rendered by the
Court of First Instance of Laguna on December 22,
1926 x x x , affirmed by this court on appeal x x x ,
said will was not admitted to probate. Vicencio
Legasto, then, the special administrator appointed by
said Court of First Instance of Laguna to take charge
of Sabina Almadin’s estate, filed the complaint which
originated this case, claiming the delivery of the par-
cels of land described in his aforesaid complaint as

amended.
The first question to be decided in the instant
appeal is whether the partition made by Sabina Al-
madin of her property among her nieces, the defen-
dants and appellants herein, was valid and enforce-
able.
“ART. 1056. If the testator should make a
partition of his property by an act inter vivos, or
by will, such partition shall stand in so far as it
does not prejudice the legitime of the forced
heirs.”
The Supreme Court of Spain, in a decision ren-
dered on June 13, 1903, laid down the following doc-
trine:
“Considering that the language of Article
1056 cannot be interpreted to mean that a per-
son may, by acts inter vivos, partition his prop-
erty referred to in the section wherein said arti-
cle is found, without the authority of a testa-
ment containing an expression of his last will, or
the authority of law, for, otherwise, a partition
thus made would be tantamount to making a
will in a manner not provided for, authorized,
nor included in the chapter referring to testa-
ments, and especially, to the forms thereof,
which is entirely different from the legal conse-
quences of a free disposition made by parents
during their lifetime, whereby they give to their
children the whole or a part of their property”:
xxx xxx xxx
Manresa comments on the same article as fol-
lows:
“A distinction must be made between the
disposition of property and its division; and the
provision of Article 1056 authorizing the testator
to dispose of his property by acts inter vivos or
by last will, must be understood in accordance
with this distinction. The idea is to divide the es-

tate among the heirs designated by the testator.
This designation constitutes the disposition of
the properties to take effect after his death, and
said act must necessarily appear in the testa-
ment because it is the expression of the testa-
tor’s last will and must be surrounded by ap-
propriate formalities. Then comes the second
part, to wit, the division in conformity with that
disposition, and the testator may make this divi-
sion in the same will or in another will, or by an
act inter vivos. With these words the law, in Arti-
cle 1056 as well as in Article 1057, x x x , makes
allusion to the forms or manner of making the
partition and not to the effects thereof, which
means that, for purposes of partition the formal
solemnities which must accompany every testa-
mentary last will are not necessary. Neither is it
necessary to observe the special formalities re-
quired in case of donations, because it is not a
matter of disposing gratuitously of properties,
but of dividing those which already have been
legally disposed of.”
It is thus seen that both the Spanish Supreme
Court and the learned and authoritative commenta-
tor, Manresa, are of opinion that a testator may, by
an act inter vivos, partition his property, but he must
first make a will with all the formalities provided for
by law. And it could not be otherwise, for without a
will there can be no testator; when the law, therefore,
speaks of the partition inter vivos made by the testa-
tor of his property, it necessarily refers to that prop-
erty which he has devised to his heirs. A person who
disposes of his property gratis inter vivos is not called
a testator, but a donor. In employing the word “testa-
tor”, the law evidently desired to distinguish between
one who freely donates his property in life and one
who disposes of it by will to take effect after his death.
Sabina Almadin must have been aware of the
necessity of a prior will, since before making the parti-
tion of her property among her nieces, the defendants
herein, she executed a will giving to each of them the
same parcels of land which she later transferred to

them gratuitously.
xxx xxx xxx
As Sabina Almadin’s will was disallowed for the
reason that it did not contain all the essential requi-
sites provided by law for its validity, can the aforesaid
partition of her estate made by said testatrix among
her nieces be deemed valid? Certainly not; for it is an
indispensable condition precedent to a testator parti-
tioning his estate inter vivos that he have made a valid
will disposing of said estate among his heirs; and if
this will be declared null and void, the partition made
by the testator in pursuance of its provisions is like-
wise null and void, for where these provisions cease to
exist, the partition made in conformity therewith also
becomes null and void, as the cessation of the cause
implies the cessation of the effect.
And since Sabina Almadin’s will is null and void
for lack of the legal requisites, consequently, the par-
tition which she made of her estate among her nieces
the defendants-appellants herein, during her lifetime
is likewise null and void.
2. Legasto lays down the rule that a partition inter vivos

is valid only if there is a supporting will on which the partition
is based. The Legasto ruling was reiterated in Alsua-Betts v. CA
(92 SCRA 332 [1979]) and Dimayuga v. CA (129 SCRA 110
[1984]); Alsua-Betts in fact amplified the ruling by holding that
the partition inter vivos is void even if a subsequent will is exe-
cuted in conformity with the provisions of the prior partition.
3. Possible effect of amended wording of Article 1080; The
Legasto, Alsua-Betts, and Dimayuga, rulings were all decided
under Article 1056 of the Spanish Code, which is the predeces-
sor provision of the present Article 1080.
The wording of the old Article 1056, however, is not identi-
cal to that of the present article:
“Article 1056. Cuando el testador hiciere, por

acto entre vivos, o por ultima voluntad, la particion de
sus bienes, se pasara por ella, en cuanto no perju-

dique a la legitima de los herederos forzosos.
xxx xxx xxx”
Note that the original provision specified “testator” (“testa-

dor”). In light of that specific allusion, the Legasto, Alsua-Betts,
and Dimayuga rulings were correct applications of the law.
Article 1080, however, does not say “testator”; it says “per-
son.” Is the change significant? We should assume that the
change in wording was not unintentional, but an indication of
an intent to modify the operation of the law. We can, therefore,
with reason conclude that, under the present provision, a parti-
tion inter vivos can be validly made even without a prior sup-
porting will, provided that it is not used to make mortis causa
dispositions. Nothing can take the place of a will to dispose of
property mortis causa Hence, the only way a partition without a
will can be valid is by following strictly the intestate portions
provided by law; i.e. the partition should conform exactly to the
portions provided by law in intestate succession, for then the
causante would not be making testamentary dispositions in the
partition—the dispositions would be by virtue of intestate suc-
cession.
The case of Chavez v. IAC (191 SCRA. 211(1990]), decided
under the present article, and recognizing the validity of a par-
tition inter vivos even without a supporting will could have been
cited as authority for the view just presented above, but for the
fact that the authoritative force of Chavez is considerably di-
minished by its rulings: 1) giving an irrevocable character to
the partition inter vivos, and 2) allowing a conveyance by the
compulsory heirs of their legitimes even during their lifetimes.
For obvious reasons, these two rulings should raise eyebrows
very high.
II. Limitation on partition by causante.—The legitimes of
the causante’s compulsory heirs cannot be impaired by parti-
tion made by him, whether in a will or by an act inter vivos.
This limitation is obvious, in light of Article 904 (supra).
III. Par. 2—Partition to keep an enterprise intact:

1. It seems only a parent is allowed the privilege of
this paragraph.
2. It is understood that this privilege (to make the
partition in such a way as to keep the enterprise
intact) can be exercised only if enough cash or
other property is available to satisfy the legitimes
of the other children. Under no circumstances
should the legitimes be impaired.
ARTICLE 1081. A person may, by an act inter vivos
or mortis causa, intrust the mere power to make the parti-
tion after his death to any person who is not one of the co-
heirs.
The provisions of this and of the preceding article shall
be observed even should there be among the co-heirs a mi-
nor or a person subject to guardianship; but the mandatary,
in such case, shall make an inventory of the property of the
estate, after notifying the co-heirs, the creditors, and the
legatees or devisees. (1057a)
Mandatary cannot be a co-heir—The reason for this prohi-
bition is to ensure fairness and impartiality.
ARTICLE 1082. Every act which is intended to put an
end to indivision among co-heirs and legatees or devisees is
deemed to be a partition, although it should purport to be a
sale, an exchange, a compromise, or any other transaction,
(n)
Constructive Partition—Partition may be actual or con-
structive (Vide Article 1079, supra). This article refers to cases
of constructive partition:
Tuason vs. Tuason, Jr. & Gregorio Araneta, Inc.
88 Phil. 428 (1951)
MONTEMAYOR, J.:
In 1941 the sisters Angela I. Tuason and Nieves

Tuason de Barreto and their brother Antonio Tuason,
Jr., held a parcel of land with an area of 64,928.6 sq.

m. x x x, in Sampaloc, Manila, in common, each own-
ing an undivided 1/3 portion. Nieves wanted and
asked for a partition of the common property, but fail-
ing in this, she offered to sell her 1/3 portion. It
seems that the objection to dividing the property was
that it would lose in value by the proposed partition.
The share of Nieves was offered for sale to her sister
and her brother but both declined to buy it. The offer
was later made to their mother but the old lady also
declined to buy, saying that if the property later in-
creased in value, she might be suspected of having
taken advantage of her daughter. Finally, the share of
Nieves was sold to Gregorio Araneta, Inc., a domestic
corporation, and a new Certificate of Title No. 61721
was issued in lieu of the old title No. 60911 covering
the same property. The three co-owners agreed to
have the whole parcel subdivided into small lots and
then sold, the proceeds of the sale to be later divided
among them. This agreement is embodied in a docu-
ment xxx entitled “Memorandum of Agreement”
xxx.
Before, during and after the execution of this
contract, Atty. J. Antonio Araneta was acting as the
attomey-in-fact and lawyer of the two co-owners, An-
gela Tuason and her brother Antonio Tuason, Jr. At
the same time he was a member of the Board of Di-
rectors of the third co-owner, Araneta, Inc.
The pertinent terms of the contract may be
briefly stated as follows: The three co-owners agreed
to improve the property by filling it and constructing
roads and curbs on the same and then subdivide it
into small lots for sale. Araneta, Inc. was to finance
the whole development and subdivision: it was to pre-
pare a schedule of prices and conditions of sale, sub-
ject to the approval of the two other co-owners; it was
invested with authority to sell the lots into which the
property was to be subdivided, and execute the corre-
sponding contracts and deeds of sale; it was also to
pay the real estate taxes due on the property or of any
portion thereof that remained unsold, the expenses of
surveying, improvements, etc., all advertising ex-
penses, including expenses, salaries of personnel,

commissions, office and legal expenses, including ex-
penses in instituting all actions to eject all tenants or
occupants on the property; and it undertook the duty
to furnish each of the two co-owners, Angela and An-
tonio Tuason, copies of the subdivision plans and the
monthly sales and rents and collections made
thereon. In return for all this undertaking and obliga-
tion assumed by Araneta, Inc., particularly the finan-
cial burden, it was to receive 50 per cent of the gross
selling price of the lots, and any rents that may be
collected from the property, while in the process of
sale, the remaining 50 per cent to be divided in equal
portions among the three co-owners so that each will
receive 16.33 per cent of the gross receipts.
xxx xxx xxx
On September 16, 1944, Angela I. Tuason re-
voked the powers conferred on her attomey-in-fact
and lawyer, J. Antonio Araneta. Then in a letter dated
October 19, 1946, Angela notified Araneta, Inc. that
because of alleged breach of the terms of the “Memo-
randum of Agreement” and abuse of powers granted
to it in the document, she had decided to rescind said
contract and she asked that the property held in
common be partitioned. Later, on November 20, 1946,
Angela filed a complaint in the Court of First Instance
of Manila asking the court to order the partition of the
property in question and that she be given 1 /3 of the
same including rents collected during the time that
Araneta, Inc., administered said property.
The suit was directed principally against Ara-
neta, Inc. Plaintiffs brother, Antonio Tuason, Jr. one
of the co-owners evidently did not agree to the suit
and its purpose, for he joined Araneta, Inc. as a co-
defendant.
xxx xxx xxx
But the main contention of the appellant is that
the contract should be declared null and void because
its terms, x x x , violate the provisions of Art. 400 of
the Civil Code, which for the purposes of reference we
quote below:
“ART. 400. No co-owner shall be obliged

to remain a party to the community. Each may,
at any time, demand the partition of the thing
held in common.
“Nevertheless, an agreement to keep the
thing undivided for a specified length of time,
not exceeding ten years, shall be valid. This pe-
riod may be a new agreement."
We agree with the trial court that the provisions
of Art. 400 of the Civil Code are not applicable. The
contract (Exh. 6) far from violating the legal provision
that forbids a co-owner being obliged to remain a
party to the community, precisely has for its purpose
and object the dissolution of the co-ownership and of
the community by selling the parcel held in common
and dividing the proceeds of the sale among the co-
owners. The obligation imposed in the contract to pre-
serve the co-ownership until all the lots shall have
been sold, is a mere incident to the main object of dis-
solving the co-ownership. By virtue of the document
Exh. 6, the parties thereto practically and substan-
tially entered into a contract of partnership as the
best and most expedient means of eventually dissolv-
ing the co-ownership, the life of said partnership to
end when the object of its creation shall have been at-
tained.
ARTICLE 1083. Every co-heir has a right to demand

the division of the estate unless the testator should have
expressly forbidden its partition, in which case the period
of indivision shall not exceed twenty years as provided in
article 494. This power of the testator to prohibit division
applies to the legitime.
Even though forbidden by the testator, the co-owner-
ship terminates when any of the causes for which partner-
ship is dissolved takes place, or when the court finds for
compelling reasons that division should be ordered, upon
petition of one of the co-heirs. (105 la)
Partition generally a matter of right—As a general rule,

any co-heir may demand partition at any time. This is the same
rule laid down in Article 494, par. I.10
A. Exceptions—There are some instances when partition
cannot be demanded.
1. When forbidden by the testator (for a period not
exceeding 20 years) [This enforced co-ownership
may cover even the legitimes].
Exceptions: Despite this imposed indivision, partition
may be demanded:
a) when any of the causes for the dissolution of a
partnership occurs [Vide Articles 1830-1831].11
10 ART. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the partition of the thing
owned in common, insofar as his share is concerned.
11 ART. 1830. Dissolution is caused:
(1) Without violation of the agreement between the partners:

(a) By the termination of the definite term or particular undertaking
specified in the agreement;
(b) By the express will of any partner, who must act in good faith,
when no definite term or particular undertaking is specified;
(c) By the express will of all the partners who have not assigned their
interests or suffered them to be charged for their separate debts, either before
or after the termination of any specified term or particular undertaking;
(d) By the expulsion of any partner from the business bona fide in ac-
cordance with such a power conferred by the agreement between the partners;
(2) In contravention of the agreement between the partners, where the
circumstances do not permit a dissolution under any other provision of this
article, by the express will of any partner at any time;
(3) By any event which makes it unlawful for the business of the part-
nership to be carried on or for the members to cany it on in partnership;
(4) When a specific thing, which a partner had promised to contribute
to the partnership, perishes before the delivery, in any case by the loss of the
thing, when the partner who contributed it having reserved the ownership
thereof, has only transferred to the partnership the use or enjoyment of the
same; but the partnership shall not be dissolved by the loss of the thing when
it occurs after the partnership has acquired the ownership thereof;
(5) By the death of any partner;
(6) By the insolvency of any partner or of the partnership;
(7) By the civil interdiction of any partner;
(8) By decrees of court under the following article. (1700a and 1701a)
ART. 1831. On application by or for a partner the court shall decree a
dissolution whenever:
b) when the court finds compelling reasons for

partition.
2. When the co heirs agree on indivision (for a period
not exceeding 10 years, renewable for like periods)
(Article 494, par. 2).12
3. When the law prohibits partition (e.g. Art. 159,
Family Code).
ARTICLE 1084. Voluntary heirs upon whom some
condition has been imposed cannot demand a partition un-
til the condition has been fulfilled; but the other co-heirs
may demand it by giving sufficient security for the rights
which the former may have in case the condition should be
complied with, and until it is known that the condition has
not been fulfilled or can never be complied with, the parti-
tion shall be understood to be provisional. (1054a)
I. Application of article—Institutions with a suspensive
condition.
II. Rationale—
(1) A partner has been declared insane in any judicial proceeding or is

shown to be of unsound mind;
(2) A partner becomes in any other way incapable of performing his
part of the partnership contract;
(3) A partner has been guilty of such conduct as tends to affect preju-
dicially the carrying on of the business;
(4) A partner wilfully or persistently commits a breach of the partner-
ship agreement, or otherwise so conducts himself in matters relating to the
partnership business that it is not reasonably practicable to carry on the busi-
ness in partnership with him;
(5) The business of the partnership can only be carried on at a loss;
(6) Other circumstances render a dissolution equitable.
On the application of the purchaser of a partner's interest under arti-
cle 1813 or 1814;
(1) After the termination of the specified term or particular under-
taking;
(2) At any time if the partnership was a partnership at will when the
interest was assigned or when the charging order was issued, (n)
12 ART. 494, par. 2. Nevertheless, an agreement to keep the thing undi-
vided for a certain period of time, not exceeding ten years, shall be valid. This
term may be extended by a new agreement.
1) The heir instituted under a suspensive condition

acquires no rights unless and until the condition
happens.
2) The other heirs not so instituted, however, should
not be deprived of their right to demand partition,
subject to the obligation to protect the inchoate
right of the conditional heir, by furnishing ade-
quate security.
ARTICLE 1085. In the partition of the estate, equa-

lity shall be observed as far as possible, dividing the prop-
erty into lots, or assigning to each of the co-heirs things of
the same nature, quality and kind. (1061)
I. Equality among co-heirs
1) Quantitative—The shares of the co-heirs are not
necessarily equal in value, but are determined by
law and by will.
2) Qualitative—Whatever the aliquot portions be,
however, the law mandates equality in nature,
kind, and quality, so that if A gets a parcel of rice
land, B should also be given one.
Like Article 1073, this article considers both qualitative
and quantitative equality as ideal.
Exceptions/Qualifications to the requirement of qualitative
equality:
a) if the causante has made the partition himself;
b) if the co-heirs agree otherwise;
c) if qualitative equality impossible or impracticable.
ARTICLE 1086. Should a thing be indivisible, or

would be much impaired by its being divided, it may be ad-
judicated to one of the heirs, provided he shall pay the oth-
ers the excess in cash.
Nevertheless, if any of the heirs should demand that
the thing be sold at public auction and that strangers be
allowed to bid, this must be done. (1062)
This is another instance of constructive partition: sale of

the thing and division of the proceeds among the heirs. This
will have to be resorted to if the thing is essentially indivisible
or if physical partition will so diminish its value that it becomes
unserviceable or useless.
To whom thing may be sold:
1. to a third person, or
2. if none of the co-heirs object, to any one of them
who is interested. [If more than one are interested
in buying, they may buy it jointly and have the
proceeds distributed among the others to the ex-
tent of their respective shares. But the co-
ownership will continue as to the buyers.]
ARTICLE 1087. In the partition the co-heirs shall re-
imburse one another for the income and fruits which each
one of them may have received from any property of the
estate, for any useful and necessary expenses made upon
such property, and for any damage thereto through malice
or neglect. (1063)
I. Mutual accounting.—Upon partition, the co-heirs shall
render a mutual accounting of benefits received and expenses
(necessary and useful) incurred by each of them.
Thus, any heir who, between the decedent’s death and
partition time, received fruits from the estate shall reimburse
his co-heirs their respective shares, in proportion to the heredi-
tary interest of each. Similarly, any heir who incurred neces-
sary or useful expenses on the hereditary estate may demand
reimbursement from his co-heirs in the same proportion.
II. This article lays down the same rule contained in the
Title on Co-ownership.13
ARTICLE 1088. Should any of the heirs sell his he-
reditary rights to a stranger before the partition, any or all
13 ART. 500. Upon partition, there shall be a mutual accounting for
benefits received and reimbursements for expenses made. Likewise, each co-
owner shall pay for damages caused by reason of his negligence or fraud.
of the co-heirs may be subrogated to the rights of the pur-

chaser by reimbursing him for the price of the sale, pro-
vided they do so within the period of one month from the
time they were notified in writing of the sale by the vendor.
(1067a)
I. Right of an heir to convey share before partition—It

has already been pointed out earlier that successional rights
vest upon the decedent’s death. Consequently, an heir may
dispose of his aliquot share after that time; he may do this gra-
tuitously or onerously, [cf De Borja v. De Borja, 46 SCRA 577)
II. Right of redemption in case of sale—In the event any
co-heir sells his aliquot portion to a stranger before partition
time, this article entitles any co-heir to redeem the portion sold.
A. Sale must be to a stranger—A stranger within the
meaning of this article is anyone who is not a co-
heir [Basa v. Aguilar, 117 SCRA 128 (1982), inter-
preting meaning of “third person” under Article
1620).
B. When right of redemption may be exercised—The
right may be exercised only before partition, not af-
ter. (Caro v. CA, 113 SCRA 10 (1982), interpreting
similar rule in Article 1620).
III. Requirement of written notice—The article gives the
co-heirs the right of redemption, which can be exercised within
one month from written notice to them by the vendor.
Written notice, therefore is required; without it the period
does not commence to run. The Supreme Court has, as a rule,
interpreted this requirement of written notice strictly.
Garcia vs. Calaliman
172 SCRA 201 (1989)
PARAS, J.:
xxx xxx xxx

On February 11, 1946, one Gelacio Garcia died
intestate, leaving a parcel of unregistered land about
372 sq. meters, situated in the Municipality of Tub-

ungan, Province of Iloilo. On his death the property
was inherited by his nephews, nieces, grandnephews
who are the descendants of his late brothers, Pedro,
Simeon, Buenaventura and Marcos.
On December 3, 1954, the heirs, Juanita Ber-
tomo, Joaquin Garcia, Porfirio Garcia, Dioscoro Gar-
cia, Flora Garcia, Consolacion Garcia, Remedios Gar-
cia, Trinidad Garcia, Baltazar Garcia signed a docu-
ment entitled, "Extrajudicial Partition and Deed of
Sale” x x x .
xxx xxx xxx
The last paragraph of the same document
states:
“That for and in consideration of the sum
of FIVE HUNDRED PESOS (P500.00), Philippine
Currency, to us in hand paid by the spouses,
JOSE CALALIMAN, and PACIENCIA TRA-
BADILLO, all legal age, Filipinos and residents of
the municipality of Tubungan, province of Iloilo,
Philippines, receipt of which we hereby acknowl-
edged (sic) and confessed (sic) to our entire sat-
isfaction, do by these presents, cede, sell, convey
and transfer the above-described parcel of land
unto the said spouses, Jose Calaliman and Pa-
ciencia Trabadillo, their heirs, successors and
assigns free from all liens and encumbrances
whatsoever.”
The document was inscribed in the Register of
Deeds of Iloilo on February 24, 1955.
On December 17, 1954 another group of heirs,
Rosario Garcia, Dolores Rufino, Resurreccion Taga-
rao, Serafin Tagarao, Buenaventura Tagarao, Fortu-
nata Garcia and Simeon Garcia, all residents of Isa-
bela, Negros Occidental, also sold to the spouses Jose
Calaliman and Paciencia Trabadillo through their at-
tomey-in-fact, Juanito Bertomo, their shares, rights,
interest and participation in the same parcel of land.
The Deed of Sale was registered in the Register of
Deeds of Iloilo also on December 22, 1954.
On May 7, 1955 the heirs Francisco Garcia, Paz

Garcia, and Maria Garcia, petitioners herein, filed
against the spouses Jose Calaliman and Paciencia
Trabadillo, private respondents herein, Civil Case No.
3489 with the Court of First Instance of Iloilo, for legal
redemption of the 3/4 portion of the parcel of land
inherited by the heirs from the late Gelacio Garcia,
which portion was sold by their co heirs to the defen-
dants.
xxx xxx xxx
The main issue is whether or not petitioners
took all the necessaiy steps to effectuate their exercise
of the right of legal redemption within the period fixed
by Art. 1088 of the Civil Code.
It is undisputed that no notification in writing
was ever received by petitioners about the sale of the
hereditary interest of some of their co-heirs in the
parcel of land they inherited from the late Gelacio
Garcia, although in a letter dated June 23, 1953 peti-
tioner Francisco Garcia wrote one of his co-heirs,
Joaquin Garcia, who is an uncle of petitioners, pro-
posing to buy the hereditary interests of his co-heirs
in their unpartitioned inheritance, (xxx). Although
said petitioner asked that this letter be answered “in
order that I will know the results of what I have re-
quested you,” there is no proof that he was favored
with one.
Petitioners came to know that their co-heirs
were selling the property on December 3, 1954 when
one of the heirs, Juanito Bertomo, asked Petitioner
Paz Garcia to sign a document prepared in the Mu-
nicipality of Tubungan because the land they inher-
ited was going to be sold to private respondent, Jose
Calaliman. The document mentioned by petitioner Paz
Garcia could be no other than the one entitled “Extra-
Judicial Partition and Deed of Sale” dated December
3, 1954 as it is in this document that the name of Paz
Garcia, Maria Garcia and Amado Garcia appear un-
signed by them.
It is not known whether the other heirs whose
names appear in the document was approached by
Juanito Bertomo. Paz Garcia, however, testified that

she immediately informed her brother Francisco that
Juanita Bertomo wanted to sell the land to Jose Cala-
liman. On December 26, 1954 he wrote respondents
giving them notice of his desire to exercise the right of
legal redemption and that he will resort to court ac-
tion if denied the right. The respondents received the
letter on January 13, 1955 but petitioner Francisco
Garcia did not get any answer from them. Neither did
respondents show him a copy of the document of sale
nor inform him about the price they paid for the sale
when he went home to Tubungan from Manila some-
time in March 1955 and went to see the respondent
spouse about the matter on March 24, 1955.
Because of the refusal of respondent Jose Cala-
liman to show him the document of sale or reveal to
him the price paid for the parcel of land, petitioner
Francisco Garcia went to the Office of the Register of
Deeds on the same date, March 24, 1955 and there
found two documents of sale regarding the same par-
cel of land.
Petitioners filed the case for legal redemption
with the trial court on May 7, 1955. 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 su-
perfluous, 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.
The issue has been squarely settled in the case
of Castillo v. Samonte, where this Court 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 ver-
bal notice or information was sufficient (106
Phil. 1023 [I960]).”
In the above-quoted decision the Court did not
consider the registration of the deed of sale with the
Register of Deeds sufficient notice, most especially be-
cause the property involved was unregistered land, as
in the instant case. The Court took note of the fact
that the registration of the deed of sale as sufficient
notice of a sale under the provision of Section 51 of
Act No. 496 applies only to registered lands and has
no application whatsoever to a case where the prop-
erty involved is, admittedly, unregistered land.
Consistent with aforesaid ruling, in the interpre-
tation of a related provision (Article 1623 of the New
Civil Code) this Court had stressed that written notice
is indispensable, actual knowledge of the sale ac-
quired 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 uncer-
tainty 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 notifica-
tion of redemption (Conejero et al. v. Court of Appeals
et al., 16 SCRA 775 [1966]; Etcuban v. Court of Ap-
peals, et al., 148 SCRA 507 [1987]; Cabrera v.
Villanueva, G.R. No. 75069, April 15, 1988).
x x x , petitioners have not lost their right to re-
deem, for in the absence of a written notification of
the sale by the vendors, the 30-day period has not
even begun to run.
The Court has, in at least three recent cases, however, re-

laxed the requirement of written notice and held that actual
notice to, or knowledge by, the co-heir achieves the purpose of

the law and meets the legal requirement: Alonzo v. IAC, 150
SCRA 259 (1987); Distrito v. CA, 197 SCRA 606 (1991); Fernan-
dez v. Tarun, 391 SCRA 653 [2002]. Alonzo declared, however,
that it was not abandoning the previous rulings but was simply
laying down an exception to the general rule, in view of peculiar
circumstances. Whether these three cases are merely excep-
tions or are portents of changing jurisprudence, remains to be
seen. The subsequent case of Primary Structures v. Valencia,
409 SCRA 371 [2003], characterizing the written notice as
“mandatory” and stating that “notwithstanding actual knowl-
edge of a co-owner, the latter is still entitled to a written notice”
may indicate a return to the previous strict interpretation. The
subsequent case of Cua v. Vargas, 506 SCRA 374 [2006] also
adopts the strict interpretation. And so swings the pendulum.
IV. Article 1088 and Article 1620—Article 1620 lays down
the same rule as Article 1088:
ART. 1620. A co-owner of a thing may exercise
the right of redemption in case the shares of all the
other co-owners or of any of them, are sold to a third
person. If the price of the alienation is grossly exces-
sive, the redemptioner shall pay only a reasonable
one.
Should two or more co-owners desire to exercise

the right of redemption, they may only do so in pro-
portion to the share they may respectively have in the
thing owned in common.
Article 1620 applies where the co-ownership covers spe-

cific property: Article 1088, where the co-ownership covers the
mass of the hereditary estate. But the distinction is academic.
The rule is the same.
V. Where more than one co-owner wish to redeem—

Implicit in Article 1088—And explicit in Article 1620—is that,
in such a case, all the co-owners wishing to redeem may do so,
but in proportion to each one’s hereditary interest over the
mass.
ARTICLE 1089. The titles of acquisition or ownership

of each property shall be delivered to the co-heir to whom
said property has been adjudicated. (1065a)
This is obvious and self-explanatory. This is particularly

important in case of registered land because the old title has to
be surrendered so that a new title in the name of the heir may
be issued.
ARTICLE 1090. When the title comprises two or more

pieces of land which have been assigned to two or more co-
heirs, or when it covers one piece of land which has been
divided between two or more co-heirs, the title shall be de-
livered to the one having the largest interest, and authentic
copies of the title shall be furnished to the other co-heirs at
the expense of the estate. If the interest of each co-heir
should be the same, the oldest shall have the title. (1066a)
This article only provides for the right over the document.
The co-heirs, however, have the right to have the title divided
into individual titles, a separate one for each of the owners to
correspond to the separate portions held by them respectively.
SUBSECTION 2.—EFFECTS OF PARTITION

ARTICLE 1091. A partition legally made confers upon
each heir the exclusive ownership of the property adju-
dicated to him. (1068)
This article merely points out the obvious effect of parti-

tion; i.e., the termination of co-ownership.
ARTICLE 1092. After the partition has been made,

the co-heirs shall be reciprocally bound to warrant the title
to, and the quality of, each property adjudicated. (1069a)
I. Obligation of mutual warranty—Partition among co-

heirs imposes upon them the same mutual obligation of war-
ranties imposed among co-owners in general.14
14 ART. 501. Every co-owner shall, after partition, be liable for defects
of title and quality of the portion assigned to each of the other co-owners.
II. Rules on warranties:

The applicable rules on warranties are found in Articles
1547-1580, in the Title on Sales, insofar as those articles are
not inconsistent with the rules given in this subsection.
ARTICLE 1093. The reciprocal obligation of warranty
referred to in the preceding article shall be proportionate to
the respective hereditary shares of the co-heirs; but if any
one of them should be insolvent, the other co-heirs shall be
liable for his part in the same proportion, deducting the
part corresponding to the one who should be indemnified.
Those who pay for the insolvent heir shall have a right
of action against him for reimbursement, should his finan-
cial condition improve. (1071)
I. Proportional liability of co-heirs on warranty—Burdens
should be proportional to benefits.
II. Insolvency of one of obligors—Should one of the co-
heirs bound to make good the warranty be insolvent, his por-
tion shall be borne proportionally by all, including the one enti-
tled to the warranty:
Example:
1. Co-heirs are A, B, C, D, and E in equal shares of
P60,000.00 each.
2. B claims warranty for the total amount of his
share, for having been evicted.
3. A, C, D, and E have to contribute P12,000.00
each to make good the warranty. (Since there was
eviction in the amount of P60,000.00, it follows
that the total value to be partitioned was only
P240,000.00; hence, P48,000.00 each).
4. Should A be insolvent, his share of P12,000.00
shall be borne by all the others, including B.
Hence, C, D, and E have to contribute P3,000.00
more, making their individual liability
P15,000.00. B receives a total of P45,000.00 hav-
ing borne his own share of P3,000.00 from A’s in-
solvency.
III. Exception to right to reimbursement from insolvent
obligor: The obvious exception to this is insolvency judicially
declared, under the Insolvency Law, since judicially declared
insolvency extinguishes all obligations:
ARTICLE 1094. An action to enforce the warranty

among co-heirs must be brought within ten years from the
date the right of action accrues, (n)
Self-explanatory.
ARTICLE 1095. If a credit should be assigned as col-
lectible, the co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate, but only for his in-
solvency at the time the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the five years following the partition.
Co-heirs do not warrant bad debts, if so known to, and
accepted by the distributee. But if such debts are not as-
signed to a co-heir, and should be collected, in whole or in
part, the amount collected shall be distributed proportion-
ately among the heirs. (1072a)
I. Credit assigned to co-heir in partition—The warranty

covers only insolvency of the decedent’s debtor at the time of
partition, not subsequent insolvency, for which the co-heir
takes the risk.
Foolhardy is the co-heir who will accept a collectible as
part of his share in the partition. A credit, even under the best
of circumstances, is aleatory. Pqjaro en la mono mejor que cien
volando.
II. This warranty has a special prescriptive period of five

years.
III. Bad debt assigned to a co-heir—A co-heir who ac-
cepts a known bad debt as his share is either a fool or a maso-
chist.
ARTICLE 1096. The obligation of warranty among co-

heirs shall cease in the following cases:
(1) When the testator himself has made the partition,
unless it appears, or it may be reasonably presumed, that
his intention was otherwise, but the legitime shall always
remain unimpaired;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to
the partition, or has been caused by the fault of the distrib-
utee of the property. (1070a)
This article enumerates the instances when there is no

mutual warranty. It is not accurate to refer to it as a cessation,
since there was none to begin with. These are:
1. Partition by the testator himself (save where the
legitime has been impaired):
2. Agreement among the co-heirs to suppress the
warranty;
3. Supervening events causing the loss or the dimi-
nution in value;
4. Fault of the co-heir;
5. Waiver.
SUBSECTION 3 .—RESCISSION AND NULLITY

OF PARTITION
ARTICLE 1097. A partition may be rescinded or an-

nulled for the same causes as contracts. (1073a)
I. Causes for annulment:
ART. 1390. The following contracts are void-

able or annullable, even though there may have been
no damage to the contracting parties:
(1) Those where one of the parties is incapable
of giving consent to a contract;
(2) Those where the consent is vitiated by mis-

take, violence, intimidation, undue influence or fraud.
These contracts are binding, unless they are an-
nulled by a proper action in court. They are suscepti-
ble of ratification.
II. Causes for rescission:
ART. 1381. The following contracts are rescis-

sible:
(1) Those which are entered into by guardians

whenever the wards whom they represent suffer le-
sion by more than one-fourth of the value of the
things which are the object thereof:
(2) Those agreed upon in representation of ab-
sentees, if the latter suffer the lesion stated in the
preceding number;
(3) Those undertaken in fraud of creditors
when the latter cannot in any other manner collect
the claims due them;
(4) Those which refer to things under litigation
if they have been entered into by the defendants with-
out the knowledge and approval of the litigants or of
competent judicial authority;
(5) All other contracts specially declared by law
to be subject to rescission.
[Pars. 1 and 2 are modified by the following article.]
ARTICLE 1098. A partition, judicial or extrajudicial,

may also be rescinded on account of lesion, when any one
of the co-heirs received things whose value is less, by at
least one-fourth, than the share to which he is entitled,
considering the value of the things at the time they were
adjudicated. (1074a)
I. Lesion is economic injury, where the party receives less

than he is entitled to receive. Lesion is exceedingly difficult to
determine and evaluate and is viewed with increasing disfavor
by modem civil law.
616 Jottings and Jurisprudence A118- i oqq- i i o i
II. Amount of lesion.—The minimum extent of lesion for

rescission to be available is one-fourth (25%). Note the slight
variation from pars. 1 and 2 of Article 1381 (reproduced supra),
which specifies more than one-fourth. Evidently, in cases of par-
tition of the inheritance, Article 1098 applies.
III. An exception to this article is found in the following arti-
cle.
ARTICLE 1099. The partition made by the testator

cannot be impugned on the ground of lesion, except when
the legitime of the compulsory heirs is thereby prejudiced,
or when it appears or may reasonably be presumed, that the
intention of the testator was otherwise. (1075)
This article is an exception to the preceding article: A par-

tition made by the testator himself is not subject to rescission
even in case of lesion in the amount specified in the preceding
article, except in the following cases:
1. impairment of the legitime (even if the lesion is
less than one-fourth);
2. mistake by the testator or vitiation of his intent.
ARTICLE 1100. The action for rescission on account
of lesion shall prescribe after four years from the time the
partition was made. (1076)
Prescriptive period of 4 years.—This is the same period laid

down in the general rule of rescission of contracts (Article
1389).
ARTICLE 1101. The heir who is sued shall have the

option of indemnifying the plaintiff for the loss, or consent-
ing to a new partition.
Indemnity may be made by payment in cash or by the
delivery of a thing of the same kind and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those
who have not been prejudiced nor those who have not re-
ceived more than their just share. (1077a)
Arts. 1102-1104 Jottings and Jurisprudence 617
Obligor’s options.—It is the co-heir who is sued for rescis-

sion who has the option. He has two choices:
1. to have a re-partition, or
2. to indemnify the co-heir the amount of the lesion
suffered.
ARTICLE 1102. An heir who has alienated the whole

or a considerable part of the real property adjudicated to
him cannot maintain an action for rescission on the ground
of lesion, but he shall have a right to be indemnified in
cash. (1078a)
Correlated with the preceding article, this article is unnec-
essary, since anyway it is the party sued who is given the op-
tion.
ARTICLE 1103. The omission of one or more objects
or securities of the inheritance shall not cause the res-
cission of the partition on the ground of lesion, but the par-
tition shall be completed by the distribution of the objects
or securities which have been omitted. (1079a)
Incompleteness of the partition is not a ground for rescis-
sion. The remedy is a supplemental partition.
ARTICLE 1104. A partition made with preterition of
any of the compulsory heirs shall not be rescinded, unless
it be proved that there was bad faith, or fraud on the part of
the other persons interested; but the latter shall be propor-
tionately obliged to pay to the person omitted the share
which belongs to him. (1080)
This is not preterition under Article 854. This is simply an
omission of a compulsory heir in the partition, the assumption
being that something is left for him in the form of an undis-
posed portion of the estate. The omitted heir simply gets his
rightful share (Non v. CA, 325 SCRA 652 [2000]).
compulsory heir is one in the direct line and is to-
from the inheritance. Art. 854 applies. Vide com-
ARTICLE 1105. A partition which includes a person

believed to be an heir, but who is not, shall be void only
with respect to such person. (1081a)
This is the reverse of the preceding article. Here an out-

sider is mistakenly included in the partition. The obvious rem-
edy is to recover the property from him and have it redistrib-
uted among the proper recipients.
—oOo—
JOTTINGS AND JURISPRUDENCE
IN
CIVIL LAW
By
RUBEN F. BALANE
Professor of Law
University of the Philippines
Ateneo de Manila
Former J.B.L. Reyes Professor of Civil Law
University'tfjtjjjjpe Philippines
Holder, d'B.L. Reyes
Professorial Chair in Civil Law
Ateneo de Manila
Recipient, Centenary Book Award

Supreme Court of the Philippines
2010 EDITION
Published by
CENTRAL BOOK SUPPLY, INC.

927 Quezon Avenue, Quezon City
Philippines
Philippine Copyright 2006, 2010
By
RUBEN F. BALANE
ALL RIGHTS RESERVED
Any copy of this book without the corresponding

number and signature of the author on this page
either proceeds from an illegitimate source or is
in possession of one who has no authority to
dispose of the same.
No.
ISBN 978-971-011-140-4
Printed by
CENTRAL BOOK SUPPLY, INC

927 Quezon Avenue, Quezon City
Philippines
FOREWORD
Despite the growing number of legal publications on the

subject of Succession, there is always room for a fresh
approach to the subject as a course in the law school
curriculum, and as resource material for members of the legal
profession both of the bench and of the bar. Since the Civil
Code took effect in 1950, there has been a continuous flow of
judicial decisions embodying new concepts, and pertinent laws
have been enacted expanding the frontiers of the subject of
Succession as a mode of acquiring ownership of property. A
new, up-dated, exhaustive and authoritative work on this
aspect of our Civil Law has thus become a necessity. This
scholarly and comprehensive work answers this need.
In the preparation of this book, and drawing from his long
experience as a full-time and dedicated professor of law at the
University of the Philippines and later at the Ateneo de Manila
University, Professor Balane succeeds in making the rules and
principles governing inheritance and the transmission of rights
occasioned by the death of a person, more easily understood.
The various topics have been methodically and analytically
arranged and, whenever necessary for a clearer understanding
of the principles involved, provisions in other parts of the Civil
Code are cited and correlated with the provisions on Suc-
cession. The pertinent portions of the more significant
decisions of the Supreme Court on the subject are incor-
porated, to more accurately show how the Supreme Court has
applied the legal principles involved. Hypothetical illustrations
are sometimes used towards a better comprehension of the
subject matter. In addition, constructive comments on the
various provisions are made in the interest of completeness and
clarity.
iii
Although this book is primarily intended to serve the
needs of law students as a basic text, it serves as well the
needs of legal practitioners, in lieu of the availability of a law
library. Members of the judiciary who can not avail themselves
or have no access to a modern law library will find it of great
help in making their decisions in cases of testate and intestate
succession. This work is indeed a bright new star in the legal
firmanent.
JOSE C. CAMPOS, JR.

Former Associate Justice
Supreme Court
iv
PREFACE TO THE FOURTH EDITION
Four years have passed since the publication of the third

edition of this work. As with earlier editions, depletion of supply
and recent jurisprudence have made the preparation of a new
edition advisable. It has also become customary to update this
work every four years. The first three editions came out at
quadrennial intervals: in 1998, 2002, and 2006.
The field of Succession does not produce as many new

decisions over a four-year period as does that of Public Law or
even other branches of Civil Law. Certainly there have not been
radical or revolutionary or novel doctrines in this field, but the
new harvest, though spare, has not been insignificant. A
number of new cases have clarified some unsettled areas or
have confirmed codal or jurisprudential statements that might
previously have seemed tentative.
This edition, as the previous ones, is put in the humble

service of the Philippine Bar and its members, both present and
future: judges, teachers, practitioners, students. Mis prosint,
etsi indigna, haec commentaria.
RFB
24 May 2010
v
PREFACE TO THE THIRD EDITION
The passage of four years following the publication of the

second edition justifies this third one. Production of additional
copies of the current (second) edition would have been an
effortless alternative, thanks to the new technology, but a new
revision makes possible inclusion of new jurisprudence. Hence
this revised work.
I am happy and heartened that this little work has

received encouraging support from professional and academic
circles.
RFB
17 May 2006
vi
PREFACE TO THE SECOND EDITION
The first edition of this book came out in 1998. Depletion

of stock and new jurisprudence have made this new edition
necessary.
Recent cases in the field of Succession have not been

numerous, but they have been of sufficient significance to
throw new light upon some aspects of successional law.
I wish to acknowledge the invaluable assistance of Atty.

Ma. Lourdes Salas-Tamase for editing the revised manuscript
and the new cases. I should also like to thank colleagues,
students and friends who have given suggestions, advice and
support.
This year is the centennial of Justice JBL Reyes (bom 19

August 1902), who in many ways was mentor and model. Of
him the poet’s words are truly descriptive: “Integer vitae
scelerisque purus.” This little work is offered as a tribute to his
memory.
RFB
vii
AUTHOR S PREFACE
This book is not a treatise and was not intended to be one.

It is a compilation, put together over a good number of years of
teaching the subject, of my teaching materials and case
assignments in the course entitled Succession or Wills and
Succession in the law school curricula. It is intended to be a
reference or textbook for my students at the University of the
Philippines and the Ateneo de Manila. Perhaps it could also be
of some use to students in other law schools, as well as to
members of the legal profession.
As the title—Jottings and Jurisprudence in Civil Law—
suggests, this is supposed to be part of a larger effort, but the
publisher’s advice and my own inclination made that effort
commence “in medias res” rather than at the beginning of civil
law as traditionally divided. With some luck and persistence,
perhaps the other areas will also be covered in the future.
I wish to honor, through this unworthy work, the memory
of Justice J.B.L. Reyes, who in many respects was mentor and
guide. His courage, rectitude, and wisdom will always be part of
this nation’s treasure. As a humble token of affection, I offer
these pages “como tardia corona de hojas secas.”
I wish to thank Justice Jose C. Campos, Jr. for his kind
foreword, Mr. Jose Maria A. Ochave for editing the cases, and
Messrs. Ochave and Hilarion Luis M. Azura for patiently
shepherding the book through its many stages of preparation.
Finally, I should like to thank the Balane Tamase Alampay
Law Office, of which I am happy to be a part, for its constant
support and for allowing me the time which was rightfully its
own.
RFB
viii
MARIAE IMMACULATAE
SICUT SEMPER
TABLE OF CONTENTS
JOTTINGS AND JURISPRUDENCE IN CIVIL LAW
Chapter 1
GENERAL PROVISIONS Page
Article 774 ............................................................................................. 1

Union Bank vs. Santibanez, 452 SCRA 228 (2005) ............................. 6
Estate of K.H. Hemady vs. Luzon Surety, 100 Phil.
389 (1956)............................................................................ 13
Alvarez vs. Intermediate Appellate Court,
185 SCRA 8 (1990) .................................................................. 18
Article 775 ........................................................................................... 26
Article 776 ........................................................................................... 26
Article 777 ........................................................................................... 26
Uson vs. Del Rosario, 92 Phil. 530 (1953)................................... 27
De Borja vs. Vda. de Boija, 46 SCRA 577(1972) ........................ 29
Bonilla vs. Barcena, 71 SCRA 491 (1976)................................ 32
Article 778 ............................................................................................ 35
Article 779 ............................................................................................ 35
Article 780 ............................................................................................ 35
Article 781 ............................................................................................ 38
Article 782 ............................................................................................ 38
Chapter 2
TESTAMENTARY SUCCESSION
Section 1—Wills
Subsection 1—Wills in General
Article 783 ............................................................................................ 40

Vitug vs. Court of Appeals, 183 SCRA 755 (1990).............................. 41
xi
TABLE OF CONTENTS
Page
Article 784 .......................................................................................... 47

Article 785 .......................................................................................... 47
Article 786 .......................................................................................... 47
Article 787 .......................................................................................... 48
Article 788 .......................................................................................... 49
Article 789 .......................................................................................... 49
Article 790 .......................................................................................... 50
Article 791 .......................................................................................... 50
Article 792 .......................................................................................... 50
Article 793 .......................................................................................... 50
Article 794 .......................................................................................... 50
Article 795 .......................................................................................... 55
Subsection 2—Testamentary Capacity and Intent
Article 796 .......................................................................................... 57

Article 797 .......................................................................................... 57
Article 798 .......................................................................................... 57
Article 799 .......................................................................................... 57
Article 800 .......................................................................................... 57
Article 801 .......................................................................................... 58
Article 802 .......................................................................................... 62
Article 803 .......................................................................................... 62
Subsection 3—Forms of Wills
Article 804 .......................................................................................... 62

Suroza vs. Honrado, 110 SCRA 388 (1981) .................................... 63
Abangan vs. Abangan, 40 Phil. 476 (1919) .................................... 69
Article 805 .......................................................................................... 69
Article 806 .......................................................................................... 70
Payad vs. Tolentino, 62 Phil. 848 (1936) ........................................ 72
Matias vs. Salud, No. L-10751, June 23, 1958 .............................. 73
Garcia vs. Lacuesta, 90 Phil. 489 (1951) ........................................ 78
Barut vs. Cabacungan, 21 Phil. 461 (1912) .................................... 80
Nera vs. Rimando, 18 Phil. 451 (1911) ........................................... 85
Icasiano vs. Icasiano, 11 SCRA 422 (1964) .................................... 89
TABLE OF CONTENTS
Page
Cagro vs. Cagro, 92 Phil. 1032 (1953) .............................................. 95

Javellana vs. Ledesma, 97 Phil. 258 (1955) ...................................... 97
Cruz vs. Villasor, 54 SCRA 31 (1973) ............................................... 99
Article 807 .......................................................................................... 102
Article 808 .......................................................................................... 102
Garcia vs. Vasquez, 32 SCRA 489 (1970) .................................... 103
Alvarado vs. Gaviola, Jr., 226 SCRA 348 (1993) ............................. 109
Article 809 .......................................................................................... 116
Caneda vs. Court of Appeals, 222 SCRA 781 (1993) ....................... 117
Article 810 .......................................................................................... 134
Roxas vs. De Jesus, 134 SCRA 245 (1985) ..................................... 136
Labrador vs. Court of Appeals, 184 SCRA 170 (1990) ..................... 138
Article 811 .......................................................................................... 144
Azaola vs. Singson, 109 Phil. 102 (1960) ........................................ 145
Codoy vs. Calugay, 312 SCRA 333 (1999) ...................................... 149
Gan vs. Yap, 104 Phil. 509 (1958) .................................................. 159
Rodelas vs. Aranza, 119 SCRA 16 (1982) ....................................... 168
Article 812 .......................................................................................... 171
Article 813 .......................................................................................... 171
Article 814 .......................................................................................... 172
Kalaw vs. Relova, 132 SCRA 237 (1984) ........................................ 172
Article 815 .......................................................................................... 175
Article 816 .......................................................................................... 175
Article 817 .......................................................................................... 175
Article 818 .......................................................................................... 176
Article 819 .......................................................................................... 178
Subsection 4—Witnesses to Wills
Article 820 .......................................................................................... 178

Article 821 .......................................................................................... 178
Gonzales vs. Court of Appeals, 90 SCRA 183 (1979) ....................... 179
Article 822 .......................................................................................... 186
Article 823 .......................................................................................... 186
Article 824 .......................................................................................... 187
xiii
TABLE OF CONTENTS
Page
Subsection 5—Codicils and Incorporation by Reference
Article 825 .......................................................................................... 188

Article 826 .......................................................................................... 188
Article 827 .......................................................................................... 188
Subsection 6—Revocation of Wills and Testamentary

Dispositions
Article 828 .......................................................................................... 189

Article 829 .......................................................................................... 189
Article 830 .......................................................................................... 190
Adriana Maloto vs. Court of Appeals, 158 SCRA
451 (1988).............................................................................. 193
Gago vs. Mamuyac, 49Phil. 902 (1927) .......................................... 196
Article 831 .......................................................................................... 199
Article 832 .......................................................................................... 199
Molo vs. Molo, 90 Phil. 37(1951) ............................................... 201
Diaz vs. De Leon, 43 Phil. 413(1922) ....................................... 209
Article 833 .......................................................................................... 210
Article 834 .......................................................................................... 211
Subsection 7—Republication and Revival of Wills
Article 835 .......................................................................................... 212

Article 836 .......................................................................................... 212
Article 837 .......................................................................................... 213
Subsection 8—Allowance and Disallowance of Wills
Article 838 .......................................................................................... 214

Guevara vs. Guevara, 74 Phil. 479 (1943)...................................... 214
De la Cema vs. Potot, 12 SCRA 576 (1964) ..................................... 225
Gallanosa vs. Arcangel, 83 SCRA 676 (1978) ................................. 228
Nepomuceno vs. Court of Appeals, 139 SCRA
206 (1985).............................................................................. 237
xiv
TABLE OF CONTENTS
Page
Article 839 .......................................................................................... 243
Section 2—Institution of Heir
Article 840 .......................................................................................... 246

Article 841 .......................................................................................... 246
Article 842 .......................................................................................... 246
Article 843 .......................................................................................... 247
Article 844 .......................................................................................... 247
Article 845 .......................................................................................... 248
Article 846 .......................................................................................... 248
Article 847 .......................................................................................... 249
Article 848 .......................................................................................... 250
Article 849 .......................................................................................... 250
Article 850 .......................................................................................... 251
Austria vs. Reyes, 31 SCRA 754 (1970) .......................................... 251
Article 851 .......................................................................................... 258
Article 852 .......................................................................................... 258
Article 853 .......................................................................................... 259
Article 854 .......................................................................................... 264
Reyes vs. Barretto-Datu, 19 SCRA 85 (1967) ................................... 265
Aznarvs. Duncan, 17 SCRA 590 (1966) ........................................... 269
Acain vs. IAC, 155 SCRA 100 (1987) ............................................... 276
Nuguid vs. Nuguid, 17 SCRA 449 (1966) ......................................... 280
Article 855 .......................................................................................... 288
Article 856 .......................................................................................... 289
Section 3—Substitution of Heirs
Article 857 .......................................................................................... 291

Article 858 .......................................................................................... 292
Article 859 .......................................................................................... 293
Article 860 .......................................................................................... 295
Article 861 .......................................................................................... 296
Article 862 .......................................................................................... 296
Article 863 .......................................................................................... 296
Palacios vs. Ramirez, 111 SCRA 704 (1982) .................................... 298
xv
TABLE OF CONTENTS
Page
Phil. Commercial & Industrial Bank vs. Escolin,

56 SCRA 266 (1974)................................................................ 304
Article 864 ......................................................................................... 311
Article 865 ......................................................................................... 311
Article 866 ......................................................................................... 312
Article 867 ......................................................................................... 312
Article 868 ......................................................................................... 314
Article 869 ......................................................................................... 314
Article 870 ......................................................................................... 315
Section 4—Conditional Testamentary Dispositions and

Testamentary Dispositions with a Term
Article 871 ......................................................................................... 315

Article 872 ......................................................................................... 316
Article 873 ......................................................................................... 317
Article 874 ......................................................................................... 317
Article 875 ......................................................................................... 318
Article 876 ......................................................................................... 319
Article 877 ......................................................................................... 319
Article 883, par. 2 .............................................................................. 319
Article 879 ......................................................................................... 320
Article 880 ......................................................................................... 321
Article 881 ......................................................................................... 322
Article 884 ......................................................................................... 323
Article 878 ......................................................................................... 323
Article 885 ......................................................................................... 324
Article 882 ......................................................................................... 324
Rabadilla vs. Court of Appeals, 334 SCRA 522 (2000) ................... 325
Article 883, par. 1 .............................................................................. 331
Section 5—Legitime
Article 886 ......................................................................................... 333

Article 887 ......................................................................................... 333
Rosales vs. Rosales, 148 SCRA 69 (1987) ..................................... 335
Lapuz vs. Eufemio, 43 SCRA 177 (1972) ....................................... 339
xvi
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Page
Baritua us. Court of Appeals, 183 SCRA 565 (1990) ........................ 348
Article 888 .......................................................................................... 352
Article 889 .......................................................................................... 352
Article 890 .......................................................................................... 353
Article 892 .......................................................................................... 354
Article 893 .......................................................................................... 357
Article 894 .......................................................................................... 357
Article 895 .......................................................................................... 358
Article 896 .......................................................................................... 359
Article 897 .......................................................................................... 360
Article 898 .......................................................................................... 360
Article 899 .......................................................................................... 360
Article 900 .......................................................................................... 361
Article 901 .......................................................................................... 362
Article 902 .......................................................................................... 362
Article 903 .......................................................................................... 362
Article 891 .......................................................................................... 363
Solivio vs. Court of Appeals, 182 SCRA 119 (1990).......................... 367
Padura vs. Baldovino, G.R. No. 11960, December
27, 1958 ................................................................................ 375
Florentino vs. Florentino, 40 Phil. 480 (1919) .................................. 383
Edroso vs. Sablan, 25 Phil. 295 (1913) ........................................... 392
Sienes vs. Esparcia, 1 SCRA 750 (1961) ......................................... 403
Gonzales vs. CFI, 104 SCRA 479 (1981) ......................................... 407
Cano vs. Director, 105 Phil. 1 (1959) ............................................... 416
Article 904 .......................................................................................... 422
Article 905 .......................................................................................... 423
Article 906 .......................................................................................... 424
Article 907 .......................................................................................... 425
Article 908 .......................................................................................... 425
Vizconde vs. Court of Appeals, 286 SCRA 217 (1998) ...................... 427
Article 909 .......................................................................................... 431
Article 910 .......................................................................................... 431
Article 911 .......................................................................................... 432
Article 912 .......................................................................................... 434
Article 913 .......................................................................................... 435
xvii
TABLE OF CONTENTS
Page
Article 914 .......................................................................................... 435
Section 6—Disinheritance
Article 915........................................................................................... 435

Article 916........................................................................................... 436
Article 917........................................................................................... 437
Article 918........................................................................................... 437
Article 919........................................................................................... 438
Article 920........................................................................................... 441
Article 921........................................................................................... 444
Article 922........................................................................................... 446
Article 923........................................................................................... 447
Section 7—Legacies and Devises
Article 924........................................................................................... 449

Article 925........................................................................................... 450
Article 926........................................................................................... 450
Article 927........................................................................................... 451
Article 928........................................................................................... 451
Article 929........................................................................................... 451
Article 930........................................................................................... 451
Article 931........................................................................................... 452
Article 932........................................................................................... 452
Article 933........................................................................................... 452
Article 934........................................................................................... 452
Article 935........................................................................................... 452
Article 936........................................................................................... 453
Article 937........................................................................................... 453
Article 938........................................................................................... 456
Article 939........................................................................................... 456
Article 940........................................................................................... 457
Article 941........................................................................................... 458
Article 942........................................................................................... 458
Article 943........................................................................................... 458
Article 944........................................................................................... 459
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Page
Article 945 .......................................................................................... 460

Article 946 .......................................................................................... 461
Article 947 .......................................................................................... 461
Article 948 .......................................................................................... 461
Article 949 .......................................................................................... 462
Article 950 .......................................................................................... 463
Article 951 .......................................................................................... 464
Article 952 .......................................................................................... 465
Article 953 .......................................................................................... 465
Article 954 .......................................................................................... 465
Article 955 .......................................................................................... 466
Article 956 .......................................................................................... 467
Article 957 .......................................................................................... 467
Article 958 .......................................................................................... 469
Article 959 .......................................................................................... 469
Chapter 3
LEGAL OR INTESTATE SUCCESSION
Section 1—General Provisions
Article 960 .......................................................................................... 471

Article 961 .......................................................................................... 473
Article 962 .......................................................................................... 473
Subsection 1—Relationship
Article 963 .......................................................................................... 475

Article 964 .......................................................................................... 475
Article 965 .......................................................................................... 475
Article 966 .......................................................................................... 475
Article 967 .......................................................................................... 477
Article 968 .......................................................................................... 478
Article 969 .......................................................................................... 478
xix
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Page
Subsection 2—Right of Representation
Article 970.......................................................................................... 479

Article 971.......................................................................................... 480
Article 972.......................................................................................... 480
Article 973.......................................................................................... 480
Article 974.......................................................................................... 480
Article 975.......................................................................................... 480
Article 976.......................................................................................... 480
Article 977.......................................................................................... 480
Teotico vs. Del Val, 13 SCRA 406 (1965) ....................................... 483
Section 2—Order of Intestate Succession
Subsection 1—Descending Direct Line
Article 978.......................................................................................... 495

Article 979.......................................................................................... 495
Sayson vs. Court of Appeals, 205 SCRA 324 (1992) ...................... 495
Article 980.......................................................................................... 503
Article 981.......................................................................................... 503
Article 982.......................................................................................... 503
Article 983.......................................................................................... 503
Article 984.......................................................................................... 504
Subsection 2—Ascending Direct Line
Article 985.......................................................................................... 504

Article 986.......................................................................................... 504
Article 987.......................................................................................... 504
Subsection 3—Illegitimate Children
Article 988.......................................................................................... 505

Article 989.......................................................................................... 505
Article 990.......................................................................................... 505
Article 991.......................................................................................... 505
xx
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Page
Article 992 .......................................................................................... 505

Corpus vs. Administrator, 85 SCRA 567 (1978) ............................... 506
Leonardo vs. Court of Appeals, 120 SCRA 890 (1983) ..................... 510
Diaz vs. IAC, 150 SCRA 645 (1987) ................................................ 511
Diaz vs. IAC, 182 SCRA 427 (1990) ................................................ 515
Article 993 .......................................................................................... 522
Article 994 .......................................................................................... 522
Subsection 4—Surviving Spouse
Article 995 .......................................................................................... 523

Article 996 .......................................................................................... 523
Santillon vs. Miranda, 14 SCRA 563 (1965) .................................... 524
Article 997 .......................................................................................... 528
Article 998 .......................................................................................... 528
Article 999 .......................................................................................... 528
Article 1000 ........................................................................................ 529
Article 1001 ........................................................................................ 529
Article 1002 ........................................................................................ 529
Subsection 5—Collateral Relatives
Article 1003 ........................................................................................ 530

Article 1004 ........................................................................................ 530
Article 1005 ........................................................................................ 530
Article 1006 ........................................................................................ 530
Article 1007 ........................................................................................ 530
Article 1008 ........................................................................................ 531
Article 1009 ........................................................................................ 531
Article 1010 ........................................................................................ 531
Subsection 6—The State
Article 1011 ........................................................................................ 531

Article 1012 ........................................................................................ 532
Article 1013 ........................................................................................ 532
Article 1014 ........................................................................................ 532
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Chapter 4
PROVISIONS COMMON TO TESTATE
AND INTESTATE SUCCESSION
Section 1—Right of Accretion
Article 1015 ........................................................................................535

Article 1016 ........................................................................................535
Article 1017 ........................................................................................537
Article 1018 ........................................................................................537
Article 1019 ........................................................................................538
Article 1020 ........................................................................................538
Article 1021 ........................................................................................538
Article 1022 ........................................................................................539
Article 1023 ........................................................................................539
Section 2—Capacity to Succeed by Will or Intestacy
Article 1024 ........................................................................................539

Article 1025 ........................................................................................540
Parish Priest of Roman Catholic Church of Victoria,
Tarlac vs. Rigor, 89 SCRA 493 (1979) ................................... 541
Article 1026 ........................................................................................549
Article 1027 ........................................................................................550
Article 1028 ........................................................................................554
Article 1029 ........................................................................................554
Article 1030 ........................................................................................555
Article 1031 ........................................................................................556
Article 1032 ........................................................................................556
Article 1033 ..................................................................................... 558
Article 1034 ........................................................................................560
Article 1035 ........................................................................................561
Article 1036 ........................................................................................562
Article 1037 ........................................................................................562
Article 1038 ........................................................................................562
Article 1039 ........................................................................................563
Article 1040 ........................................................................................563
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Page
Section 3—Acceptance and Repudiation of the Inheritance
Article 1041 ........................................................................................ 564

Article 1042 ........................................................................................ 564
Article 1043 ........................................................................................ 565
Article 1044 ........................................................................................ 565
Article 1045 ........................................................................................ 566
Article 1046 ........................................................................................ 566
Article 1047 ........................................................................................ 567
Article 1048 ........................................................................................ 567
Article 1049 ........................................................................................ 568
Article 1050 ........................................................................................ 568
Article 1051 ........................................................................................ 569
Article 1052 ........................................................................................ 570
Article 1053 ........................................................................................ 571
Article 1054 ........................................................................................ 571
Article 1055 ........................................................................................ 571
Article 1056 ........................................................................................ 573
Article 1057 ........................................................................................ 573
Section 4—Executors and Administrators
Article 1058 ........................................................................................ 573

Article 1059 ........................................................................................ 574
Article 1060 ........................................................................................ 574
Section 5—Collation
Article 1061 ........................................................................................ 575

Article 1062 ........................................................................................ 576
Article 1063 ........................................................................................ 577
Article 1064 ........................................................................................ 577
Article 1065 ........................................................................................ 578
Article 1066 ........................................................................................ 579
Article 1067 ........................................................................................ 580
Article 1068 ........................................................................................ 580
Article 1069 ........................................................................................ 581
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Page
Article 1070 ........................................................................................581

Article 1071 ........................................................................................582
Article 1072 ........................................................................................583
Article 1073 ........................................................................................584
Article 1074 ........................................................................................584
Article 1075 ........................................................................................584
Article 1076 ........................................................................................585
Article 1077 ........................................................................................587
Section 6—PARTITION AND DISTRIBUTION OF ESTATE
Subsection 1—Partition
Article 1078 ........................................................................................588

Article 1079 ........................................................................................589
Article 1080 ........................................................................................589
Legasto vs. Verzosa, 54 Phil. 766 (1930) .......................................591
Article 1081 ........................................................................................597
Article 1082 ........................................................................................597
Tuason vs. Tuason, Jr. & Gregorio Araneta, Inc.,
88 Phil. 428 (1951) ...............................................................597
Article 1083 ........................................................................................600
Article 1084 ........................................................................................602
Article 1085 ........................................................................................603
Article 1086 ........................................................................................603
Article 1087 ........................................................................................604
Article 1088 ........................................................................................604
Garcia vs. Calaliman, 172 SCRA 201 (1989) ..................................605
Article 1089 ........................................................................................611
Article 1090 ........................................................................................611
Subsection 2—Effects of Partition
Article 1091 ........................................................................................611

Article 1092 ........................................................................................611
Article 1093 ........................................................................................611
Article 1094 ........................................................................................613
Article 1095 ........................................................................................613
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Article 1096....................................................................................... 614
Subsection 3—Rescission and Nullity of Partition
Article 1097 ....................................................................................... 614

Article 1098 ....................................................................................... 615
Article 1099 ....................................................................................... 616
Article 1100 ....................................................................................... 616
Article 1101 ....................................................................................... 616
Article 1102 ....................................................................................... 617
Article 1103 ....................................................................................... 617
Article 1104 ....................................................................................... 617
Article 1105 ....................................................................................... 618
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Chapter 1

I. A new provision, from Scaevola.

1 Art. 712. Ownership is acquired by occupation and by intellectual

heritance” as including “all the property, rights and obligations

And the inheritance which is transmitted through a per-

V. Rule regarding pecuniary obligations:

been paid, the court, on the application of the execu-

In our system, therefore, money debts are, properly speak-

“It is generally adverted that our rules of succes-

ceptance by the heir, who may do so when he

2 "SEC. 3. Heir may not sue until share assigned.—When an executor or

debts, funeral charges, and expenses of administration, the allowance to the

when the debts and expenses of administration and

jurisdiction whether they accept or repudiate the in-

A consequence of these divergent rules (as JBL puts it) is

Union Bank vs. SantibaAez

452 SCRA 228 [2005]

XXX XXX XXX

On December 13, 1980, the FCCC and Efraim entered into

chase price of another unit of Ford 6600 Agricultural All-

xxx xxx xxx

The petitioner asserted before the CA that the

from asserting any position contrary thereto. The peti-

for funeral expenses for the last sickness of the

The documentary evidence presented, particularly the

In a sense,it can be said that even money debts are

“The binding effect of contracts upon the heirs of

Only the payment of money debts has been affected by the

Estate of K.H. Hemady vs. Luzon Surety

REYES, J.B.L., J.:

The Luzon Surety Co. had filed a claim against

that a new requirement has been added for a

“The principle on which these rest Is not

ual qualities are contemplated as a principal induce-

nos (sic) claramente se deduzca la concresion del

The contracts of suretyship entered into by K.H.

The rationale of Hemady is reiterated in Santos v. Lumbao,

Alvarez vs. Intermediate Appellate Court

This is a petition for review on certiorari seeking

tober 9, 1917 by the Register of Deeds of Occidental

of the sum of P7.000.00. Consequently, on February

vey to the plaintiffs lots Nos. 773 and 823 of the

In 1968, the Yaneses filed an ex-parte motion for

the Yaneses were negligent in their failure to place a

The Alvarezes appealed to the then Intermediate

representing the actual value of Lots Nos. 773-A and

of a deceased must be liquidated and paid from

WHEREFORE, subject to the clarification herein

ARTICLE 775. In this Title, “decedent” is the general

ARTICLE 776. The inheritance includes all the prop-

Vide comments under Article 774.

I. This is practically a literal translation of Article 657 of

“Art. 657. Los derechos a la sucesion de una

II. The terminology is infelicitous because the right to the

III. This article merely specifies the time of vesting of the

92 Phil. 530 (1953)

BAUTISTA ANGELO, J.:

xxx xxx xxx

her now co-defendants. It likewise appears that Faus-

right, of the same origin.’' As already stated in the

As pointed out in Montilla vs. Montilla (2 SCRA 695

REYES, J.B.L., J.:

xxx Francisco de Boija, upon the death of his

Tasiana Ongsingco. Upon Francisco’s death, Tasiana