WILLS & SUCCESSION

Professor: Justice Hofileña 3 Philosophies of Law which Affect Our Law on Succession
Book: Ruben Balane (JBL Reyes)
1. Germanic law – the universal heir; the heir will
TITLE IV automatically succeed, stepping into the shoes of the
SUCCESSION decedent whether he wants to or not, acquiring all
rights and obligations of the decedent
CHAPTER 1. General Provisions 2. Spanish law – the universal heir as well; however,
the heir must accept (followed by Civil Code)
*Article 774. What is Succession? 3. Anglo-American law – the heir receives the estate
Succession is a mode of acquisition by virtue of which the post-debt; there is first an administrator, whose
property, rights and obligations to the extent of the value of purpose is to settle the estate by settling all debts.
the inheritance, of a person are transmitted through his The residue goes to the heir (followed by Rules of
death to another or others either by his will or by operation Court).
of law. (n)
Creditors Can Only Pursue Against Estate
Succession as Mode As a consequence of the above divergent rules, creditors can
 Succession is a mode of acquiring ownership1 only pursue their claims in the settlement proceedings & not
 Ownership (when via succession) is acquired upon against the heirs directly.
the death of the decedent
CASE: UNION BANK V. SANTIBAÑEZ
What Is Transferred in Succession Facts: FCCC & Efraim entered into loan agreements wherein
The transfer in succession includes all of the transmissible Efraim loaned money from FCCC to purchase tractors,
property, rights, & obligations of a person not extinguished executing promissory notes issued by himself & his son,
by death. Edward, to evidence the loan. Efraim died before the debt to
 If the right is strictly personal (intuitu personae), it is FCCC was fully paid. During the testate proceedings that
intransmissible; followed after, his two kids, Edward & his daughter,
 Otherwise, it is transmissible. Florence, executed a Joint Agreement & divided the tractors
between themselves. Meanwhile, Union Bank, assignee of
Better Version of Art. 774 Efraim’s debt to FCCC, filed a complaint for sum of money
Succession is a mode of acquisition by virtue of which – against Efraim’s ancestors, but was only able to implead
 The inheritance of a person is transmitted Florence. The lower courts, however, denied the complaint,
& held that Union Bank should have filed its claim in the
 Through his death
probate proceedings for the settlement of Efraim’s estate,
 To another or others given that Union Bank was aware of the proceedings. Is this
 Either by his will or by operation of law. contention valid?
Held: YES. The loan was contracted by the decedent. Union
Rules Regarding Pecuniary Obligations Bank, purportedly a creditor of the late Efraim, should have
Under the Rules of Court, it is only after the debts are paid thus filed its money claim with the probate court in
that the residue of the estate is distributed among the accordance with Sec. 5, Rule 86 of the Revised Rules of
successors.2 Court.3 The filing of money claims against the decedent’s
 In the Philippines, money debts are not transmitted to estate in the probate court is mandatory, & is meant to
the heirs nor paid by them. The estate pays them protect the estate of the deceased, allowing the executor or
 It is only what is left after the debts are paid that are administrator to examine the validity of all claims.
transmitted to the heirs. Otherwise, the claims “are barred forever, except that they
may be set forth as counterclaims in any action that the
1 executor or administrator may bring against the claimants.”
7 Modes of Acquiring Ownership (Art. 712)
Since Union Bank never filed a claim in the probate court, it
1. Occupation
2. Intellectual creation can now only go after Efraim’s son, Edward, co-maker of
3. Law the note; this is the bank’s only remaining remedy. It cannot
4. Donation
5. Succession (Intestate and Testate)
6. Tradition
7. Prescription 3
2 Section 5. Claims which must be filed un- der the notice. If not filed barred;
Rule 90, Sec. 1. When the order for the distribution of residue is made.— exceptions.—All claims for money against the decedent, arising from contract,
When the debts, funeral charges, & expenses of administration, the allowance express or implied, whether the same be due, not due, or contingent, all claims
to the widow, & inheritance tax, if any, chargeable to the estate in accordance for funeral expenses for the last sickness of the decedent, and judgment for
with law, have been paid, the court, on the application of the executor or money against the decedent, must be filed within the time limited in the
administrator, or of a person interested in the estate, & after hearing upon notice; otherwise they are barred forever, except that they may be set forth as
notice, shall assign the residue of the estate to the persons entitled to the same, counterclaims in any action that the executor or administrator may bring
naming them & the proportions, or parts, to which each is entitled, & such against the claimants. Where an executor or administrator commences an
persons may demand & recover their respective shares from the executor or action, or prosecutes an action already commenced by the deceased in his
administrator, or any other person having the same in his possession. If there lifetime, the debtor may set forth by answer the claims he has against the
is a controversy before the court as to who are the lawful heirs of the deceased decedent, instead of presenting them independently to the court as herein
person or as to the distributive shares to which each person is entitled under provided, & mutual claims may be set off against each other in such action; &
the law, the controversy shall be heard & decided as in ordinary cases. if final judgment is rendered in favor of the defendant, the amount so
No distribution shall be allowed until the payment of the obligations above determined shall be considered the true balance against the estate, as though
mentioned has been made or provided for, unless the distributees, or any of the claim had been presented directly before the court in the administration
them, give a bond, in a sum to be fixed by the court, conditioned for the proceedings. Claims not yet due, or contingent, may be approved at their
payment of said obligations within such time as the court directs. present value.
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go after Florence, who is just an heir & has nothing to do
with the debt.
Class Discussion
Q: Can heirs agree to divide specific property among
themselves, agreeing to pay the debt for the attached loan?
A: No; if there is a money debt, there cannot be just an
extrajudicial partition. The matter must be settled by a
probate court. (Union Bank v. Santibañez)
Only Payment of Money Debts Affected
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 in Art.774.
CASE: ESTATE OF HEMADY V. LUZON SURETY
Facts: Luzon Surety Co. filed a claim against Hemady’s
estate based on 20 different indemnity agreements, or
counter bonds, each subscribed by a distinct principal & also
by the deceased Hemady, a surety solidary guarantor in all
of them, in consideration of the Luzon Surety Co.
guaranteeing the various principals in favor of different
creditors. The lower court held that Luzon Surety could not
file such a claim, because a guarantor’s obligation is
“personal,” one of the requisites to be made a guarantor
being “integrity,” something purely personal & non-
transmissible. Were the lower courts correct?
Held: NO. Under the Civil Code the heirs, by virtue of the
rights of succession, are subrogated to all the rights &
obligations of the deceased (Art. 661) & cannot be regarded
as third parties with respect to a contract to which the
deceased was a party, touching the estate of the deceased.
Art. 1311 may state exceptions to this rule (i.e., the nature of
the obligation, stipulation, or the law), 4 but none of them
apply here. The nature of the obligation of a guarantor does
not warrant the conclusion that his peculiar individual
qualities are contemplated as a principal inducement for the
contract. Going through the exceptions to the general rule on
relativity & naming why they are not applicable in this case,
the ff. are the reasons why Hemady’s being a guarantor is
not an exception to the general rule –
 As to the nature - Luzon Surety’s principal demand is
nothing more than the reimbursement of money, & a
payment of a sum of money, being an obligation to
give, is not purely personal. The contract between the
parties, on the other hand, makes no express
statement on the non-transmissiblity either.
 As to stipulation – There is no express stipulation to
this effect, so this cannot be claimed as exception.
 As to law – The law requires integrity to be present
only at the time of the perfection of the contract, not
thereafter.
CASE: ALVAREZ V. IAC
Facts: The Yanes siblings inherited Lot 773 from their
father. They left the area due to WW2, but when they
returned, Alvarez was occupying a portion of their lot. They
thus filed a complaint for recovery of the property against
Alvarez. Meanwhile, the latter & his co-possessors, Santiago
et al., were able to get a TCT issued in their favor, & had
4 The Rules provide that after the death of the decedent, an
Art. 1311. Contracts take effect only between the parties, their assigns &
heirs, except in case where the rights & 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 he received from the
decedent.
xxx
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sold the lot to Siason. Eventually, the courts ruled for Siason
in terms of ownership, but obligated the heirs of the original
Alvarez (who had since died) to reimburse the Yaneses.
Alvarez’ heirs were thus asked to pay the costs of the suit to
the Yaneses. They protested, claiming they should not be
made to pay for their ancestor’s debt. They contend that the
liability arising from the sale of the lots to Siason should be
the sole liability of the late Alvarez or of his estate, after his
death. Is this correct?
Held: NO. 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 & heirs. Petitioners being the heirs
of the late Alvarez, they cannot escape the legal
consequences of their father’s transaction, which gave rise to
the present claim for damages. That petitioners did not
inherit the property involved herein is of no moment because
by legal fiction, the monetary equivalent thereof devolved
into the mass of their father’s hereditary estate, 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 inheritance.
Class Discussion
Q: Supposing a painter has a contract with his client where
he will draw the portrait of his client; then, he dies. Will the
heir be obliged to make the painting?
A: NO, the nature of the obligation is personal.
Q: Would it be correct to say that obligations concerning
property are transmissible?
A: Yes, as a general rule, obligations concerning property
are executed via contracts & bind parties, given the relativity
of contracts.
Q: Is it possible to enumerate all personal rights?
A: NO. That is why the provisions on succession are broad
enough.
Q: A candidate in Ms. Philippines dies before the contest.
May her heir claim the right to represent her?
A: NO. That is personal.
Q: There is an interesting phrase in Art. 774 – “value to the
extent of his inheritance.” What is the reason for this phrase?
A: It means that heirs will only pay to the extent of the value
of his inheritance of the debts of the decedent, and nothing
more than that.
Q: If a person dies leaving properties worth P100,000, and
debts worth P200,000, will the heir be obliged to pay to the
debts?
A: NO. He will only pay to the extent he was bound to
inherit.
Q: If I am a creditor of the person who died, after his death,
can I sue the heirs for payment?
A: According to the Rules, the creditors have to sue in the
probate court during the probate proceedings to claim from
the estate of the decedent.
administrator can be appointed over his estate, who will take
charge of paying his debts. All creditors will have to file
claims in those proceedings. Those who fail to claim within
2 years are banned from claiming.

Q: If a creditor fails to file in the proceedings, may he sue
the heirs?
A: No.
Q: What if none of the heirs open a probate proceeding?
What if the heirs don’t care about their inheritance? Can
creditors sue them directly?
A: Yes. He may appoint himself as an administrator.
Q: If a person is married and he dies, will his son acquire
ownership of all his properties after his death?
A: No. Since the father is married, not all of the properties
are considered his; only half are considered his as the rest
pertains to his wife.
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)
Article 776. The inheritance includes all the property,
rights & obligations of a person which are not extinguished
by his death. (659)
Class Discussion
Q: What rights are acquired by a person who succeeds?
A: Only rights which are transmissible.
Q: What are examples of transmissible rights?
A: Right to lease a piece of land.
Q: What are intransmissible rights?
A: The right to vote is intransmissible, or the right to run for
office.
CASE: HU NIU V. COLLECTOR OF CUSTOMS
Facts: A Chinese widow hopes to enter the Philippines with
her minor children following the death of her husband in the
country. Her husband had left properties in the Philippines,
& by virtue of this, the widow attempted to argue that she &
her kids had the right to enter the country. Can the wife of
the Chinese merchant & her kids enter the country because
she is the widow of the Chinese merchant, or alternatively,
because she thereby becomes the “merchant” following her
husband’s death?
Held: NO. The widow and minor children of a deceased
resident Chinese merchant are not entitled to enter the
Philippine Islands by virtue of the privileges which such
merchant enjoyed during his lifetime. Also, the death of a
resident Chinese merchant does not confer upon his widow
and heirs the status of a merchant and they are not entitled to
enter the Philippine Islands from China by reason of such
fact alone.
The assumption of the appellant is that the mere act of the
death of a merchant makes his wife and children also
merchants, as it leaves to them as heirs and next of kin a
mercantile business as a part of their inheritance. This does
not necessarily follow.
Q: A, a barangay chairman, died of a heart attack. His son B
claims his office as part of his inheritance. Is B correct or
not? Explain.
A: B is not correct. The public office of A as Barangay
Chairman is purely personal to him. Being purely personal,
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this public office is intransmissible and therefore cannot be
transferred by succession. Only transmissible rights and
obligations are transferred by succession. For the foregoing
reasons, B is not correct.
Rule 73, Section 1. Where estate of deceased persons
settled. —
 If the decedents is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien,
his will shall be proved, or letters of administration
granted, and his estate settled, in the RTC in the
province in which he resides at the time of his death,
and
 If he is an inhabitant of a foreign country, the RTC of
any province in which he had estate.
The court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a
court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from
that court, in the original case, or when the want of
jurisdiction appears on the record.
Rule 75, Section 1. Allowance necessary. Conclusive as to
execution. — No will shall pass either real or personal
estate unless it is proved and allowed in the proper court.
Subject to the right of appeal, such allowance of the will
shall be conclusive as to its due execution.
CASE: FULE V. FULE (1924)
Facts: Saturnino Fule died. Ciriaco Fule, one of the heirs,
presented a petition in CFI of the Province of Laguna for the
appointment of an administrator of the estate of Saturnino,
and prayed specially for 'the appointment of Cornelio
Alcantara as such administrator.
The oppositors, however, appeared and presented a motion
alleging that they were children of Saturnino & that they
were all of age; that they opposed the appointment of an
administrator upon the ground that the deceased had left no
debts and that his property had already been partitioned
among his children during his lifetime in conformity with
Art. 1056 of the Civil Code; that the special administrator
had taken possession of property of large value belonging to
them, and had thereby deprived them of their means of
livelihood, and prayed that the order appointing a special
administrator be denied. The lower courts ruled in favor of
the heirs and against the appointment of an administrator.
Was this correct?
Held: YES. Under the provisions of the Civil Code (Arts.
657 to 661), the rights to the succession of a person are
transmitted from the moment of his death; in other words,
the heirs succeed immediately to all of the property of the
deceased ancestor. The property belongs to the heirs at the
moment of the death of the ancestor as completely as if the
ancestor had executed and delivered to them a deed for the
same before his death. In the absence of debts existing
against the estate, the heirs may enter upon the
administration of the said property immediately. If they
desire to administer it jointly, they may do so. If they desire
to partition it among themselves and can do this by mutual
agreement, they also have that privilege.
When the heirs are all of lawful age and there are no debts
there is no reason why the estate should be burdened with
the cost and expenses of an administrator. The administrator
has no right to intervene in any way whatsoever in the
division of the estate among the heirs when they are adults
and when there are no debts against the estate.
*Note: This is allowed until now, so long as there is no
creditor.
CASE: DKC HOLDINGS CO. V. CA
Facts: DKC Holdings entered into a Contract of Lease with
Option to Buy with Encarnacion, whereby DKC was given
the option to lease or lease with purchase the subject land,
which option must be exercised within 2 years counted from
the signing of the Contract. In turn, DKC undertook to pay
P3,000 a month as consideration for the reservation of its
option. Encarnacio died & now DKC wants to enforce the
Contract of Lease against Victor, Encarnacion’s son & heir.
Victor refused. Can Victor be compelled to enter into the
contract?
Held: YES. A contract of lease with option to buy is a
transmissible contract which an heir must honor. Among
contracts which are intransmissible are those which are
purely personal, either by provision of law, such as in cases
of partnerships and agency, or by the very nature of the
obligations arising therefrom, such as those requiring special
personal qualifications of the obligor. It may also be stated
that contracts for the payment of money debts are not
transmitted to the heirs of a party, but constitute a charge
against his estate. Thus, where the client in a contract for
professional services of a lawyer died, leaving minor heirs,
& the lawyer, instead of presenting his claim, for
professional services under the contract to the probate court,
substituted the minors as parties for his client, it was held
that the contract could not be enforced against the minors;
the lawyer was limited to a recovery on the basis of quantum
meruit.
In the case at bar, there is no personal act required from the
late Encarnacion. Rather, the obligation of Encarnacion to
deliver possession of the subject property to petitioner upon
the exercise by the latter of its option to lease the same may
be performed by her heir, Victor.
It is futile for Victor to insist that he is not a party to the
contract because of the clear provision of Art. 1311 of the
Civil Code. Being an heir of Encarnacion, there is privity of
interest between him and his deceased mother. He only
succeeds to what rights his mother had and what is valid and
binding against her is also valid & binding as against him.
CASE: HEIRS OF YPON V. GAUDIOSO PONTERAS
Facts: This was complaint for Cancellation of Title and
Reconveyance with Damages, where the Heirs of Ypon
brought suit against Gaudioso, claiming the latter was not, in
fact, the only heir to the properties of deceased Magdaleno
(who, according to the plaintiffs, died childless). The trial
court dismissed the case for failure to state a cause of action
against Gaudioso. It stated that the latter was able to
establish that he was the son of Magdaleno, & that
consequently, he was entitled to the disputed properties. Was
the trial court correct to dismiss the case on that ground?
Held: YES. Jurisprudence dictates that the determination of
who are the legal heirs of the deceased must be made in the
proper special proceedings in court, and not in an ordinary
suit for recovery of ownership and possession of property.
Matters relating to the rights of filiation and heirship must be
ventilated in the proper probate court in a special proceeding
instituted precisely for the purpose of determining such
rights.
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*Note: The above is the general rule and the case already
provided the exception – By way of exception, the need to
institute a separate special proceeding for the determination
of heirship may be dispensed with –
1. For the sake of practicality, as when the parties in the
civil case had voluntarily submitted the issue to the
trial court and already presented their evidence
regarding the issue of heirship, and the RTC had
consequently rendered judgment thereon, or
2. When a special proceeding had been instituted but
had been finally closed and terminated, and hence,
cannot be reopened.
Article 777. The rights to the succession are transmitted
from the moment of the death of the decedent. (657a)
Preference for the Word “Vested”
The right to succession “vests” upon death implies that
before the decedent’s death the right is merely inchoate.
 The vesting of the right occurs immediately upon the
decedent’s death; i.e., without a moment’s
interruption.
o Art. 553. The possession of hereditary
property is deemed transmitted to the heir
without interruption & from the moment of
the death of the decedent, in case the
inheritance is accepted.
One who validly renounces an inheritance is
deemed never to have possessed the same.
Class Discussion
Q: The word “vested” is preferred by Balane. Why?
A: Because the moment of death is the determining point
and prior to that time, no right is vested.
Presumptions
Art. 777 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; &
3) Accepts the successional portion.
Governing Principles
1) The law in force at the time of the decedent’s death will
determine who the heirs should be.
 CASE: USON V. DEL ROSARIO
o Facts: Maria is the lawful wife of Faustino.
Faustino died in 1945, & following this, Mary
got all his properties, to the exclusion of his 4
illegitimate children. Defendants, representing
the kids, contend that, while they are the
illegitimate children of the late Faustino &
they would not be entitled to any successional
rights under the old Civil Code, under the new
Civil Code which became effective on June,
1950, illegitimate children have been given the
status & rights of natural children and are
entitled to the successional rights which the
law accords to the latter (Art. 2264 and Art.
287, NCC). Defendants contended that,
because these successional rights were
declared for the first time in the new code, they
should be given retroactive effect, even though
 the event which gave rise to them (i.e.,
Faustino’s death in 1945) may have occurred
under the old Civil Code (Art. 2253, NCC). Is
this correct?
o Held: NO. Art. 2253 may provide that rights
which are declared for the first time shall have
retroactive effect 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. As such, the
right of ownership of Maria over the lands in
question became vestedin 1945, & the rights to
succession are transmitted from the moment of
death (Art. 657, old Civil Code). The new right
recognized by the newCivil Code in favor of
the illegitimate children of the deceased
cannot, therefore, be asserted to the
impairment of the vested right of Maria over
the lands in dispute.
2) Ownership passes to the heir at the very moment of death,
who therefore, from that moment acquires the right to
dispose of his share.
 CASE: DE BOIJA V. VDA. DE BOIJA
o Facts: Francisco married a 2 nd wife, Tasiana,
after his 1st wife died. With his 1st wife, he had
2 kids who engaged in legal disputes over his
properties with Tasiana upon Francisco’s
death. Tasiana & the kids signed an
extrajudicial settlement to put a stop to the
bickering. In the agreement, it was stated that,
in exchange for Tasiana’s hereditary share in
the estate, the heirs would pay her P800,000.
Tasiana now wants to assail the extrajudicial
settlement’s validity, claiming that the
agreement was void. Is it?
o Held: It’s VALID. As a hereditary share in a
decedent’s estate is transmitted or vested
immediately from the moment of the death of
such causante or predecessor in interest (Civil
Code, Art. 777) there is no legal bar to a
successor (with requisite contracting capacity)
disposing of her hereditary share immediately
after such death, even if the actual extent of
such share is not determined until the
subsequent liquidation of the estate. Such a
contract is like a compromise, which the law
favors.
o Note: The presentation of a will for probate is
mandatory when there are unpaid debts.
3) The heirs have the right to be substituted for the deceased
as party in an action that survives.
 CASE: BONILLA V. BARCENA
o Facts: Fortunata instituted a civil action to
quiet title. Before it was finished, Fortunata
died. The trial court dismissed the case as a
result. Was the court correct?
o Held: NO. While it is true that a person who is
dead cannot sue in court, his heirs can
substitute him. The records show that
Fortunata died on July 9, 1975 while the
complaint was filed on March 31, 1975. This
means that when the complaint was filed in
March, Fortunata was still alive, & therefore,
the court had acquired jurisdiction over her
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person. If thereafter she died, the Rules
prescribe the procedure whereby a party who
died during the pendency of the proceeding
can be substituted. Her heirs have thus
acquired interest in the properties in litigation
and became parties in interest in the case.
o Note: The question as to whether an action
survives or not depends on (1) the nature of the
action & (2) the damage sued for. In the causes
of action which survive the wrong complained
affects primarily & principally property &
property rights, the injuriesto the person being
merely incidental, while in the causes of action
which do not survive the injury complained of
is to the person, the property and rights of
properly affected being incidental. As an
example, the quieting of title is a property right
issue.
Don’t Forget!
Art. 777 operates at the very moment of the decedent’s
death.
 The transmission by succession occurs at the precise
moment of death & 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 receiving)
 Transmission is not at the time of declaration of
heirs, or partition, or distribution.
What Precisely is Transmitted
The Net Estate, which consists of –
1. The assets remaining after payment of unpaid money
debts of the decedent
2. The expenses of administration
3. All transmissible non-monetary obligations
CASE: CALALANG-PARULAN V. CALALANG-GARCIA
Facts: This case involves a disputed piece of property, &
whether said property was owned by Pedro, the deceased, as
exclusive property, or as conjugal property shared with his
first wife.
Pedro was first married to Encarnacion, with whom he had
children (respondents in this case). Encarnacion died. Pedro
then married Elvira, & with her, had 2 kids. During the 2 nd
marriage, he got the disputed property registered, but only
under his name, not with his kids from the 1 st marriage. He
then sold the property to Nora, his daughter. Respondents
filed an action to annul Nora’s title to the property. Should
their action prosper?
Held: NO. First, SC looked into the evidence & held that the
property was exclusively Pedro’s, & not included in the
conjugal partnership he had with Encarnacion.
SC further held that the title to the disputed property issued
more than 30 years after the death of Encarnacion was
named exclusively to Pedro, & there was no proof that the
property actually originally belonged to the parents of
Encarnacion.
Based on these facts, it was wrong for the lower courts to
state that Pedro deprived his heirs of their inheritance from
him. In the first place, it was only upon the death of Pedro
that his heirs acquired their respective to their inheritances,
entitling them to their pro indiviso shares to his whole estate.
At the time of the sale of the disputed property, the rights to
the succession were not yet bestowed upon the heirs of
Pedro. As sole & exclusive owner of the property, Pedro had
the right to sell it to Nora. And absent clear and convincing
evidence that the sale was fraudulent or not duly supported
by valuable consideration (in effect an inofficious donation
inter vivos), the respondents have no right to question the
sale of the disputed property on the ground that their father
fraudulently deprived them of their respective shares.
What are Determined as of Time of Death (from Calalang-
Parulan v. Calalang-Garcia)
The following are determined as of the time of death:
1. The capacity of the heir is determined as of the time
the decedent died (Art. 1034);
2. The legitime is to be computed as of the same
moment (Art. 908), and
3. The inofficiousness of the donation inter vivos (Art.
771).
4. Similarly, the legacies of credit & remission are valid
only in the amount due and outstanding at the death
of the testator (Art. 935), &
5. The fruits accruing after that instant are deemed to
pertain to the legatee (Art. 948).
Class Discussion
Q: Formalities of a will are determined at the time of the
execution of the will, but the validity of the will is
determined by the law at the time of the execution. If a
person writes a will which is in his own handwriting (i.e., a
holographic will) and under the law at that time, it was
invalid, but when he died, a holographic will would be valid.
Is that a valid will?
A: No, the will’s validity as to its form is determined by the
time that it is made.
Q: Mrs. C, a widow, gave D an option to buy her land at
P100 per sqm. During the option period, C died, leaving E as
her sole heir. When D decided to exercise his option to
purchase the land, E refused to sell, on the ground that the
land is now worth P200 per sqm. D sued E for specific
performance. Decide.
A: D’s action for specific performance must prevail.
Jurisprudence holds that the death of a party does not excuse
nonperformance of an obligation when the same involves a
property right. In the case at bar, Mrs. C's obligation under
the option to buy binds her, her heirs, and assigns by express
provision of the Civil Code. The only exceptions to this rule
are (1) when the nature of the obligation renders the same
intransmissible, (2) when the parties stipulate to the contrary,
and (3) when the law so provides for the contrary. None of
the exceptional circumstances are availing; thus, E as Mrs.
C's heir must perform the obligation according to its original
tenor, which in this case, is to sell the land for P100 per sqm.
Q: Prior to the effectivity of the New Civil Code, F executed
a last will and testament in which he bequeathed his entire
estate to his legitimate children, leaving nothing to his
illegitimate children who were not entitled to inherit under
the law. F died after the effectivity of the New Civil Code,
which grants hereditary rights to illegitimate children. Can
the illegitimate children of F demand a part of the
inheritance? Explain.
A: Yes, the illegitimate children of F can demand a part of
the inheritance. Succession takes place upon the death of the
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decedent, and this gives rise to the principle that the law
which governs succession is that in effectivity at the death of
the decedent. Since the New Civil Code was in effect at the
moment of F’s death, it is this law which governs succession
in the instant case. Thus, the illegitimate children can claim
their share in the inheritance under the New Civil Code.
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 executed in
the form prescribed by law. (n)
*Article 780. Mixed succession is that effected partly by
will and partly by operation of law. (n)
*Defining Intestate Succession
Intestate or legal succession takes place by operation of law
in the absence of a valid will.
 Note that the law does not explicitly provide a
definition for intestate succession. This definition is
based on legislative drafts.
Legitimes or Compulsory Succession
This is not precisely accommodated in Art. 778, but should
be. The points to remember:
 Legitime operates whether or not there is a will, & in
fact prevails over a will
 Rules of legitime may apply to the exclusion of
intestacy
Intestate v. Compulsory Succession
Intestate Compulsory
Operates ONLY in default Operates whether or not
of a will there is a will, & in fact
prevails over a will
Rules of intestacy will apply Rules of legitime may
sometimes operate to the
exclusion of the rules of
intestacy
Currently, No Contractual Succession in the Philippines
 Under the Civil Code, there was contractual
succession – when future spouses give one another
property in their settlements, only in the event of
death.
 Current Family Code – Donations of future property
shall be governed by the provisions on testamentary
succession & the formalities of wills (Art. 84, par. 2);
because of this rule, contractual succession no longer
exists.
Different Kinds of Succession
1. Compulsory — succession to the legitime (this
prevails over all other kinds)
2. Testamentary — succession by will
3. Intestate — succession in default of a will
4. Mixed — not a distinct kind really, but a
combination of any 2 or all of the first 3
Article 781. The inheritance of a person includes not only
the property & the transmissible rights & obligations
existing at the time of his death, but also those which have
accrued thereto since the opening of the succession. (n)
Flaw in Wording
Article 781 is best deleted; it serves only to confuse. The
inheritance includes only those things enumerated in Art.
776.
 Whatever accrues thereto after the decedent’s death
belongs to the heir, not by virtue of succession, but
by virtue of ownership
 To say that accruals to the inheritance after the
decedent’s death are included in the inheritance is to
negate the principle in Art. 777 that transmission
takes place precisely at the moment of death
CASE: BALUS V. BALUS
Facts: During his lifetime, Rufo mortgaged a piece of
property he owned to the Rural Bank. He failed to pay his
loan on the stipulated date; the property was thus sold to the
Bank at a foreclosure sale. 2 years after, a new title was
issued in favor of the Bank. When Rufo died, respondents &
petitioner, Rufo’s kids, executed an extrajudicial settlement
of his estate, adjudicating to each of them a portion of the
property, whilst admitting knowledge of Rufo’s mortgage. 3
years after the settlement, the respondents bought the
property from the Bank, while petitioner continued to reside
thereon. Respondents then filed a complaint for recovery of
possession against petitioner. Petitioner, however, argued
that he was a co-owner of the property & was entitled to stay
thereon. Is his contention valid?
Held: NO. Both respondent & petitioner based their
arguments on the fact that they executed an extrajudicial
settlement as to the property following Rufo’s death. But
they both rely on the wrong premise. To begin with, the
subject property is actually exclusively the property of the
Bank, which acquired exclusive ownership of the contested
lot during Rufo’s lifetime through the foreclosure sale. The
rights to a person’s succession are transmitted from the
moment of death. Here, since Rufo lost ownership of the
subject property during his lifetime, it only follows that at
the time of his death, the disputed parcel of land no longer
formed part of his estate to which his heirs may claim. As
such, petitioner & respondents NEVER inherited the subject
lot from Rufo.
Class Discussion
Q: What if, when the decedent died, there were mangos on
the trees, already produced. To whom do the fruits belong?
A: To the heir, because of succession.
Q: What if there is a building, and there were rentals which
accrued prior to the death of the decedent. Who inherits the
property?
A: The heir, via succession.
Q: You succeed in an orchard of mango trees. By virtue of
succession, you become the owner of the orchard. The
following month, the trees bear fruit. Who owns the fruit?
A: You, the heir. You get the fruits because of
ACCESSION, not succession.
Article 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.
Devisees & legatees are persons to whom gifts of real &
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personal property are respectively given by virtue of a will.
(n)
*Definitions
 Heir - one who succeeds to the (1) whole or (2) an
aliquot part of the inheritance
 Devisee - those who succeed to definite, specific, &
individual REAL properties.
 Legatee - those who succeed to definite, specific, &
individual PERSONAL properties.
Why is it Important?
In cases of preterition the institution of heir is annulled,
while the institution of legatees & devisees is effective to the
extent that the legitimes are not impaired.
Class Discussion
Q: If I receive a car from my deceased father, am I an heir or
a legatee?
A: I am both.
Q: If I get 1/3 of the decedent’s horses, what am I?
A: An heir, because this refers to an aliquot portion.
Q: If I give you all my houses in Baguio, what are you?
A: A devisee.
Q: I give you ¼ of my houses in Baguio. What are you?
A: I would be an heir because the houses I will get have yet
to be determined with specificity.
Q: In his last will and testament, G bequeaths 100 heads of
carabao to be taken from his herd in Nueva Ecija, to H. Is H
an heir or a legatee? Explain.
A: It is submitted that H is a legatee. An heir is one who
success to the whole, or to an aliquot part, of the decedent’s
estate. On the other hand, a legatee is one to whom specific
property has been bequeathed. The bequeathal of 100 heads
of carabao to be taken from the herd is specific and
determinate. Therefore, H is a legatee.
CHAPTER 2. Testamentary Succession
SECTION 1. Wills
SUBSECTION 1. Wills in General
*Article 783. A will is an act whereby a person is
permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take
effect after his death. (667a)
Operative Words in the Definition
 Act – Balane thinks the word is too broad & a more
specific term, like “instrument,” should have been
used
 Permitted – will-making is purely statutory
 Formalities prescribed by law – wills must follow the
forms prescribed respectively for attested &
holographic wills
 Control to a certain degree – limited by the rules on
legitimes
 After his death – it is mortis causa
An Alternative Definition
A will is a personal, solemn, revocable, & free act by which It is the exercise of the disposing power that cannot be
a capacitated person disposes of his property and rights and delegated. Thus, mechanical aspects, such as typing, do not
declares or complies with duties to take effect after his fall within the prohibition.
death.
Article 785. The duration or efficacy of the designation of
*11 Characteristics of Wills heirs, devisees or legatees, or the determination of the
(DEERS-PFIUMS – Deers’ Perfumes) portions which they are to take, when referred to by name,
1. Dispositive of property cannot be left to the discretion of a third person.
2. Executed with animus testandi
3. Executed with testamentary capacity Non-Delegable Aspects of Will-Making
4. Revocable or ambulatory The ff. constitute the essence of will-making or the exercise
5. Statutory of disposing power, & are non-delegable: (HDP)
6. Purely personal 1. The designation of Heirs, devisees or legatees
7. Free and intelligent 2. The Duration or efficacy of such designation
8. Individual (including conditions, terms & substitutions)
9. Unilateral 3. The determination of the Portions they are to receive
10. Mortis causa
11. Solemn & formal Class Institutions & Art. 786
Class institutions & those falling under Art. 786 do not have
Vitiation of Consent to specify the portions going to the several recipients.
A testator’s consent should not be vitiated by:
1. Insanity Article 786. The testator may entrust to a third person:
2. Violence  The distribution of specific property or sums of
3. Intimidation money that he may leave in general to specified
4. Undue influence classes or causes, and also,
5. Fraud  The designation of the persons, institutions or
6. Mistake establishments to which such property or sums are
to be given or applied. (671a)
Attested v. Holographic
 Attested – ordinary, notarial wills, subscribed by the Rules of Art. 786
testator or his agent in his presence and by express  Art. 786 is the exception to the general rule that will-
direction thereof, in the presence of at least 3 credible making cannot be delegated.
witnesses; there are several other requirements for  Two things MUST be determined by the testator under
compliance this Article:
 Holographic – a will completely handwritten by the 1. The property or amount of money to be given,
testator, dated by him & signed by him and
2. The class or the cause to be benefited.
Joint Wills  Two things MAY be delegated by the testator:
Joint wills are prohibited in this jurisdiction. 1. The designation of persons, institutions, or
establishments within the class or cause
Animus Testandi 2. The manner of distribution
CASE: MONTINOLA V. HERBOSA
Issue: Is the line “To you I leave everything, my parents, my Sample Scenario for Pondering
loves” in Rizal’s famous final poem a will? Q: X specified the recipients (by specific designation) but
Held: NO. An instrument which merely expresses a last wish left to the third person the determination of the sharing. As
as a thought or advice but does not contain a disposition of such, X wrote: “I leave P500,000 to be given to A, B & C, to
property and was not executed with animus testandi cannot be distributed among them in such proportions as my
legally be considered a will. The poem was intended as a executor may determine.” Is this valid?
literary work. A1: NO. The law prohibits this; the recipients are referred to
by name & therefore, their portions must be specifically
Disinheritance determined by the testator. Art. 786 applies only when the
A holographic document which contains only a clause testator specifies only a class or cause, not specific
disinheriting one of the testator’s sons is considered a recipients.
document of disposition & must comply with the formalities A2: YES. This gives lesser discretion to the appointed third
of a will, one which must be admitted to probate to be person than the instances in Art. 786, and should thus be
effected (Seangio v. Reyes). allowed.
Article 784. The making of a will is a strictly personal act; Article 787. The testator may not make a testamentary
it cannot – disposition in such manner that another person has to
1. Be left in whole or in part to the discretion of a third determine whether or not it is to be operative. (n)
person, or
2. Accomplished through the instrumentality of an
Rule in Art. 787
agent or attorney. (670a)
This article prohibits the delegation to a third person of the
power to decide whether a disposition should take effect or
Mechanical acts may be done by others not.

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  Ex. “I leave ¼ of my estate to A, and I authorize B to
decide whether or not this disposition should be
given effect or not.” This is prohibited.
 NOTE: The heir is free to accept or renounce any
testamentary benefit given to him, without
contradicting Art. 787.
Article 788. If a testamentary disposition admits of
different interpretations, in case of doubt, that interpretation
by which the disposition is to be operative shall be
preferred. (n)
Testacy is Preferred to Intestacy
 Testamentary succession shows the express will of
the decedent, whereas the latter is only his implied
will.
Article 789. When there is an imperfect description, or
when no person or property exactly answers the
description, mistakes & omissions must be corrected, if the
error appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator as
to his intention; and when an uncertainty arises upon the
face of the will, as to the application of any of its
provisions, the testator's intention is to be ascertained from
the words of the will, taking into consideration the
circumstances under which it was made, excluding such
oral declarations. (n)
Two Kinds of Ambiguity in Art. 789
1. Latent – Not obvious on the face of the will
 As to person – “I institute to ¼ of my estate my
first cousin, Jose.” But the testator has more than
one cousin named Jose.
 As to object – “I devise to my cousin Pacifico my
fishpond in Roxas City.” But the testator has 5
fishponds in Roxas City.
2. Patent – Obvious on the face of the will
 As to person – “I institute to ¼ of my estate some
of my first cousins.”
 As to property – “I bequeath to my cousin Pacifico
some of my cars.”
How to Deal with Ambiguities
 These rules apply to both patent & latent ambiguities.
 The ambiguity should, as far as possible, be cleared
up & resolved, in order to give effect to the
testamentary disposition
 Method of resolving: any evidence admissible &
relevant may be given
o EXCEPT: The oral declarations of the testator
as to his intention
 Follow provisions of the Civil Code as to the
interpretation of contracts
Article 790. The words of a will are to be taken in their
ordinary & grammatical sense, unless a clear intention to
use them in another sense can be gathered, & that other can
be ascertained.
Technical words in a will are to be taken in their technical
sense, unless the context clearly indicates a contrary
intention, or unless it satisfactorily appears that the will was
drawn solely by the testator, & that he was unacquainted
with such technical sense. (675a)
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Similar Provisions in Rule 130 of the Rules of Court
 Sec. 10 – 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 – The terms of a writing are presumed to
have been used in their primary & general
application, but evidence is admissible to show that
they have a local, technical, or otherwise particular
signification, & were so used & understood in the
particular instance, in which case the agreement must
be construed accordingly.
Similar Provision in Art. 1370, par. 1 of the Civil Code
If the terms of a contract are clear & leave no doubt upon the
intention of the contracting parties, the literal meaning of the
stipulations shall control.
*Article 791. 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; & of two modes of interpreting a
will, that is to be preferred which will prevent intestacy. (n)
Similar Provisions in Rule 130 of the Rules of Court
In the construction of an instrument where there are several
provisions or particulars, such a construction is, if possible,
to be adopted as will give effect to all.
Similar Provisions in the Civil Code
 Art. 1373 – If some stipulation of any contract should
admit of several meanings, it shall be understood as
bearing that import which is most adequate to render
it effectual.
 Art. 1374 – The various stipulations of a contract
shall be interpreted together, attributing to the
doubtful ones that sense which may result from al of
them taken jointly.
Article 792. The invalidity of one of several dispositions
contained in a will does not result in the invalidity of the
other dispositions,
 UNLESS it is to be presumed that the testator would
not have made such other dispositions if the first
invalid disposition had not been made. (n)
Separability Clause
This codal refers to the separability clause that is used in
statutory construction.
Article 793. Property acquired after the making of a will
shall only pass thereby, as if the testator had possessed it at
the time of making the will, should it expressly appear by
the will that such was his intention. (n)
Questionable Language of Art. 793
 This article makes it appear that the will speaks as of
the time it is made, rather than at the time of the
decedent’s death.
 Ex. X executes a will in 1980 stating, “I will leave ¼ of
my estate to A.” In 1980, his estate was worth
P100,000. At the time of his death in 1990, his estate
was worth P500,000. Yet, if Art. 793 is the basis, X will
only get ¼ of P100,000, or P25,000.

Better Language
Better version would be: “Property acquired after the making
of a will passes thereby unless the contrary clearly appears
from the words or context of the will.”
Q: A testator in his will bequeathed “ all my horses to my
son Adam.” At the time he executed his said will, the testator
owned 50 horses, 10 of which were pregnant mares. On the
date he died, the mares had already given birth to 10 colts,
increasing the herd to 60 horses. How many horses can
Adam claim as his inheritance? Why?
A: Adam can only claim 50 horses, by express provision of
law that only the properties of the testator present at the time
of execution of the will may pass thereby. This is an
exception to the rule that succession takes place at the
moment of death of the decedent.
*Note: This was the answer provided in the quiz; personally
not sure if it is correct.
Article 794. Every devise or legacy shall cover all the
interest which the testator could device or bequeath in the
property disposed of,
 UNLESS it clearly appears from the will that he
intended to convey a less interest. (n)
Notes on Art. 794
GR: In a legacy or device, the testators gives exactly the
interest he has in a thing.
EXC: He can give a less interest or a greater interest (Art.
929) than he has.
 If he gives a greater interest, if the person owning the
interest does not wish to part with it, the solution in
Art. 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 acquired.5
Article 795. The validity of a will as to its form depends
upon the observance of the law in force at the time it is
made. (n)
Aspects of Validity of Wills
1. Extrinsic – formal validity
a. Governing law as to time:
5 be given his full share according to this Code. (Rule 12a)
Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in
the thing bequeathed, the legacy or devise shall be understood limited to such
part or interest, unless the testator expressly declares that he gives the thing in
its entirety. (864a)
Art. 931. If the testator orders that a thing belonging to another be acquired in
order that it be given to a legatee or devisee, the heir upon whom the
obligation is imposed or the estate must acquire it and give the same to the
legatee or devisee; but if the owner of the thing refuses to alienate the same, or
demands an excessive price therefor, the heir or the estate shall only be
obliged to give the just value of the thing. (861a)
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 For Filipinos – the law in force when
the will was executed
 For foreigners – same rule, IF the will
is being probated here
b. Governing law as to place for Filipinos and
foreigners:
 Law of citizenship
 Law of domicile
 Law of residence
 Law of place of execution
 Philippine law
2. Intrinsic – substantive validity
a. Governing law as to time
 For Filipinos – the law as of the time of
death6
 For foreigners – depends on their
personal law7
b. Governing law as to place
 For Filipinos – Philippine law
 For foreigners – their national law8
CASE: IN RE WILL OF RIOSA
Facts: Jose Riosa died in 1917. He left a will made in
January 1908, using Sec. 618 of the Code of Civil
Procedure, the law in force at the time, which required less
formalities. When he died, the law in force was already Act
No. 2645. The latter law was enacted before he died, in
1916. Which governs?
Held: The Code of Civil Procedure, in force when he
executed the will, governs. When a testator makes a will
following the formal requisites at the time he executed it, it
would be unjust to disappoint his lawful right of disposition
because of a rule subsequently enacted, though before his
death.
CASE: ENRIQUEZ V. ABADIA
Facts: Fr. Abadia made a holographic will (i.e., handwritten)
before the effectivity of the new Civil Code. The old law did
not allow holographic wills. Andres Enriquez, an heir
according to the holographic will, filed a petition for its
probate. The other heirs opposed him, stating the
holographic will was not valid. Is the will valid?
Held: NO. Fr. Abadia is to be regarded as having died
intestate. The law in force at the time he executed the will
did not permit a holographic will. As such, it is deemed that
his heirs, by law, have acquired a vested right to the
properties that his heirs under the holographic will cannot
claim owing to the will’s invalidity.
6
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 inheritance of
those who, with or without a will, die after the beginning of the effectivity 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
7
Art. 16, par. 2. 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 regulated by the national
law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said property
may be found. (10a)
8
Art. 1039. Capacity to succeed is governed by the law of the nation of the
decedent.
 SUBSECTION 2.
Testamentary Capacity and Intent
What is testamentary capacity?
It is the legal capacity to make a will.
Who has testamentary capacity?
All natural persons, unless disqualified by law. Juridical
persons are not granted testamentary capacity.
Article 796. All persons who are not expressly prohibited
by law may make a will. (662)
Article 797. Persons of either sex under 18 years of age
cannot make a will. (n)
Legal Periods in Relation to Age (Gregorian Calendar)
 Year – 12 calendar months
 Month – 30 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 – 24 hours
 Night – refers to sunset to sunrise
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)
Unsound Mind (Insanity)
It refers to the absence of the qualities of soundness of mind.
*Article 799. To be of sound mind, it is not necessary:
 That the testator be in full possession of all his
reasoning faculties, or
 That his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of
making the will to know:
1. The nature of the estate to be disposed of,
2. The proper objects of his bounty, and
3. The character of the testamentary act. (n)
Soundness of Mind Defined
Negatively
1. NOT necessary that the testator be in full possession
of his reasoning faculties
2. NOT necessary that testator’s mind be wholly
unbroken, unimpaired, unshattered by disease, injury,
or other cause
Positively (NOC)
1. Nature of estate to be disposed of
2. Proper Objects of one’s bounty
3. Character of the testamentary act
Testator Should:
1. Have fairly accurate knowledge of what he owns
(depending on his circumstances)
 Ex. A super rich dude may not remember
every single asset he owns
2. Know, under ordinary circumstances, his relatives in
the most proximate degrees
 Ex. Knowledge will expectedly decrease as
degrees become more remote, but the testator
shouldn’t be claiming he is related to Adolf
Hitler (unless, of course, he is)
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3. Know that the document he is executing is one which
disposes of his property
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 person who opposes the probate of the will;
 BUT: If the testator, one month, or less, before
making his will was publicly known to be insane,
the person who maintains the validity of the will
must prove that the testator made it during a lucid
interval. (n)
Sanity Presumed
GR: There is a rebuttable presumption of sanity.
EXC: Two instances –
1. When the testator, one month or less, before the
execution of the will was publicly known to be
insane
2. When the testator executed the will after being
placed under guardianship and ordered committed,
in either case, for insanity and before said court
order was lifted
*Note: In the cases where there the exceptions to the
presumption if sanity apply, a will is validated only if it can
be shown that the will was executed at a lucid interval.
CASE: DIONISIO V. DIONISIO
Facts: The petition for the probate of the deceased Josefa
Dionisio was opposed by Angela Dionisio because
apparently:
1. The document was not executed in a form required
by law for a valid will (lacking page numbers
stated in the attestation)
2. At the time of the execution, Josefa was mentally
incapacitated
3. The signatures were forgeries
Held: The will is valid.
1. The original Tagalog version contains the
statement that it was 2 pages long
2. There was no evidence presented to prove this
3. The signature was shaky because she was
extremely feeble and a paralytic when she signed,
but that does not equate to forgery
CASE: BUGNAO V. UBAG
Facts: Domingo Ubag made a will where he bequeathed
everything he owned to his wife. His wife petitioned for the
probate of the will but Domingo’s brothers opposed, saying
that the signature on it was forged, and that Domingo was
too ill to make a will.
Held: The signature was valid. The siblings were not able to
bring forth any evidence to the contrary. If his signature was
more deliberate, it was because he was ill. And also, as
explained by the two witnesses, while Domingo was sick
with tuberculosis and asthma, his physical incapacity did not
establish his mental incapacity or lack of testamentary
capacity.
Between the highest degree of soundness of mind & memory
which unquestionably carries with it full testamentary
capacity, & that degree of mental aberration generally
known as insanity or idiocy, there are numberless degrees of
mental capacity or incapacity. 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
incapacity does not necessarily require that a person shall
actually be insane or of unsound mind.
Thus, once the three elements of testamentary capacity are
proven, it is presumed that the executor was capacitated.
CASE: GALVEZ V. GALVEZ
Facts: Victor Galvez died. However, he left two alleged
wills – one in his provincial dialect (the second will, which
corrected the first will) & one in Tagalog (the first will),
both with different sets of witnesses. Canuta, Victor’s
daughter, claimed that Victor was not of sound enough mind
to execute the alleged wills, because he had cholera and was
very sick. Is the will valid?
Held: YES. In order to hold that Victor, on account of
serious illness, the proceedings should have disclosed
conclusive proof of his mental incapacity and of his evident
lack of reason and judgment at the time he executed his will
in the presence of the witnesses whose signatures are on the
will.
CASE: HERNAEZ V. HERNAEZ
Facts: Doña Juana Espinoza executed a will before she died.
One of her sons petitioned for the annulment of her will
because –
1. She was lacking in mental capacity when she
executed it
2. The notary wrote it in Spanish and she spoke in
Visayan, and the notary did not fully understand
her. There should have been two translators.
3. There should have been two doctors present since
she was so ill
Held: The will is valid.
1. The presumption is that a testator has soundness of
mental faculties until the contrary is proven.
Mental soundness is always to be presumed with
respect to a person who has not been previously
incapacitated until the contrary is demonstrated by
the proper person.
2. This is not a reason to invalidate; notaries are
required to write in Spanish and the notary could
have availed of a translator; what is more, two
translators are only needed if the language is
foreign
3. This is only necessary if she was shown to be
mentally incapacitated, to prove there was a lucid
interval
CASE: BAGTAS V. PAGUIO
Facts: Pioquinto Pizarro’s will is being contested via
petition. At the time he died, Pioquinto had been paralyzed
on the left side of his body for 14-15 years, & had lost his
power of hearing and speech. However, he was able to
communicate with his family, friends and doctors by writing
on pieces of paper. This was also how he wrote out his will;
writing on scraps and asking his witnesses to aid him in
piecing them into one long form. Is the will valid?
Held: YES. There was no proof presented that he suffered
from mental incapacity; the doctor presented as witness, who
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said he had a “mental disorder,” was not able to state how
this exactly would affect his faculties in his disposition of his
properties. It is a question of degree – so long as one’s mind
and memory are sufficiently sound to enable him to know
and understand what he is doing at the time he executed his
will, the will is valid.
Q: On the date that Rosario executed her will, she was
already 90 years old, & suffering from high fever which
confined her to her bed. In fact, she died 3 days after the
alleged execution of her last will. Can she be considered as
lacking in testamentary capacity at the time of execution of
her will?
A: Jurisprudence provides that there is a presumption of
soundness of mind, which is essential to possession of
testamentary capacity, unless evidence to the contrary is
shown. Old age & physical infirmities (i.e., high fever) do
not necessarily lead to the conclusion that the testator is of
unsound mind so long as the testator, at the time of the
execution of the will, is shown to have understood (1) the
nature of his estate, (2) the proper object of his bounty, and
(3) the character of the testamentary act. In this case, absent
a clear showing that Rosario failed to comprehend any 1 of
the 3 aforementioned factors, there lies a presumption of
sanity &, corollarily, testamentary capacity in her favor.
Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by
the supervening of capacity. (n)
Time for Determining Mental Capacity
Time of execution of will; no other temporal criterion is to
be applied.
Article 802. A married woman may make a will without
the consent of her husband, and without the authority of the
court. (n)
Suggested Wording
“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 conjugal
partnership or absolute community property. (n)
Art. 97, Family Code
Either spouse may dispose by will of his or her interest in the
community property.
SUBSECTION 3. Forms of Wills
*Article 804. Every will must be in writing & executed in a
language or dialect known to the testator. (n)
*2 Common Requirements of All Wills
(1) In writing
(2) In a language or dialect known to the testator
*NOTE: Failure to comply with the two requirements
nullifies the will.
Oral Wills
 GR: Oral wills are not allowed in the Philippines
 EXC: Code of Muslim Personal Laws
CASE: SUROZA V. HONRADO
Facts: Marcelina is the mother of Agapito, a disabled man
who is married to Nenita. 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. In
that will, Marcelina bequeathed all her estate to her supposed
granddaughter Marilyn. Marina Paje, alleged to be a
laundrywoman of Marcelina & the executrixin her will filed
a petition for the probate of Marcelina’s alleged will. When
Nenita found out, she filed an opposition with the court to
the appointment of Marina as administratrix, stating that
Agapito was actually Marcelina’s only heir. The trial court
judge denied her opposition. Should the judge be sanctioned
for his actions?
Held: YES. 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 paragraph, it was stated that the will was read to
the testatrix ‘and was translated into Filipino language.’ That
could only mean that the will was written in a language not
known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of Art. 804 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 & was disallowed.
Presumption of Compliance
 Neither the will nor the attestation clause need state
compliance with this requirement. This can be
proved by extrinsic evidence.
 It may sometimes be presumed that the testator knew
the language in which the will was written.
CASE: ABANGAN V. ABANGAN
Facts: It is alleged the records do notshow that the testatrix
knew the dialect in which the will is written. Is this enough
to invalidate the will?
Held: NO. The will states that it was executed in the city of
Cebu and in the dialect of this locality where the testatrix
was a neighbor is enough, in the absence of any proof to the
contrary, to presume that she knew this dialect in which this
will is written. Thus, in order for the presumptions to apply,
the ff. 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.
*NOTE: Properly speaking, compliance with the language
requirement is not then presumed but proved by these
attendant circumstances.
Q: A Filipino OFW who had been working in Dubai for one
year executed a will in the Arabic language. It is being
contested on the ground that the will is not in a language
known to the testator. Is it valid or not?
A: The will is valid. There arises in jurisprudence a
presumption that the language in which the will is written is
known to the testator, so long as a concurrence of the
following is shown:
1) That the language is a dialect spoken in the place of
execution; &
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2) That the testator is a resident of the place of execution.
This presumption works in favor of the testator in the instant
case (i.e., the Filipino OFW); therefore, the will is valid.
*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, & by his express direction, &
attested & subscribed by 3 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 & the instrumental witnesses of the will, shall also
sign, as aforesaid, each & every page thereof, except the
last, on the left margin, & all the pages shall be numbered
correlatively in letters placed on the upper part of each
page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will & 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 & 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)
Class Discussion
Q: What happens if Starr, a testator, signs her name in the
form of a “star” symbol. Is this valid?
A: ONLY if it is proven that it is Starr’s usual signature.
Otherwise, it is not really a signature and will not be
counted.
Q: The will of Pedro is typewritten, but the attestation clause
is in the handwriting of one of the witnesses, because the
typewriter had broken down. Is the will valid or not?
A: The will is valid. The law does not require an attested
will to be entirely typewritten or alternatively, entirely
handwritten, unlike a holographic will. Thus, such
circumstance of a partially typewritten, partially handwritten
will is not fatal to the validity of the will, so long as the same
complies with the requirements under Arts. 805 & 806.
Article 806. Every will must be acknowledged before a
notary public by the testator & 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)
*Requirements for attested (ordinary or notarial) wills
(T3T-SWIS-LAA – Tetris laaaa!)
(1) Subscribed by the Testator or his agent in his presence &
by his express direction at the end thereof, in the presence of
the witnesses;
(2) Attested & subscribed by at least 3 credible witnesses in
the presence of the testator & 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 testator & of one
another;
(5) All pages numbered correlatively in Letters on the upper
part of each page;
(6) An 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 & every page
thereof, in the presence of the witnesses;
c) The fact that the witnesses witnessed & signed the
will and every page thereof in the presence of the
testator and one another;
(7) Acknowledgment before a notary public.
Attestation Clause & Agent’s Signature
The attestation clause is not required to state that the agent
signed in the testator’s presence.
No Date Needed for Attested Wills
There is no requirement that an attested will should be dated,
unlike a holographic will
 Thus: A variance between the indicated dates of
execution & acknowledgment does not in itself
invalidate the will.
What is the Attestation Clause? (Caneda v. CA)
It is that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed
before them & to the manner of the execution of the same.
 It is a separate memorandum or record of the facts
surrounding the conduct of execution & once signed
by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by
law has been observed.
 It preserves 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.
CASE: PAYAD V. TOLENTINO
Facts: The testator placed her thumb mark on each & every
page of the questioned will & her attorney merely wrote her
name to indicate the place where she placed said
thumbmark. In other words, her attorney did not sign for the
testatrix. The testator signed by placing her thumb mark on
each & every page thereof.
Held: This is VALID. A statute requiring a will to be
‘signed’ is satisfied if the signature is made by the testator’s
mark. It is not necessary that the attestation clause should
state that the testatrix requested her attorney to sign her
name, inasmuch as the testatrix signed the will, through her
thumbmark, in accordance with law.
CASE: MATIAS V. SALUD
Facts: Gabina Raquel, the testatrix, asked her witnesses to
gather around, & they watched as she attempted to sign. Due
to pain in her arm, however, she did not attempt further, &
instead she just affixed her thumbmark on the pages. The
lawyer present also instructed Lourdes, a witness, to write
beside the thumbmark, “Gabina Raquel by Lourdes
Samonte.” The contestant, however, urges that the
fingermark of the testatrix cannot be regarded as her valid
signature since it does not show distinct identifying
ridgelines; thus, the attestation clause should be held
defective because it fails to state that Lourdes Samonte
signed for the testator under Gabina’s express direction. Is
the attestation clause valid?
Held: YES. 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. As to the
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clarity of the ridge impressions, it is so dependent on
aleatory circumstances (consistency of the ink, over-inking,
slipping of the finger, etc.) as to require a dexterity that can
be expected of very few persons; and testators should not be
required to possess the skill of trained officers. It is to be
conceded that where a testator employs an unfamiliar way of
signing, and both the attestation clause and the will are silent
on the matter, such silence is a factor to be considered
against the authenticity of the testament; but the failure to
describe the unusual signature by itself alone is not sufficient
to refuse probate when the evidence for the proponent fully
satisfies the court (as it does satisfy in this case) that the will
was executed and witnessed as required by law.
Thumbmarks as Signature
These are always valid, even when the testator is not sick.
 When the law says that the will shall be “signed” by
the testator, the law is fulfilled by
o The testator’s customary written signature
o The testator’s thumbmark
Class Discussion
Q: Suppose the agent wrote his own name but on top of that,
the testator put his thumbmark. Is that a valid will?
A: YES. The thumbmark is already considered the signature.
The writing by the other person is actually a surplusage.
Q: Because he was illiterate, Jose asked Jesus to sign for him
in his will. Jesus signed his own name instead of the name of
Jose. However, he also had Jose place his thumbmark on top
of Jesus’ signatures. The thumbmarks are blurred because of
tremors of Jose’s hand. Is the will valid or not?
A: The will is valid. As held by jurisprudence, the
thumbmark of the testator is a valid substitute to his official
signature & that the person signing the testator's name need
not write his own. In the case at bar, even though Jesus made
the mistake of signing his own name instead of Jose's, an act
which may invalidate the will, this does not matter because
Jose was able to subscribe to the will. The thumbmark of
Jose is sufficient proof that he subscribed the will, and thus
the will complies with the formal requisites of the law.
CASE: DE GALA V. GONZALES
Facts: Testatrix signed using a thumb mark. In the attestation
clause, it is not mentioned that the testatrix signed by thumb
mark. But, in the last par. of the will, she mentioned that she
signed it using her thumb mark. Is the will valid?
Held: YES. It appeared in the attestation clause that the
signature was affixed in the presence of the witnesses, and
the form of the signature is sufficiently described and
explained in the last clause of the body of the will. It may be
conceded that the attestation clause does not, standing alone,
quite meet the requirements of the statute, but taken in
connection with the last clause of the body of the will, it is
fairly clear and sufficiently carries out the legislative intent.
CASE: CUEVAS V. ACHACOSO
Facts: The main error assigned refers to the alleged lack of
attestation clause in the will under consideration, or to the
fact that, if there is such attestation clause, the same has not
been signed by the instrumental witnesses, but by the testator
himself, and it is claimed that this defect has the effect of
invalidating the will. Is the will valid?
Held: YES. It substantially complies with the statue. The
apparent anomaly is not serious to invalidate the will, it
appearing that right under the signature of the testator, there
appear the signatures of the 3 witnesses.
The fact that the instrumental witnesses signed the will
immediately under the signature of the testator, shows that
they have in fact attested not only to the genuineness of his
signature but also to the due execution of the will as
embodied in the attestation clause.
As was said in one case, "the object of the solemnities
surrounding the execution of the 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 this 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, & frustrative of the testator's will, must
be disregarded.
Crosses as Signature
A sign of the cross 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.
CASE: GARCIA V. LA CUESTA
Facts: The will of Antero Mercado was signed by Atty.
Javier, who wrote the former’s name, followed below by ‘A
ruego del testador’ and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after
his name. Is this a valid attestation clause?
Held: NO. The attestation clause is fatally defective for
failing to state that Antero Mercado caused Atty. Javier to
write the testator’s name under his express direction, as
required by Sec. 618 of the Code of Civil Procedure. The
petitioner argues, however, that there is no need for such
recital because the cross written by the testator after his
name is a sufficient signature & the signature of Atty. Javier
is a surplusage. But it is not pretended that the cross
appearing on the will is the usual signature of Mercadoor
even one of the ways by which he signed his name. The
Court thus chose not to liken the mere sign of a cross to a
thumbmark.
*NOTE: There was no showing 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. This
is different from Matias v. Salud, because there, it was
shown that the herpes zoster that afflicted the right arm &
shoulder of the testatrix made writing a difficult & 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, & evidently discouraged
attempts to sign.
Q: An attested will contains no date of its execution,
although the notarial certification contains a date of
acknowledgment. Is it valid or not? Explain.
A: The will is valid. The law does not require an attested
will to contain a date of execution, unlike in the case of a
holographic will. Thus, such defect of no date written is not
fatal to the validity of the will.
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*Requisites: Signing by an Agent of the Testator
1. Agent must sign in testator’s presence, &
2. By his express direction
CASE: BARUT V. CABACUNGAN
Facts: Maria Salomon initially made a will. However, after
disposing of her property, the testatrix revoked all former
wills she made & made a new one. She also stated in said
new will that, being unable to read or write, the same had
been read to her by Concepcion & Inoselda, & that she had
instructed Severo Agayan to sign her name to it as testatrix.
The trial court disallowed the probate of this latest will
because the handwriting of the person who it is alleged to
have signed the name of the testatrix for & on her behalf
looked more like the handwriting of one of the other
witnesses to the will, & not the handwriting of the person it
was alleged to be. Is this enough to invalidate the will?
Held: NO. With respect to the validity of the will, it is
unimportant 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 3 witnesses & that
they attested & subscribed it in her presence & in the
presence of each other. That is all the statute requires. It may
be wise 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 absolutely 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 is unnecessary under the law.
Nor is such requirement found in any other branch of the
law. Another may sign the name of a person who is unable
to write by express direction to any instrument known to the
law. There is no necessity whatever, so far as the validity of
the instrument is concerned, for the person who writes the
name of the principal in the document to sign his own name
also. The main thing to be established in the execution of the
will is the signature of the testator. If that signature is
proved, whether it is written by himself or by another at his
request, it is valid. To hold a will invalid for the lack of the
signature of the person signing the name of the principal is,
in the particular case, a complete abrogation of the law of
wills, as it destroys a will which is valid.
May the Agent Be One of the Attesting Witnesses?
If there are more than 3 Sure, why not?!
witnesses
If there are only 3 witnesses Uncertain.
Signing at the End
 If the will contains only dispositive provisions, there
will be no ambiguity as to where the end of the will
is.
 BUT: If the will contains non-dispositive paragraphs
after the testamentary dispositions, one can refer to
two kinds of end:
o The physical end—where the writing stops;
or
o The logical end—where the last testamentary
disposition ends.
 Signing before the end invalidates the ENTIRE
WILL, & not just the dispositions that come after.
CASE: NERA V. RIMANDO
Facts: There was a factual issue as to the presence & vicinity
of one of the subscribing witnesses in the small room when
the testator & the other subscribing witness were attaching
their signatures to the will. However, it was determined,
factually, that all the witnesses were in the small room when
the signing occurred. Should the document be admitted to
probate?
Held: YES, based on the facts. HOWEVER, had the other
subscribing witness NOT been in the room nor even in the
small room, the will would not have been admitted to
probate. The attaching of the signatures MUST be done in
the presence of the 2 required witnesses & the testator. In
fact, the parties have to be in the line of vision of the
document “at the moment of inscription of each signature."
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 inscription of each signature. The position of
the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may
see each other sign if they choose to do so. There should be
no physical obstruction (i.e., a wall or a curtain) preventing
all the parties from seeing.
Class Discussion
Q: What if the testator signed the will on her deathbed but
the three witnesses were all watching volleyball on the TV in
her room when they signed. Is this valid?
A: YES. So long as they COULD have seen it.
What the 3 Witnesses Have to Do
1. Attesting —the act of witnessing
2. Subscribing —the act of signing their names in the
proper places of the will
CASE: TABOADA V. HON. ROSAL
Facts: The witnesses’ signatures were not found at the end,
as the law requires, but on the left-hand margin of the last
page. Does this invalidate the will?
Held: NO. While perfection in the drafting of a will may be
desirable, unsubstantial departure from the usual forms
should be ignored, especially where the authenticity of the
will is not assailed. Literally & ideally, the witnesses should
sign at the end of the will, though failure in this regard may
be overlooked.
Signing in the Presence of the Testator & One Another
The testator, or his agent, must sign every page, except the
last, on the left margin in the presence of the witnesses
 The last page need not be signed by the testator on
the margin because, being the page where the end of
the will is, it already contains the testator’s signature
 There is a mandatory & directory part here –
o Mandatory - the signing on every page in the
witnesses’ presence
o Directory - the place of signing, (i.e. the left
margin); the signature can be affixed
anywhere on the page
 If the entire document consists of only 2 sheets, the
first containing the will and the second, the
attestation clause, there need not be any marginal
signatures at all
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CASE: ICASIANO V. ICASIANO
Facts: In this case, the records show that the original of the
will consists of 5 pages, and while signed at the end and in
every page, it does not contain the signature of one of the
attesting witnesses, Atty. Natividad, on page 3 thereof; but
the duplicate copy attached to the amended and
supplemental petition was signed by the testatrix & the 3
witnesses on each & every page. Should the will be admitted
to probate?
Held: YES. The inadvertent failure of one witness to affix
his signature on one page, due to the simultaneous lifting of
two pages in the course of signing, is not per se sufficient to
justify denial of probate. Impossibility of substitution of this
page is assured not only the fact that the testatrix & 2 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 & all 3
witnesses. The law should not be so strictly & literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had
no control, where the purpose of the law to guarantee the
identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation
existed, and the evidence on record attests to the full
observance of the statutory requisites. Otherwise, witnesses
may sabotage the will by muddling or bungling it or the
attestation clause. It is 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
curtailment of the testamentary privilege.
*Note: This doesn’t necessarily mean that carbon copies will
be allowed at all times; it’s circumstantial.
Previous Jurisprudence
 A testament, with the only page signed at its foot by
testator and witnesses, but not in the left margin,
could nevertheless be probated
 Despite the requirement for the correlative lettering
of the pages of a will, the failure to make the first
page either by letters or numbers is not a fatal defect
Order of Signing
 The order immaterial, provided everything is done in
a single transaction.
 BUT: If the affixation of the signatures is done in
several transactions, then it is required for validity
that the testator affix his signature ahead of the
witnesses.
Numbering of Pages
All pages numbered correlatively in letters on the upper part
of each page.
 Mandatory – pagination by means of a
conventional system; this is to prevent insertion or
removal of pages
 Directory – the pagination in letters on the upper
part of each page
What Attestation Clause Must State
1. The number of pages of the will;
2. The fact that the testator or his agent under his
express direction signed the will & every page
thereof in the presence of the witnesses; &
 3. The fact that the witnesses witnessed & signed the
will & every page thereof in the presence of the
testator & of one another.
Signing of the Attestation Clause
 The testator need not sign the attestation clause
 It is the witnesses who must sign, & they must sign at
the bottom of the attestation clause
CASE: CAGRO V. CAGRO
Facts: In this case, the attesting witnesses did not sign the
will’s attestation clause. The signatures of the 3 witnesses to
the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the
witnesses on the left-hand margin. Is the will valid?
Held: NO. The signatures on the left-hand margin are in
compliance with the legal mandate that the will be signed on
the left-hand margin of all its pages. Thus, it is not
considered signed in relation to the attestation clause. If an
attestation clause not signed by the witnesses at the bottom
thereof, be admitted as sufficient, it would be easy to add
such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
*Dissent: The only objection set up by the oppositors to the
validity of the will is the fact that the signatures of the
instrumental witnesses do not appear immediately after the
attestation clause. This objection is too technical to be
entertained.
Unsigned Attestation Clauses
The ruling in Cagro was affirmed in the case of Azuela: “An
unsigned attestation clause cannot be considered as an act of
the witnesses since the omission of their signatures at the
bottom thereof negatives their participation.”
CASE: AZUELA V. CA
Facts: The will in this case had the ff. issues –
1. The attestation clause failed to state the number of
pages used in writing the will.
2. The attestation clause was not signed by instrumental
witnesses. While the signatures of the witnesses
appear on the left-hand margin of the will, they do
not appear at the bottom of the attestation clause
which consists of their averments before the notary
public.
3. The notary public wrote, "Nilagdaan ko at ninotario
ko ngayong 10 ng Hunyo 1981 dito sa Lungsod ng
Maynila."
Held: The will is INVALID.
 A will whose attestation clause does not contain the
number of pages on which the will is written is
fatally defective.
o This is a fatal flaw, since the purpose of the
law in requiring the clause to state the number
of pages on which the will is written is to
safeguard against possible interpolation or
omission of one or some of its pages to prevent
any increase or decrease in the pages.
Substantial compliance would exist where the
will states elsewhere in it how many pages it is
comprised of; but here, there was no such
statement, hence there was no substantial
compliance.
 A will whose attestation clause is not signed by the
witnesses is fatally defective.
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o An unsigned attestation clause cannot be
considered as an act of the witnesses, since the
omission of their signatures at the bottom
thereof negatives their participation. Further,
Art. 805 particularly segregates the
requirement that witnesses sign each page of
the will from the requirement that the will be
attested and subscribed by the witnesses. The
two classes of signatures are distinct from each
other. The signatures on the left-hand margin
signify that the witnesses are aware that the
page they are signing forms part of the will,
while the signatures at the bottom of the
attestation clause establish that the witnesses
are referring to the statements contained
therein.
 A will without an acknowledgment, but a mere jurat,
is fatally defective. Any one of these defects is
sufficient to deny probate.
o These words cannot be construed as an
acknowledgment, which is the act of one who
has executed a deed in going before some
competent officer or court & declaring it to be
his act or deed. It is possible to construe the
averment as a jurat (part of the affidavit where
the notary certifies that before him, the
document was sworn to and subscribed by the
executor).
o Art. 896 expressly requires that the will be
"acknowledged" ant not merely subscribed or
sworn to. A notarial will that is not
acknowledged before a notary public by the
testator and the witnesses is fatally defective,
even if it is subscribed & sworn to before a
notary public.
 A notarial will with all 3 defects is just aching for
judicial rejection.
Attestation Clauses on a Separate Page
An attestation clause written on a separate page does not
affect the validity of the will.
Mandatory Nature of the Attestation Clause
 Attestation clauses are mandatory for attested wills
 They are separate & distinct from the
acknowledgment clause
 The attestation & acknowledgment clause cannot be
merged
Acknowledgment before a Notary Public
 The act of one who has executed a deed in going
before some competent officer or court & declaring it
to be his act or deed.
 The signatory declares to the notary public that the
document was executed as his or her own free act or
deed.
CASE: JAVELLANA V. LEDESMA
Facts: Apolinaria executed a will in Visayan dialect before
she died. In controversy is the fact that the notary public,
Gimotea, did not execute the acknowledgment in the
presence of the testator & the 3 witnesses. Instead, Gimotea
brought the codicil to his office & signed & sealed it there.
Is the will still valid?
Held: YES. Whether or not the notary signed the
certification of acknowledgment in the presence of the
testatrix and the witnesses, does not affect the validity of the
codicil. The Code does not require that the signing of the
testator, witnesses & notary should be accomplished in one
single act.
Other Things Inferred About Acknowledgments
 The testator & witnesses need not acknowledge on
the same day the will was executed.
 The testator & witnesses need not acknowledge in
each other’s presence.
o BUT: If the acknowledgment is done by the
testator & witnesses separately, all of them
must retain their respective capacities until
the last one has acknowledged.
Class Discussion
Q: Do the witnesses and the testator need to go to the notary
public at the same time?
A: They need not go together; in fact, they can go meet the
notary public separately.
Q: Why is it not necessary for the notary public to submit the
will to the clerk of court, though he must usually do so for
other documents?
A: Because of the nature of a will – it is a confidential
statement which may be revoked.
CASE: CRUZ V. VILLASOR
Facts: There were 3 witnesses who acknowledged the will in
this case, but the 3rd witness who acknowledged the will was
the notary public himself. Is this valid?
Held: NO. The notary public cannot be counted as one of the
attesting witnesses. He cannot acknowledge before himself
his having signed the will. To acknowledge before means to
avow; to own as genuine, to assent, to admit; and ‘before’
means in front or preceding in space or ahead of.
Consequently, if the 3rd 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 participation
in the making of the will. To permit such a situation to
obtain would be sanctioning a sheer absurdity.
CASE: LEE V. TUMBAGO
Facts: The will here was only attested by 2 witnesses. Also,
there was a conspicuous absence of a notation of the
residence certificates of the notarial witnesses in the
acknowledgment. Similarly, it was the testator’s old
residence certificate that was made a notation in the same
acknowledgment. Is the will valid?
Held: NO. There should be 3 witnesses at least. Also, a
cursory examination of the acknowledgment of the will in
question shows that this particular requirement was neither
strictly nor substantially complied with. The omissions by
respondent invalidate the will. These formalities are
mandatory and cannot be disregarded, considering the
degree of importance and evidentiary weight attached to
notarized documents. A notary public, especially a lawyer, is
bound to strictly observe these elementary requirements.
Additional Rules on Notary Publics
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 The notary public must be duly commissioned for the
locality where the acknowledgment is made.
Otherwise, the notarization & the will is void.
 Affixing the documentary stamp – not required for
validity.
CASE: GUERRERO V. BIHIS
Facts: The will was acknowledged by the testatrix and the
witnesses at the testatrix’s witnesses in Quezon City before a
notary public who was commissioned for and in Caloocan
City. Is the will valid?
Held: NO. The notary public was acting outside the place of
his commission, and this did not satisfy Art 806. No notary
shall possess authority to do any notarial act beyond the
limits of his jurisdiction.9
Since the notary was not a commissioned notary public for
and in Quezon City, he lacked the authority to take the
acknowledgment of the testratix & the instrumental
witnesses. In the same vein, the testratix and the
instrumental witnesses could not have validly acknowledged
the will before him. Thus, Felisa Tamio de Buenaventura’s
last will and testament was, in effect, not acknowledged as
required by law.
Class Discussion
Q: An attested last will and testament contains no date of its
execution, although the notarial certification contains a date
of acknowledgment. Is it valid or not? Explain.
A: The will is valid. The law does not require an attested
will to contain a date of execution, unlike in the case of a
holographic will. Thus, such defect of no date written is not
fatal to the validity of the will.
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 2 persons to read it &
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 witnesses, &
 Again, by the notary public before whom the will is
acknowledged. (n)
Class Discussion
Q: What are the additional requisites of an attested will if the
testator is deaf and dumb?
A: If the testator is deaf and dumb, Art. 807 requires the
testator to personally read the will, if he is able to do so;
otherwise, 2 other persons must, in a practicable manner,
communicate the contents of the will to the testator.
Application of Art. 808
Art. 808 applies not only when a testator is blind per se, but
also when his vision has becomes so bad that he is not
capable of reading the will himself to check for conformity
with his instructions.
9
Sec. 240 of the notarial law provides: The jurisdiction of a notary public in a
province shall be co-extensive with the province. The jurisdiction of a notary
public in the City of Manila shall be co-extensive with said city. No notary
shall possess authority to do any notarial act beyond the limits of his
jurisdiction.
CASE: GARCIA V. VASQUEZ
Facts: Gliceria supposedly wrote out a will before she died
in the presence of attesting witnesses & assisted by Precilla.
Gliceria had apparently read the will before signing. But
factually, it was found by the doctor (who was presented as
witness) that Gliceria could not read with her eyes anymore,
& could only see forms (like the shapes of fingers); this was
true even if she could still perform tasks in the kitchen,
among others. Is the will she supposedly executed by just
reading valid, given the evidence?
Held: NO. For the purpose of the will, the Court considered
Gliceria blind & required compliance with Art. 808. 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. This insures that the will
is properly understood by the handicapped testator, making
it truly reflective of his desire. Thus, the will should be –
1. Read to the blind or illiterate testator
2. Not only once, but twice,
3. By two different persons, &
4. The witnesses have to act within the range of the
testator's other senses.
In this case, there is nothing to show that the above
requisites have been complied with. Also, there was
evidence that the will was hastily done (there were lots of
typos that the testator should have been alerted about when
she read the will, among others). Thus, the will cannot be
probated.
*Note: In the en banc decision of this case, SC remanded the
case to the trial court for a factual determination of
Gliceria’s blindness; but the doctrine remains the same.
Substantial Compliance with Arts. 807 & 808 Sufficient
The requirements in Arts. 807 & 808 are liberally construed
by the SC.
CASE: ALVARADO V. GAVIOLA, JR.
Facts: 79-year-old Brigido executed a notarial will where he
disinherited his illegitimate son (petitioner) & expressly
revoked a previously executed holographic will at the time
awaiting probate at RTC Laguna. As testified by the 3
instrumental witnesses, the notary public & by respondent
who were present at the execution, the testator did not read
the final draft of the will himself. Instead, respondent, as the
lawyer who drafted the document, read the same aloud in the
presence of the testator, the witnesses & the notary public.
The latter four followed the reading with their own
respective copies previously furnished them. Now, the
validity of this will is in dispute. It was factually determined
that Brigido could no longer read, but could still see forms.
Respondent argues that, given the facts, this should already
be considered substantial compliance, while petitioner
maintains that the only valid compliance is a strict
compliance & since it is admitted that neither the notary
public nor an instrumental witness read the contents of the
will to Brigido, probate of the latter’s will should have been
disallowed. Can the will be admitted to probate?
Held: YES. That Art. 808 was not followed strictly is
beyond cavil. Instead of the notary public & an instrumental
witness, it was the lawyer (respondent) who drafted the will
& who read the same aloud to the testator, and read them
only once, not twice as Art. 808 requires.
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But SC held that substantial compliance is acceptable where
the purpose of the law has been satisfied, as 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 & inflexible as to destroy the
testamentary privilege.
In the case at bar, respondent read the testator’s will aloud in
the presence of the testator, his instrumental witnesses, & the
notary public. Prior & subsequent thereto, the testator
affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing
& acknowledgment take place. There is no evidence that the
contents of the will & codicil were not sufficiently made
known to the testator.
Moreover, it was not only respondent who read the
documents. The notary public and the witnesses likewise
read the will, albeit silently. Afterwards, the notary public &
one of the instrumental witnesses (who was also the
testator’s physician) asked the testator whether the contents
of the documents were of his own free will. Brigido
answered in the affirmative. With 4 persons following the
reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what
was read to him were the terms actually appearing on the
typewritten documents. This is especially true considering
that the three instrumental witnesses were persons known to
the testator, one being his physician and another being
known to him since childhood.
The spirit behind the law was served though the letter was
not. Although there should be strict compliance with the
substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator’s will.
Lessons from Garcia & Alvarido
 Failure to comply with either Art. 807 or 808, when
necessary, would result in nullity & denial of
probate.
 The burden of proof is upon the proponent of the will
that the special requirements of Art. 807 or 808 were
complied with.
 There is no requirement that compliance with Art.
807 or 808 be stated either in the will or attestation
clause.
 Art. 808 applies also to illiterate testators.
Q: If an attested will is written in Braille and can be “read”
by a blind testator by touch, is it still required that the same
be read to him by a witness and the notary?
A: No, it is not requires that the will be read to the blind
testator by a witness and the notary. The purpose of the
testator to make sure that what is in the will is what he really
wills. The reason why there has to be 2 different persons
who will read it is to make sure what is read to the testator is
what is really written in the will. In this case, it can be said
that there is substantial compliance with the law since at the
end of the day, the purpose of the law was met. The testator
understood what is in the will since it was written in braille.
*Article 809. In the absence of bad faith, forgery, or fraud,
or undue and improper pressure and influence, defects &
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 Art. 805. (n)
Note on Art. 809
 This provision on substantial compliance pertains to
the attestation clause of an attested will.
 But SC has also used the standard of substantial
compliance in other Arts. (like Art. 808)
Rewording by Justice Reyes (because this provision is WAY
too liberal)
In the absence of bad faith, forgery, or fraud, or undue and
improper pressure and influence, defects & 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 byan examination of the will itself & it is
proved that the will was in fact executed & attested in
substantial compliance with all the requirements of Art. 805.
Illustrative 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. Other examples –
 Whether the pages are consecutively
numbered
 Whether the signature of all parties appear
at every page
 Whether there were 3 subscribing
witnesses
 Whether the will was notarized
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. Another example is the total number of
pages.
CASE: CANEDA V. CA
Facts: The oppositors of the will in this case asserted that the
will in question is void because its attestation clause is
fatally defective since it fails to specifically state that the
instrumental witnesses to the will witnessed the testator
signing the will in their presence and that they also signed
the will & all the pages thereof in the presence of the testator
& of one another. The will reads –
“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 3 pages, including the Acknowledgment,
each page numbered correlatively in letters on the upper
part of each page, as his Last Will and Testament and he
has signed the same and every 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
presence of each and all of us.”
Is the will void?
Held: YES. Attestation 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, subscription 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
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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.
What is fairly apparent upon a careful reading of the
attestation clause herein assailed is that while it recites that
the testator indeed signed the will & all its pages in the
presence of the 3 attesting witnesses & 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 & of each other. The absence of that statement
required by law is a fatal defect which must necessarily
result in the disallowance of the will that is sought to be
admitted to probate.
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. As such, in this case, there is no other way to
confirm whether or not the witnesses signed the attestation
clause in the presence of the testator & each other.
The rule on substantial compliance in Art. 809 cannot be
invoked by respondents since it presupposes that the defects
in the attestation clause can be cured or supplied by (1) the
text of the will or (2) a consideration of matters apparent
therefrom which would provide the data not expressed in the
attestation clause or from which it may necessarily be clearly
inferred that the acts not stated in the omitted textual
requirements were actually complied with in the execution
of the will.
An omission which can be supplied by an examination of the
will itself, without the need of resorting to extrinsic
evidence, will not be fatal and, correspondingly, would not
obstruct the allowance to probate of the will being assailed.
However, those omissions which cannot be supplied except
by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.
Interesting Takeaways from Ratio of Caneda
 In attested wills, the 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.
 The attesting witnesses also need not know the
language used in the attestation clause, so long as it
is interpreted for the witness.
 The attestation clause need not be signed by the
testator; only the attesting witnesses must sign.
 The execution of a will is supposed to be one act so
that where the testator & the witnesses sign on
various days or occasions and in various
combinations, the will cannot be stamped with the
imprimatur of effectivity.
CASE: AZULEA V. CA (2006)
Facts: The will failed to contain the total number of pages. Is
this defect fatal?
Held: YES. The failure of the attestation clause to state the
number of pages on which the will was written is a fatal
flaw, despite Art. 809. The purpose of requiring the clause to
state the number of pages was to safeguard against the
possible interpolation or omission of one or some of its
pages & to prevent any increase or decrease of the number
of pages. There is thus no substantial compliance.
CASE: LOPEZ V. LOPEZ (2012) attending the execution of the will, so that in case of
Facts: An 8-page will had an attestation clause which stated failure of the memory of the subscribing witnesses,
that the will “consists of 7 pages including the page on or other casualty, they may still be proved. A will,
which the ratification & acknowledgment are written.” Is therefore, should not be rejected where its attestation
this valid? clause serves the purpose of the law. Abada’s will
Held: NO. The will actually consists of 8 pages including its clearly shows 4 signatures: that of Abada and of 3
acknowledgment, which discrepancy cannot be explained by other persons. It is reasonable to conclude that there
mere examination of the will itself but through the are 3 witnesses to the will. The question on the
presentation of evidence aliunde. number of the witnesses is answered by an
examination of the will itself & without the need for
CASE: CELADA V. AVENA (2008) presentation of evidence aliunde.
Facts: The attestation clause mistakenly stated that the will 4. The last part of the attestation clause states "in its
had 3 pages, when it actually only had 2. Is this fatal? witness, every one of us also signed in our presence
Held: NO. The pagination in letters was a sufficient & of the testator." This clearly shows that the
safeguard of the will’s integrity. While it is true that the attesting witnesses witnessed the signing of the will
attestation clause is not a part of the will, the court, after of the testator, & that each witness signed the will in
examining the totality of the will, is of the considered the presence of one another and of the testator.
opinion that error in the number of pages of the will as stated Ultimately, the will is valid.
in the attestation clause is not material to invalidate the
subject will. It must be noted that the subject instrument is Q: Art. 809 pertains to the attestation clause. Will this apply
consecutively lettered with pages A, B, and C, which is a to the will itself?
sufficient safeguard from the possibility of an omission of A: Generally, no.
some of the pages. The error must have been brought about
by the honest belief that the will is the whole instrument Q: What if the number of pages is not stated in the
consisting of 3 pages inclusive of the attestation clause and attestation clause but it is stated in the will. Would it be
the acknowledgement. The position of the court is in valid?
consonance with the "doctrine of liberal interpretation" A: It is VALID.
enunciated in Article 809 of the Civil Code.
Balane: An omission of the total number of pages in the Q: What if instead of writing an attestation, the notary public
attestation clause should, pursuant this ruling, not be so fatal. wrote a jurat? Is that sufficient?
A: NOT SUFFICIENT.
CASE: TESTATE ESTATE OF THE LATE ALIPIO ABADA V.
ABAJA *Article 810. A person may execute a holographic will
Facts: Caponong-Noble alleges that Abada’s will should be which must be entirely written, dated, & signed by the hand
invalidated because – of the testator himself. It is subject to no other form, and
1. The attestation clause fails to state the number of may be made in or out of the Philippines, and need not be
pages on which the will is written. witnessed. (678, 688a)
2. The attestation clause fails to state expressly that the
testator signed the will & its every page in the Requisites under Art. 810
presence of 3 witnesses. The holographic will must be:
3. The attestation clause does not indicate the number 1. Completely written by the testator
of witnesses who signed. 2. Dated by him; &
4. Finally, Caponong-Noble alleges that the attestation 3. Signed by him.
clause does not expressly state the circumstances that
the witnesses witnessed and signed the will and all Advantages & Disadvantages
its pages in the presence of the testator and of each
other. 1. According to JBL Reyes
Is the will valid? Advantages (BISS) Disadvantages (FIT)
Held: The allegation has no merit. 1. Brevity 1. Forgery
1. The phrase in the left margin of each of the 2 pages 2. Inexpensiveness 2. Increased risk of duress
of the will shows that it consists of 2 pages. The 3. Simplicity 3. Difficulty of determining
pages are numbered correlatively with the letters 4. Secrecy Testamentary capacity
"ONE" and "TWO."
2. The first sentence of the attestation clause reads: 2. According to 2015 Quiz
"Subscribed by the testator Alipio Abada as his last Advantages Disadvantages
will in our presence, the testator having also signed it 1. The law requires a 1. A holographic will
in our presence on the left margin of each and every holographic will to be cannot be partly
one of the pages of the same." The attestation clause entirely written, signed and handwritten & typewritten;
clearly states that Abada signed the will and its every dated by the hand of the otherwise, it is void;
page in the presence of the witnesses. testator; 2. Each and every
3. The rule on substantial compliance in determining 2. It requires no other form disposition must be signed
the number of witnesses. While the attestation clause than that required by law; and dated, or if not all are
does not state the number of witnesses, a close 3. It may be executed inside dated, it is enough that the
inspection of the will shows that 3 witnesses signed and outside the Philippines; last disposition is dated;
it. An attestation clause is made for the purpose of 4. It does not require the 3. To prove its due
preserving, in permanent form, a record of the facts
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presence of instrumental execution, only one witness
witnesses; who knows the handwriting
5. It does not need to be and signature of the testator
acknowledged before a is required. If the will is
notary public; contested, three witnesses
6. Where the will is shall be required. If the
contested and the 3 three witnesses are
witnesses are required by unavailable, an expert
law cannot be complied witness may testify as to its
with, the court may order an authenticity, whenever the
expert witness to determine court deems it necessary; &
the authenticity of the 3. From a practical
handwriting and signature perspective, a holographic
of the testator. will may be unintelligible, if
the handwriting of the
testator cannot be
understood.
Validity Dependent on Handwriting
 Holographic wills are completely dependent on the
authenticity of the handwriting, as may be proven by
writing standards or by witnesses.
 The will could just say, “All to X.” with a date &
signature, and that will be considered valid already.
Completely Written by Testator
If it is partially written by him and partially not written by
him, it is VOID.
Signed by the Testator
Things implied:
 The signature should be at the end of the will.
 A thumb mark would not qualify as a signature, since
it must be signed “by the hand” of the testator.
Q: A holographic will is dated “Mother’s Day, 2014” in the
handwriting of the testator. Is it valid or not?
A: Yes, it is valid. Jurisprudence has recognized the validity
of holographic wills with dates such as “Christmas Day of
2015” and “New Year of 2015,” since these dates can easily
be ascertained by just looking at a calendar.
Q: A holographic will has five additional dispositions,
numbered 1 to 5, after the testator’s signature. Only no. 5 is
dated and signed by the testator. What is the effect?
A: The effect is that the first 4 additional dispositions are not
valid nor effectual. Only the 5th additional disposition is
valid, given that it complied with the twin requirements
prescribed by Art. 813 of dating and signing. Art. 813
provides that if additional dispositions are not dated, the last
additional disposition which is dated and signed shall have
the effect of making the undated additional dispositions valid
as to the date so provided. However, the curative effect of
Art. 813 does not apply in the instant case, because the
earlier additional dispositions were not only lacking a date,
but also a signature. Therefore, only the 5th additional
dispositions is valid.

Date Requirement Q: How do you prove a holographic will?

The general rule on the matter is that the date, month, and
year must be included. But SC has ruled otherwise.
CASE: ROXAS V. DE JESUS
Facts: The date written on the holographic will was
“FEB./61” without providing the day. Is this valid?
Held: YES. It was held that this was valid already, so long as
there is no appearance of fraud, bad faith, undue influence
and pressure, and the authenticity of the will is established.
Furthermore, a full date with month, year, & day is seen as
essential in a situation where there are two competing wills
& it is necessary to decide which is later in time. Where this
is not a problem, however, the will is valid.
*Note: Balane thinks this was too liberal.
Q: Tiburcio wrote a will dated “August 2016.” Is this a valid
will?
A: YES. The will is valid so long as the holographic will is
probated, & its authenticity is not contested. In Roxas v. De
Jesus, the testator wrote “Feb ‘61” as the date in his
holographic will, without writing the specific day on which
he signed it. Nevertheless, the will was probated.
A: According to the case of Casaula, the testimony of 1
witness is enough if not contested; if contested, there should
be 3. In another case, it said that even if it is contested, the
testimony of one will be sufficient. The reason is that what
the issue is in every probate is the handwriting of the
testator. If 1 witness can testify clearly and credibly that that
is the testator’s handwriting, that is enough.
Article 811. In the probate of a holographic will, it shall be
necessary that at least 1 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 3 of such witnesses
shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deem it necessary,
expert testimony may be resorted to. (619a)
Post Mortem Probates Only
This article refers only to post mortem probates. It the
testator himself initiates the probate, he will identify the
document himself.

CASE: LABRADOR V. CA Rules of Court – Proof of Handwriting

Facts: The holographic will contained a statement wherein
the testator said, “On this day on which we agreed to make
the partitioning… On the 17th day, in the year 1968.” The
document itself is not dated except for this statement within
the disposition. Is this already compliant with the date
requirement?
Held: YES. 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. The will is valid.
The Rules state that the genuineness of handwriting may be
proved by the ff.: (SOCE)
1. A witness who actually Saw the person writing the
instrument;
2. A witness familiar with his handwriting and who can
give his Opinion thereon, such opinion being an
exception to the opinion rule;
3. A Comparison by the court of the questioned
handwriting and admitted genuine specimen thereof;
and
4. Expert evidence.

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Three-Witness Provision
This is only directory; it is not mandatory.
CASE: AZAOLA V. SINGSON
Facts: In the case, the decedent Yance died & left a
holographic will. The witness, Azaola, was able to confirm
the will’s authenticity. The oppositors protested that the will
should be invalidated because only 1 witness confirmed
Yance’s handwriting, and because the will was made under
duress; as such, Yance did not intend the will to be her last
will and testament. Is the oppositor correct?
Held: NO. Where the authenticity of the will is not
contested, one is not required to produce more than one
witness, especially since no witness may have been present
at the execution of a holographic will, none being required
by law.
As to requiring expert testimony, 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 unnecessary to call for
expert evidence. On the other hand, if no competent witness
is available, or none of those produced is convincing, the
Court may still, and in fact it should, resort to handwriting
experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the State is as much interested
as the proponent that the true intention of the testator be
carried into effect.
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.
Thus, the rule of the 1st par. of Art. 811 is merely directory
and is not mandatory.
CASE: CODOY V. CALUGAY
Facts: 6 witnesses were presented to authenticate the
holographic will of the decedent, as there was a contention
as to the authenticity of the will. One of them was the clerk
of court, who produced the documents with the decedent’s
handwriting to compare with the will. The other was the
election registrar, who had seen the decedent’s voter’s
affidavit. The niece was also presented, and she said that she
had, for the 11 years of her close proximity with the
decedent, become familiar with the latter’s handwriting.
Essentially, the other witnesses became familiar with the
testator’s handwriting through various means, but said the
same thing. The issue was whether or not 3 witnesses were
in fact necessary to authenticate the decedent’s holographic
will.
Held: YES. The 3 witness rule is mandatory. It will be noted
that not all the witnesses presented testified explicitly that
they were familiar with the handwriting of the testator. Some
of them, like the election registrar, were presented just to
identify the signature but did not declare they were familiar
with the decedent’s handwriting or explicitly state that the
signature was the decedent’s.
Meanwhile, for the niece, she may have seen the
handwriting of the decedent, but she did not declare that she
actually saw the decease sign a document or write a note.
She merely stated that it was similar to the signatures of her
aunt as she saw it before.
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ALSO, a visual examination of the holographic will
convinced SC 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.
Balane: The Codoy ruling does not reverse Azaola –
1. Codoy was not based on there being less than 3
witnesses (in fact, there were 6);
2. The will was denied because the testimonies of the
witnesses were found to be indecisive;
3. The visual examination by SC seemed to reveal that
the will was not authentic;
4. The decisive factor in the case was not the quantity
of the witnesses, but the quality.
Document Itself Must be Produced in Probate
A lost holographic will cannot be probated.
CASE: GAN V. YAP
Facts: The decedent supposedly executed a will, but it was
allegedly lost. Apparently, she was afraid of her husband
ever finding out that she made one because her husband had
a terrible temper, so she let her first cousin, Felina, look over
her as she was writing it, and then let Felina read it several
times again, sometimes alone, sometimes in the presence of
others. When the decedent was dying in the hospital, she
apparently left the will in her purse and told Felina to keep
the purse, but the decedent’s ill-tempered husband asked for
it. Felina went to the toilet, hid there, and read the will over
and over to make sure the contents were intact in her
memory. Thus, Felina claimed that her testimony, and that of
other witnesses, should be enough to validate the existence
of the holographic will. Is she correct?
Held: NO. In holographic wills, the law regards the
document itself as material proof of authenticity, and as its
own safeguard, since it could at any time, be demonstrated to
be—or not to be—in the hands of the testator himself. Thus,
where the document itself is not presented, there is no way
for the court, or witnesses, or an expert to validate its
authenticity. 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.
Also: In a decision, the SC of Spain denied probate to a
document containing testamentary dispositions in the
handwriting of the deceased, but apparently mutilated, the
signature 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 opponents 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 effect.
CASE: RODELAS V. ARANZA
Facts: The original holographic will was lost, but there was a
photocopy available.
Held: SC accepted the photocopy version of the will, since
comparisons can be made with the standard writings of the
testator. In Gan v. Yap, footnote 8 even said “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.”
Q: Pedro wrote a holographic will. He had 2 friends sign as
witnesses. Is the will valid?
A: Yes. Art. 810 provides that a person may execute a
holographic will which must be wholly written, dated &
signed by the hand of the testator himself. Such will is
subject to no other formal requirements & requires no
witnesses. In this case, the fact that 2 friends of Pedro’s
signed his will is irrelevant to the holographic will’s validity
– to have done more than what the law requires for formal
validity should not invalidate a holographic will.
Q: Jose made a holographic will, partly in blue ink & partly
in black. Is the will valid?
A: Yes. Art. 810 provides that a person may execute a
holographic will which must be wholly written, dated &
signed by the testator himself. No other formal requirement
is provided. Thus, though the ink is half blue, half black, the
will remains valid.
Q: Manuela wrote a handwritten will in block letters so that
it is legible. This, however, is not her usual style of writing,
which is like a doctor’s prescription. Is the will valid?
A: No. The will is not valid, because witnesses subsequently
would not be able to identify that such is the testator’s
handwriting. Holographic wills are completely dependent on
the authenticity of the handwriting, as may be proven by
writing standards or by witnesses. Because Manuela
completely altered her style of writing, witnesses would not
be able to prove she wrote it. This would invalidate the will.
Q: Antonio died, leaving behind a holographic will. How
many witnesses should be presented at probate if his will is
(a) opposed & (b) not opposed?
A: If the will is contested, only 1 witness is required to
confirm that the handwriting of the testator matches the
holographic will. Where the will is opposed, 3 witnesses
familiar with his handwriting must confirm authenticity.
Article 812. In holographic wills, the dispositions of the
testator written below his signature must be dated & signed
by him in order to make them valid as testamentary
dispositions. (n)
Article 813. When a number of dispositions appearing in a
holographic will are signed without being dated, & the last
disposition has a signature & a date, such date validates the
dispositions preceding it, whatever be the time of prior
dispositions. (n)
Rules: Additional Dispositions in Holographic Wills
If there are several additional dispositions:
 There should be a signature & date after each
additional disposition;
 Each additional disposition which is SIGNED but not
dated is valid IF the last disposition is signed &
dated;
 IF there are several additional dispositions, but the
additional ones before the last are DATED but not
signed, only the last will be valid, provided the last is
signed & dated.
 IF there are several additional dispositions and the
additional ones before the last are NEITHER signed
nor dated, but the last is both signed and dated...
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o If they were made on one occasion only, ALL
are VALID.
o If they were made on different occasions, the
intermediate additions without dates or
signatures would be VOID.
o This entire thing is theoretical rather than
practical, though.
Q: In a holographic will, 10 dispositions appear after the
signature of the testator. The first 9 are dated, but not signed.
The 10th is dated & signed. What is the validity of the 10
dispositions?
A: Only the 10th disposition is valid. The civil Code states
that each designation following the signature of the testator
must be dated & signed. But Art. 813 provides a curing
effect wherein, if a series of dispositions are signed but not
dated, the very last one is both dated & signed, all
dispositions previous to such signed & dated disposition are
validated. In this case, however, the dispositions previous to
the 10th are dated, but not signed. Since it is the signature,
not the date, which is required for the validation of
subsequent dispositions, the 1st 9 dispositions cannot be
cured by the 10th. The 10th, being both dated & signed, is
valid.
Q: If the 1st disposition is dated & signed & the succeeding 9
are signed, but not dated, would your answer be the same?
A: Only the 1st disposition is valid. The Civil Code provides
a curing effect where the last disposition, when dated &
signed, may cure previous dispositions which are only
signed but not dated. In this case, however, it is the 1 st
disposition that is dated & signed, not the last. Thus, the 1 st
disposition cannot cure the subsequent dispositions.
Article 814. In case of any Insertion, Cancellation, Erasure
or Alteration (ICEA) in a holographic will, the testator must
authenticate the same by his full signature. (n)
Notes on Art. 814
 Full signature does not necessarily mean the
testator’s full name; it could just be his initials.
 GR: If this is not complied with, the change is simply
considered not made. The will is not thereby
invalidated as a whole.
o EXC: If the portion involved is an essential
part of the will, such as the date, it’s VOID.
CASE: KALAW V. RELOVA
Facts: Natividad died but executed a holographic will. The
original version stated Rosa would be her sole heir &
executrix. However, Gregorio had a copy of the will where
Rosa’s name was crossed out as sole heir & then as
executrix, replaced by Gregorio’s name. The sole heir part
was not
ed, but the executrix part was initialed. Rosa wanted the
original, unaltered text to be admitted into probate. Is this
allowed?
Held: NO. Ordinarily, when a number of erasures,
corrections, and interlineations made by the testator in a
holographic is not noted under his signature, the will is not
thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected, or interlined.
HOWEVER, when as in this case, the holographic will in
dispute had only one substantial provision, which was
altered by substituting the original heir with another, but
which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect
must be that the entire will is voided or revoked for the
simple reason that nothing remains in the will after that
which could remain valid. To state that the will as first
written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can
neither be given effect because she failed to authenticate it in
the manner required by law by affixing her full signature. In
such a case, the essence of the will itself is affected, and the
real intention of the testatrix cannot be determined with real
certitude.
Balane: Why didn’t SC give effect to the original text,
without the cancellations? The cancellation was not done in
the way mandated by the Article. It would have been more
interesting to use Art. 830 in this case, as that provision
allows cancellation, and to see if it applies to a holographic
will.
CASE: AJERO V. CA
Facts: Annie Sand died after having made a holographic
will. Spouses Ajero instituted special proceedings for the
allowance of Annie’s will into probate. However, there was
opposition on the part of some heirs, as the will had some
erasures & alterations which were not authenticated by the
decedent. Also, some dispositions were signed but undated,
while others were unsigned & undated. Is this enough to
invalidate the will in its entirety?
Held: NO. The requirements in Art. 813 affect only the
validity of the dispositions contained in the holographic will,
but not its probate. If the testator fails to sign and date some
of the dispositions, the result is that these dispositions cannot
be effectuated. Such failure, however, does not render the
whole testament void. Likewise, a holographic will can still
be admitted to probate, notwithstanding non-compliance
with the provisions of Art. 814.  Consolidated Rules for All Types10
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or
on testator's signature, their presence does not invalidate the
will itself. The lack of authentication will only result in
disallowance of such changes.
Q: In the holographic will, the testator’s sole disposition
bequeaths a house in Baguio to the testator’s cousin, Bill.
Subsequently, the word “house” is cancelled & the word
“horse” is written above it in the testator’s handwriting. But
the alteration is not authenticated by the testator’s signature.
Should the will be given effect or not?
A: It should not; the will is void. Any alteration, erasure, or
inclusion to a holographic will must be signed by the
testator; otherwise, such alteration, erasure, or inclusion is
void. Furthermore, jurisprudence provides that when a
particular alteration, exclusion or erasure affects the very
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essence of the will, rather than only 1 disposition, the entire
will is void & not just the affected provision. In this case, the
sole disposition is altered in a way that it cannot be
determined what the testator truly intended – that one & only
disposition technically affected the entirety of the will. As
such, the will is now void.
Article 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by
the law of the country in which he may be. Such will may be
probated in the Philippines. (n)
Article 816. The will of an alien who is abroad produces
effect in the Philippines if –
 Made with the formalities prescribed by the law
of the place in which he resides, or
 According to the formalities observed in his
country, or
 In conformity with those which this Code
prescribes. (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 & allowed by the law
of his own country, shall have the same effect as if executed
according to the laws of the Philippines. (n)
Applicability of Rules of Formal Validity
This rule applies to:
1. A Filipino abroad
2. An alien abroad
3. An alien in the Philippines
All testators, whether Filipino or alien, wherever situated,
has 5 options:
1. The law of his citizenship
2. The law of the place of execution
3. The law of his domicile
4. The law of his residence
5. Philippine law
Q: A will is attested to by only two witnesses, but the law of
Dubai (where it was executed) requires only one witness to
attest to a will. Can the will be probated in the Philippines?
A: Yes, the will can be probated in the Philippines. The law
governing the extrinsic validity of a will may be that law
governing the place of execution. The will subject of the
case at bar, being attested to by 2 witnesses, complies with
the law of Dubai – the place of execution. Thus, the will may
be probated here.
10
Also take into consideration Art. 15 and 17 of the Civil Code:
Article 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad. (9a)
Article 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 determinations
or conventions agreed upon in a foreign country. (11a)
Q: A Filipino & his wife wrote a joint will in Canada while
they were both naturalized Canadian citizens. Such will is
allowed by the laws of Canada. 5 years later, they reacquired
their Filipino citizenship by taking an oath of allegiance to
the Philippines. One month later, they both died in a car
accident. Can their joint wills be probated in the Philippines?
A: YES. The formal validity of the will is determined by the
time of its execution. When the will in this case, the Filipino
& his wife were naturalized Canadian citizens, & thus were
allowed under Art. 817 to draw out their will in accordance
with the laws of Canada.
Article 818. Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person. (669)
Joint Wills Prohibited
 What is not allowed is ONE DOCUMENT which
constitutes the wills of 2 or more individuals.
 If there are separate documents, each serving one
independent will (even if written on the same sheet),
they are NOT joint wills prohibited in this Article.
Reasons for Prohibiting Joint Wills
(SUKR – SUCKER!)
1. The diminution of testamentary Secrecy
2. The danger of Undue influence
3. The danger one testator Killing another
4. Limitations on modes of Revocation
Q: A man & his wife wrote separate holographic wills on the
two sides of a single sheet of paper. Are the 2 wills joint
wills?
A: NO. This is not considered a joint will. A joint will is one
where the wills of the 2 testators are contained in a single
document, where both their dispositions are jointly discussed
& dealt with. In this case, however, the man wrote his will
on one side, & his wife on the other, making them, in
essence, two separate wills contained in one sheet of paper.
Thus, the will is not really joint.
Article 819. Wills, prohibited by the preceding article,
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)
Outline on Joint Wills
Executed By Status
Filipinos in the Philippines Void
Filipinos abroad Void
Aliens abroad Art. 816; may be made in
accordance with the law
of his country or where
he resides
Aliens in the Philippines Conflicting views; some
say void, some say Art.
817, which means it can
be made in accordance
with the law of his
country
A Filipino and an alien Void as to Filipino; as to
the alien, depends if he’s
abroad or in the country
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Article 819. Wills, prohibited by the preceding article,
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)
SUBSECTION 4. - Witnesses to Wills
Article 820. Any person of sound mind & of the age of 18
years or more, & not blind, deaf or dumb, and able to read
& write, may be a witness to the execution of a will
mentioned in Art. 805 of this Code. (n)
Article 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of –
 Falsification of a document,
 Perjury or
 False testimony. (n)
Requisites for a Witness to a Will
1. Must be of sound mind
2. Must be 18 years old & above
3. Must be able to read & write
4. Must not be dumb, deaf or blind
5. Must be domiciled in the Philippines
6. Must not be convicted of falsification of public
document & perjury
Q: Why can’t he be dumb?
A: Because it would be difficult for him to testify.
Competence v. Credibility
CASE: GONZALES V. CA
Facts: Gabriel, decedent, died without issue. She executed a
typewritten will, witnessed by Matilde, Celso & Maria,
which named Lutgarda, her niece, as her universal heir.
Rizalina, Gabriel’s other niece, opposed. She contested the
probate of the will as there was no proof that the 3
instrumental witnesses were “credible” witnesses. She
claimed that this is an absolute requirement which must be
complied with before an alleged last will may be admitted to
probate & that to be a credible witness, there must be
evidence on record that the witness has a good standing in
his community, or that he is honest and upright, or reputed to
be trustworthy and reliable. She contended that the term
“credible" is not synonymous with “competent” for a
witness may be competent under Art. 820 & 821 & still not
be credible as required by Art. 805. Is Rizalina’s contention
correct?
Held: NO. Under the law, there is no mandatory requirement
that the witness testify initially or at any time during the trial
as to his good standing in the community, his reputation for
trustworthiness, his honesty & uprightness in order that his
testimony may be believed & accepted by the trial court. It is
enough that the qualifications enumerated in Art. 820 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 is shown from his
appearance, testimony, as well as the fact that he is not blind,
deaf, dumb & that he is able to read & write, & that he has
none of the disqualifications.
1. Unlike in a naturalization proceeding, which requires
character witnesses, in probate proceedings, the
 instrumental witnesses are not character witnesses for
they merely attest the execution of a will & affirm
the formalities attendant to said execution.
2. The competency of a person to be an instrumental
witness to a will is determined by the statute (Arts.
820 & 821), whereas his credibility depends on the
appreciation of his testimony & arises from the
conclusion of the Court that said witness is telling the
truth. Thus, in Vda. de Arroyo v. El Bealerio del
Santtssimo Rosario de Molo, SC held: “Competency
as a witness is one thing, & 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 or
not to believe his testimony.”
3. The instrumental witnesses, to be competent, must be
shown to have the qualifications under the law. For
their testimony to be credible, that is, worthy of
belief & entitled to credence, it is not mandatory that
evidence be first established on record that the
witnesses have a good standing in the community or
that they are honest & upright or reputed to be
trustworthy, for a person is presumed to be such
unless the contrary is established otherwise. In other
words, the instrumental witnesses must be competent
& their testimonies must be credible before the court
allows the probate of the will they have attested.
Article 822. If the witnesses attesting the execution of a
will are competent at the time of attesting, their becoming
subsequently incompetent shall not prevent the allowance
of the will. (n)
Competence of Witnesses – as of Time of Attesting
Just like in testamentary capacity, witnesses need to be
competent only at the time of the execution of the will.
CASE: UNSON V. ABELLA
Facts: Only the two witnesses, Gonzalo & Eugenio, testified
as to the authenticity of the will. The 3 rd witness, Pedro, was
not presented because he was hostile with Unson, supposed
heir, & has been meeting with the oppositors since the filing
of the petition for the probate of the will of Josefa. Is this
will valid despite the failure to present all 3 witnesses?
Held: YES. If opposition is presented to the probate of a
will, the general rule is that all the attesting witnesses must
be produced. Exceptions – when one of the witnesses is:
 Dead
 Cannot be served with process of the court
 His reputation for truth is questioned or
 He appears to be hostile to the cause of the parties
seeking the probate of the will.
In such cases the will may be admitted to probate, if upon
the evidence actually introduced, the court is satisfied of the
due execution of the will, inasmuch as even if said witness
had been produced & had testified against the application,
the result would not have been changed, if the court was
satisfied upon the evidence adduced that the will has been
executed in the manner prescribed by the law.
Article 823. If a person attests the execution of a will, to
whom or to whose spouse, or parent, or child, a devise or
legacy is given by such will, such devise or legacy shall, so
far only as concerns such person, or spouse, or parent, or
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child of such person, or any one claiming under such
person or spouse, or parent, or child, be void, unless there
are 3 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)
Witness Cannot Succeed if There are Only 3
 A witness cannot succeed to a legacy or devise when
there are only 3 witnesses.
 BUT: The competence of the person as a witness is
not affected.
o Assuming all other formal requisites are
present, therefore, the will is valid but the
witness (or the relatives specified in this
article) cannot inherit.
Application of Article Not Limited to Devisees/Legatees
 The disqualification in Art. 823 extends to heirs,
devisees, & legatees
 All testamentary institutions are covered
 BUT: if the witness or the specified relative involved
is also entitled to a legitime or an intestate share, that
portion is not affected by the party’s witnessing the
will.
Illustrative Scenario
X executes an attested will, witnessed by 3 instrumental
witnesses, A, B, & C. B is X’s son. One of the provisions of
the will is a legacy of P10,000 to B.
 The legacy is void.
 BUT B’s legitime is unaffected.
Q: What if the testator says, “I appoint Mr. Juan dela Cruz as
my sole heir.” Is that OK?
A: It’s OK if there are 3 other witnesses. IF NOT, then that
is no longer allowed.
Q: What if there are 4 witnesses, and 2 of them are given
legacies. Is that OK?
A: It’s OK because as to each one of them there are still 3
other witnesses unless the others are also either spouses,
witnesses or children.
Article 824. A mere charge on the estate of the testator for
the payment of debts due at the time of the testator's death
does not prevent his creditors from being competent
witnesses to his will. (n)
Why?
A charge is not a testamentary disposition.
SUBSECTION 5.
Codicils & Incorporation by Reference
Article 825. A codicil is –
 A supplement or addition to a will,
 Made after the execution of a will & annexed to be
taken as a part thereof,
 By which disposition made in the original will is
explained, added to, or altered. (n)
Article 826. In order that a codicil may be effective, it shall
be executed as in the case of a will. (n)
 SUBSECTION 6.
Codicil v. Subsequent Will Revocation of Wills and Testamentary Dispositions
Codicil Will
Explains, adds to, or alters a Makes independent & Article 828. A will may be revoked by the testator at any
disposition in a prior will distinct dispositions time before his death. Any waiver or restriction of this right
*Note: The distinction is purely academic, since a codicil is void. (737a)
has to follow the formalities of a will anyway.
Essential Revocability of Wills
Must the Codicil Conform to the Form of the Will to Which it Wills are essentially revocable or ambulatory.
Refers?  This characteristic cannot be waived by the testator.
No. The law does not require this.  It is revocable at the testator’s pleasure during his
 Ex. an attested will may have a holographic codicil. lifetime.
 This is consistent with the fact that successional
Q: Must a codicil be probated? rights vest only upon the testator’s death.
A: Yes.
Article 829. A revocation done outside the Philippines, by
Q: Pedro executed a will instituting Pablo as sole heir of his a person who does not have his domicile in this country, is
estate worth P5 million. Afterwards, he executed a codicil valid when it is done –
giving a legacy of P1 million to his church. Is his will  According to the law of the place where the will
deemed revoked? was made, or
A1: No. A codicil can only explain or alter dispositions  According to the law of the place in which the
made in the original will. It cannot contain new testamentary testator had his domicile at the time;
dispositions. Insofar as the subject codicil provided for a And if the revocation takes place in this country, when it is
legacy to the church of P1 million, the same is void. Thus, in accordance with the provisions of this Code. (n)
the original will remains substantively intact and, as such, as
is not revoked. Rules for Revocation
A2: No, the whole will is not deemed revoked. The law Where Revocation Made Law to Follow
states than an implied revocation shall only affect those parts Philippines Philippine law
of the original will that are inconsistent with or contrary to Outside the Philippines If the testator is not domiciled
its provisions. in the Philippines
 Follow the law of the
Article 827. If a will, executed as required by this Code, place where the will was
incorporates into itself by reference any document or paper, made, OR
such document or paper shall not be considered a part of  Follow the law of the
the will unless the following requisites are present: place where the testator
(EDI-PS) was domiciled at the time
(1) The document or paper referred to in the will must of revocation.
be in Existence at the time of the execution of the
will;
(2) The will must clearly Describe & Identify the same, If the testator is domiciled in
stating among other things the number of pages the Philippines (not governed
thereof; by Art. 829)
(3) It must be identified by clear & satisfactory Proof as  Follow Philippine law
the document or paper referred to therein; & (domiciliary principle),
(4) It must be Signed by the testator & the witnesses on OR
each & every page, except in case of voluminous  Follow the law of the
books of account or inventories. (n) place of revocation (lex
loci celebrationis), OR
Documents Pertained To  Follow the law of the
This article can refer only to documents such as inventories, place where the will was
books of accounts, documents of title, & papers of similar made.
nature. *Note how the nationality theory is abandoned in favor of
 The document should NOT make testamentary the domiciliary theory in this situation.
dispositions, for then the formal requirements for
wills would be circumvented. *Article 830. No will shall be revoked except in the ff.
cases:
Can Holographic Wills Incorporate Documents by (1) By implication of law; or
Reference? (2) By some will, codicil, or other writing executed as
No. Art. 824 requires the signatures of the testator & the provided in case of wills; or
witnesses on every page of the incorporated document (3) By burning, tearing, cancelling, or obliterating the will
(except voluminous annexes). with the intention of revoking it, (1) by the testator himself,
 It thus seems that only attested wills are witnessed. or (2) by some other person in his presence, & by his
 UNLESS: a testator has his holographic will express direction.
witnessed for the heck of it.  If burned, torn, cancelled, or obliterated by some
other person, without the express direction of the

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 testator, the will may still be established, & the
estate distributed in accordance therewith, if:
o Its contents, &
o Due execution, &
o The fact of its unauthorized destruction,
cancellation, or obliteration
are established according to the Rules of Court. (n)
Modes of Revoking a Will Under Philippine Law
1. By operation of law
 May be total or partial
 Examples --
(1) Preterition
(2) Legal separation
(3) Unworthiness to succeed
(4) Transformation, alienation, or loss of the
object devised or bequeathed
(5) Judicial demand of a credit given as a
legacy
2. By a subsequent will or codicil
 Requisites
(1) The subsequent instrument must comply
with the formal requirements of a will;
(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
(revocation may be express or implied).
 The will must eventually be probated.
3. By physical destruction
 4 Ways of Destroying
(1) Burning
(2) Tearing
(3) Cancelling
(4) Obliterating
 Physical destruction may be done personally by
the testator or by another person acting on his
behalf & by his express direction.
 Effect of unauthorized destruction – the will may
still be proved as lost or destroyed
o HOWEVER: This is only possible with
attested wills
 If the will is holographic, it cannot
be probated if it is lost, even if the
loss or destruction was
unauthorized, UNLESS a copy
survives.
 Elements of Revocation by Physical Destruction
(1) Corpus – the physical destruction itself;
there must be evidence thereof
(2) Animus – there must be:
a. Capacity & intent to revoke
b. The testator must have completed
everything he intended to do
CASE: TESTATE ESTATE OF ADRIANA MALOTO V. CA
Facts: Adriana died. There is an issue as to whether or not
she had revoked a will. The will was burnt by her maid in
the presence of 2 witnesses, but Adriana was not in the room
when it happened. Meanwhile, it was discovered that there
was a copy of the will with Adriana’s lawyer. Based on this
evidence, is the will considered revoked?
Held: NO. The physical act of destruction of a will, like
burning in this case, does not per se constitute an effective
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revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that
the physical destruction be done by the testator himself. It
may be performed by another person but under the express
direction & 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 intention to
revoke, may be conceded, for that is a state of mind, yet that
requisite alone would not suffice. “Animus revocandi” is
only one of the necessary elements for the effective
revocation of a will. The intention to revoke must be
accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator
or by another person in his presence & under his express
direction. There is paucity of evidence to show compliance
with these requirements. For one, the document or papers
burned by Adriana’s maid was not satisfactorily established
to be a will at all, much less the will of Adriana. For another,
there is no proof that the burning was done under the express
direction of Adriana. And then, the burning was not in her
presence. Both witnesses 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.
Loss or Unavailability of a Will
The loss or unavailability of a will may, under certain
circumstances, give rise to the presumption that it had been
revoked by physical destruction.
CASE: GAGO V. MAMUYAC
Facts: Miguel died. A carbon copy of a will was presented,
but it was contested that this was already cancelled by
Miguel. According to some witnesses, Miguel had executed
a will while he was alive. But according to Carlos, Miguel
had assured him that the will was cancelled, & the house
which was disposed of in that will was safe to sell. Another
testator said that the will was actually last seen with Miguel
himself. Now, a copy of the will could not be found. Is the
will considered revoked?
Held: YES. The law does not require any evidence of the
revocation or cancellation of a will to be preserved. The fact
that such cancellation has taken place must either remain
unproved or be inferred from evidence showing that, after
due search, the original will could not be found. Where a
will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is,
in the absence of other competent evidence, that the same
was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the
will & it cannot be found after his death. It will not be
presumed that such will has been destroyed by any other
person without the knowledge or authority of the testator.
The force of the presumption of cancellation or revocation
by the testator, while varying greatly, being weak or strong
according to the circumstances, is never conclusive, but may
be overcome by proof that the will was not destroyed by the
testator with intent to revoke it.
In view of the fact that the original will could not be found
after the death of the testator Miguel & in view of the
positive proof that the same had been cancelled, the will is
deemed revoked. 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
execution by the proponents, the burden is on the contestant
to show that it has been revoked. In this case, however, there
was positive proof of revocation.
Q: X got mad and began to burn his will. However, he
changed his mind and pulled it back so it was only partially
burnt but only at the tips. Is this considered a valid will still?
A: Technically, yes it is possible.
Q: X quarreled with his wife, Y. So X throws the will
making his wife his universal heir into the trash. The next
day however X & Y are reconciled. If the act of tearing,
burning, etc. is not complete, can there be revocation?
A: Destruction must be COMPLETE.
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)
Kinds of Revocation
 Express – through a revocatory clause
 Implied – through incompatibility
Effect of Subsequent Will Under New Civil Code
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 inoperative
by reason of the incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation. (740a)
Efficacy of the Revocatory Clause
The efficacy of the revocatory clause does not depend on the
testamentary dispositions of the revoking will.
 GR: Revocation is an absolute provision,
independent of the acceptance or capacity of the new
heirs
 EXC: When the testator so provides
Illustrative Scenario
X executes a will, naming A as his universal heir. Two years
later, X executes a second will revoking the first & naming
B as his universal heir. X then dies & B renounces the
inheritance.
 Despite B’s renunciation, the first will remains
revoked.
Dependent Relative Revocation
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.
 Where the act of destruction 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 efficacy of the new
disposition intended to be substituted, the revocation
will be conditional & dependent upon the efficacy of
the new disposition; & if, for any reason, the new
will intended to be made as a substitute is
inoperative, the revocation fails & the original will
remains In full force.
 The failure of the new testamentary disposition, upon
whose validity the revocation depends, is equivalent
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to the non-fulfillment of a suspensive condition, and
hence prevents the revocation of the original will.
o BUT: A mere intent to make at some time a
will in place of that destroyed will not render
the destruction conditional. It must appear
that the revocation is dependent upon the
valid execution of a new will.
 THUS, this applies ONLY when it appears that the
testator intended his act of revocation to be
conditioned on the making of a new will or on its
validity.
Institution of Heirs, Legatees, or Devisees in the Subsequent
Will Subject to a Suspensive Condition
 Whether or not the revocation of the prior will is
absolute or conditional depends always on the
testator’s intent.
o If the subsequent will contains a revocatory
clause which is absolute or unconditional, the
revocation will be absolute, & the non-
happening of the suspensive condition will be
immaterial.
o BUT: If 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 & the prior
institution will be efficacious.
 This is in accord with the juridical
nature of suspensive conditions, & is
an instance of dependent relative
revocation.
Dependent Relative Revocation in relation to Revocation by
Physical Destruction
In Molo v. Molo, the physical destruction of the will did not
revoke it, on the inference, drawn by the Court, that the
testator meant the revocation to depend on the validity of a
new one.
CASE: MOLO V. MOLO
Facts: Mariano left 2 wills, one made in 1918 & another in
1939. The latter will contains a clause expressly revoking the
1919 will. The probate court denied admission to the 1939
will for failure to comply with legal requisites for validity.
As such, Mariano’s wife attempted to get the 1919 will
probated. Only a photocopied version of the 1919 will was
presented; it was a duplicate he gave to his wife. Can the
1919 will be admitted to probate?
Held: YES. A subsequent will, containing a clause revoking
a previous will, having been disallowed, for the reason that it
was not executed in conformity with the provisions of Sec.
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 revocatory clause is void.
Additionally, however, it is the contention of oppositors that
the fact that there is a 1939 will shows an intent on the part
of Mariano to revoke the 1919 will. But there is no direct
evidence of voluntary or deliberate destruction of the 1 st will
by the testator. Also, it is assumed that the testator may have
thought that the revocatory clause in the subsequent will was
valid & the latter would be given effect. In such a case, the
1918 will could be considered valid under the principle of
“dependent relative revocation.” Thus, even in the
supposition that the destruction of the original will by the
testator could be presumed from the failure of Mariano’s
wife to produce the original 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 intestate. And this
intention is clearly manifest when he executed two wills on
two different occasions & instituted his wife as his universal
heir. There can therefore be no mistake as to his intention of
dying testate.
CASE: DIAZ V. DE LEON
Facts: There were 2 wills. The 2 nd will, based on the
evidence, did not have all the necessary requisites to
constitute a sufficient revocation. Also, after the execution of
the 1st will, the testator asked that the 1st will be returned to
him. The testator then ordered his servant to tear the
document in his presence, before a nurse who testified to this
effect. Is the 1st will revoked despite the insufficiency of the
revocation in the 2nd will?
Held: YES. The intention of revoking the will is manifest
from the established fact that the testator was anxious to
withdraw the provisions he had made in his 1st will. This fact
is disclosed by the testator’s own statements to the witnesses
where he was confined. The original will herein presented
for probate having been destroyed with animo revocandi,
cannot now be probated.
Rule if Implied Revocation
The rule in Art. 832 applies even if the revocation of the
prior will by the subsequent will is implied (e.g., by
incompatibility of provisions, not by a revocatory clause).
Q: There is Will 1 and Will 2. For Will 2, it is valid but the
heirs renounced. Is Will 2 considered void?
A: No, Will 2 is considered valid still and Will 1 will NOT
be revived. This is why the renunciations will remain,
because the 2nd will is considered still valid.
Q: There is Will 1 and Will 2. Will 2 is defective because
there is a failure to follow the requisites in the law. Which
will is considered the valid will?
A: The valid will is Will 1 because the second will is
deemed never to have been made.
Q: What is meant by the doctrine of dependent relative
revocation?
A: The doctrine of dependent relative revocation provides
that when the revocation of the previous will is dependent of
the effectivity of the subsequent will, the previous will is not
invalidated when the subsequent will is invalidated. In this
case, the previous will is the one that will be controlling.
Q: Since there is already probate, is revocation no longer
allowed?
A: This does not follow, the testator who files for probate
ante mortem may still revoke his will & just have another
probate if he wishes.
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Article 833. A revocation of a will based on a false cause
or an illegal cause is null and void. (n)
Revocable Ad Nutum
As a general rule, wills are revocable at the testator’s
pleasure.
Requisites for the Application of Art. 833
(1) The cause must be concrete, factual & not purely
subjective
 Ex. If the testator wants to revoke because he
discovered that the heir was Ilocano & to
him, all Ilocanos are bad, the revocation is
valid; the ground is purely subjective & thus
the will cannot be revoked under this Art.
(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
revoking because of the cause which he did not know
was false.
Physical Destruction of a Probate Will
If the revocation is by physical destruction, & the revoked
will is holographic, then though the revocation is void,
probate will not be possible.
Revocation for Illegal Cause
The illegal cause must be stated in the will as the cause of
the revocation for the revocation to be void.
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)
Recognition of an Illegitimate Child
Recognition is an irrevocable act; the recognition of an
illegitimate child is not revocable.
Related Family Code Provisions
Admission of illegitimate filiation in a will constitutes proof
of illegitimate filiation.
 Illegitimate children may establish their illegitimate
filiation in the same way & on the same evidence as
legitimate children (Art. 175, Family Code).
SUBSECTION 7.
Republication & Revival of Wills
Article 835. The testator cannot republish, without
reproducing in a subsequent will, the dispositions contained
in a previous one which is void as to its form. (n)
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)
Republishing a Will That is Void due to Formalities
If the testator wants to republish a will that is void as to
form, the only way is to –
(1) Execute a subsequent will &
(2) Reproduce (i.e., copy out) the dispositions of the
original will.
Mere reference to the prior will in the subsequent will is not
enough.
 The testator himself may, during his lifetime, petition the
When Will is Void as to Form court having jurisdiction for the allowance of his will. In
A will is void as to form when it does not comply with – such case, the pertinent provisions of the Rules of Court for
(1) Art. 804 – 808 (forms of attested wills) the allowance of wills after the testator's death shall govern.
(2) Art. 810 - Art. 814 (forms of holographic wills) The SC shall formulate such additional Rules of Court as
(3) Art. 818 & 819 (prohibition on joint wills) may be necessary for the allowance of wills on petition of
the testator.
Solution for the Testator Subject to the right of appeal, the allowance of the will,
If the testator wishes to republish a will that is either either during the lifetime of the testator or after his death,
(a) Void for a reason other than a formal defect, OR shall be conclusive as to its due execution. (n)
 Ex. A will that institutes 1 of 3 attesting
witnesses Probate Mandatory
(b) Previously revoked The probate of a will is mandatory.
The only thing necessary to republish it is for the testator to
execute a subsequent will or codicil referring to the previous CASE: GUEVARA V. GUEVARA
will. Facts: Victorino died, leaving 2 children behind – legitimate
 There is no need to reproduce the provisions of the son Ernesto, & natural daughter Rosario. Victorino executed
prior will in the subsequent instrument. a will where he bequeathed properties to Rosario, but said
will was not initially probated. For 4 years after his death,
Summary though, Rosario filed an action against Ernesto to be
Reason for Invalidity Requisites acknowledged as Victorino’s natural child. To prove this,
Void for formal defect (1) Execute a subsequent she presented the will which had not yet been probated. She
will & then claimed her inheritance, on the basis that Victorino died
(2) Reproduce the intestate, because the will had never been probated. The
dispositions of the lower courts sided with Rosario. Were they correct?
original will. Held: NO. This was an attempt to disregard the last will of
the decedent. The presentation of a will to the court for
probate is mandatory & its allowance by the court is
Void for reasons other than Execute a subsequent will
essential & indispensable to its efficacy.
formal defects or codicil referring to the
Provisions of Rule 74 may state that there may be
Previously revoked previous will.
extrajudicial partitioning through letters of administration,
but this does not mean that the probate of a will may be
Article 837. If after making a will, the testator makes a 2 nd circumvented by such partition. The Rules do not say that in
will expressly revoking the 1st, the revocation of the 2nd will case the decedent left a will the heirs & legatees may divide
does not revive the 1st will, which can be revived only by the estate among themselves without the necessity of
another will or codicil. (739a) presenting the will to the court for probate.
Under Sec. 1 of Rule 74, in relation to Rule 76, if the
Illustrative Scenario decedent left a will & no debts & the heirs & legatees desire
In 1985, X executed Will #1. to make an extrajudicial partition of the estate, they must
In 1987, X executed Will #2, expressly revoking Will #1. first present that will to the court for probate & divide the
In 1990, X executed Will #3, revoking Will #2. estate in accordance with the will. They may not disregard
The revocation of Will #2 by Will #3 does not revive Will the provisions of the will unless the provisions are contrary
#1, unless Will #3 expressly revives Will #1. to law. Neither may they do away with the presentation of
the will to the court for probate, because such suppression of
Theory of Instant Revocation the will is contrary to law and public policy. The law enjoins
The Art. is based on this theory, i.e., that the revocatory the probate of the will and public policy requires it, because
effect of the second will (Will #2) is immediate. unless the will is probated and notice thereof given to the
whole world, the right of a person to dispose of his property
If Revocation of 1st Will Implied by will may be rendered nugatory, as is attempted to be done
Art. 837 applies only when the revocation of the 1 st will by in the instant case.
the 2nd will is express. *Note: This is also the rule in our current Rules of Court.
 If the revocation is implied, the revocation of Will #3
of Will #2 will end up reviving Will #1, unless Will Sec. 1, Rule 74, Rules of Court.
#3 & Will #1 are inconsistent. Extrajudicial settlement by agreement between heirs. — If
the decedent left no will & no debts & the heirs are all of
Exception to Art. 838 age, or the minors are represented by their judicial or legal
An exception is where the 2 nd will is holographic & is representatives duly authorized for the purpose, the parties
revoked by physical destruction; probate will be forever may, without securing letters of administration, divide the
foreclosed, unless a copy survives. estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds,
SUBSECTION 8. & should they disagree, they may do so in an ordinary
Allowance and Disallowance of Wills action of partition.
If there is only one heir, he may adjudicate to himself the
Article 838. No will shall pass either real or personal entire estate by means of an affidavit filled in the office of
property unless it is proved & allowed in accordance with the register of deeds.
the Rules of Court.
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The parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for
partition, or the sole heir who adjudicates the entire estate
to himself by means of an affidavit shall file,
simultaneously with & as a condition precedent to the filing
of the public instrument, or stipulation in the action for
partition, or of the affidavit 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 &
conditioned upon the payment of any just claim that may be
filed under Sec. 4 of this Rule. It shall be presumed that the
decedent left no debts if no creditor files a petition for
letters of administration within 2 years after the death of the
decedent.
The fact of the extrajudicial settlement or administration
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 participated therein or had no notice thereof.
Two Kinds of Probate (both in Rule 76, Rules of Court)
 Post-mortem – after the testator’s death
 Ante-mortem – during his lifetime
Finality of a Probate Decree
Once a decree of probate becomes final in accordance with
the rules of procedure, it is res judicata.
CASE: DE LA CERNA V. POTOT
Facts: Bernabe & Gervasia executed a joint will, jointly
bequeathing their properties. The probate court, however,
affirmed the validity of the will (though joint wills were
always prohibited under Philippine law). The probate court’s
judgment had attained finality as it was never appealed. May
the will subsequently be contested because it is formally
defective?
Held: NO. A final judgment rendered on a petition for the
probate of a will is binding upon the whole world.
Petitioners, as heirs and successors of the late Bernabe, 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, & here they have spoken
with finality when the will was probated in 1939.
HOWEVER, the will only became final as to the share of
Bernabe; Gervasia was alive at the time of the probate
proceedings, & under the old Civil Code, there was no such
thing as ante-mortem probate & a testator’s will could not be
probated during her lifetime. Thus, it is correct to say that
the joint will is void as to the share of Gervasia over the
properties owned by her & Bernabe.
Scope of a Final Decree of Probate
A final decree is conclusive as to the due execution of the
will (i.e., extrinsic or formal validity ONLY)
CASE: GALLANOSA V. ARCANGEL
Facts: Florentino executed a will before his death, which was
already probated in 1939. Partitioning was already effected
pursuant to the probated will in 1943. In 1967, however,
oppositors to the will, claiming that the will was executed
through fraud & deceit, filed an action to annul the will with
the same probate court. The court chose to allow the case
instead of dismiss it. Was this action by the court correct?
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Held: NO. The 1939 decree of probate is conclusive as to the
due execution or formal validity of the will. After the finality
of the allowance of a will, the issue as to the voluntariness of
its execution cannot be raised anymore.
What Are Included in the Term “Formal Validity” &
Therefore Conclusively Settled by a Final Decree of Probate
1. That the testator was of sound & disposing mind;
2. That his consent was not vitiated;
3. That the will was signed by him in the presence of
the required number of witnesses;
4. That the will is genuine.
Essentially, it is conclusive that ALL the formal requisites of
the law have been complied with, both for attested or
holographic wills.
What Formal Validity Encompasses (Dorotheo v. CA)
1. Whether the will submitted is indeed the decedent’s
last will
2. Compliance with the prescribed formalities for the
execution of wills
3. Testamentary capacity
4. Due execution of the will
What Due Execution Means
1. The testator’s sound & disposing mind
2. Freedom from vitiating factors (duress, menace,
undue influence)
3. Will was genuine; no forgery
4. Proper testamentary age
5. The testator is not expressly prohibited by law from
making a will
In Sum
Extrinsic validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance with the
requisites prescribed by law.
General Rule & Exception
GR: A decree of probate does not concern itself with the
question of intrinsic validity & the probate court should not
pass upon that issue.
EXC: 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.
CASE: NEPOMUCENO V. CA
Facts: Martin died. In his last will, he bequeathed Sofia as
his heir & executor. Sofia, however, was in an adulterous
affair with him. Martin was actually married to Rufina &
had two kids with her. In the will, Martin made explicit
mention of his wife & kids as well, but prioritized Sofia.
Sofia sought to have the will of Martin admitted into
probate, but this was opposed by Rufina. The probate court,
while ruling that the will was extrinsically valid, also ruled
that the will was intrinsically void, & disallowed the will.
Sofia protested that the probate court should not have ruled
on the intrinsic validity when it was merely tasked with
admitting the will into probate. Was Sofia’s contention
correct?
Held: NO. The court acted within its jurisdiction 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 Sofia void.
Art. 739 of the Civil Code provides: “The ff. donations shall
be void: (1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation.” Also,
Article 1028 of the Code provides: “The prohibitions
mentioned in Art. 739, concerning donations inter vivos shall
apply to testamentary provisions.” From the face of the will,
it was already obvious that it was void, for Martin already
admitted that he was married to Rufina & had kids with her
but bequeathed Sofia with everything.
The general rule is that in probate proceedings, the court’s
area of inquiry is limited to an examination & resolution of
the extrinsic validity of the will. But as an exception, when
there are “practical considerations,” a probate court may
already rule on the intrinsic validity of the will. The probate
of a will might become an idle ceremony if on its face it
appears to be intrinsically void.
The prohibition in Art. 739 is against the making of a
donation between persons who are living in adultery or
concubinage. It is the donation which becomes void. The
giver cannot give even assuming that the recipient may
receive. The very wordings of the Will invalidate the legacy
because the testator admitted he was disposing the properties
to a person with whom he had been living in concubinage.
Lesson from Nepomuceno
A probate court may pass upon the issue of intrinsic validity
if on the face of the will, its intrinsic nullity is patent.
Q: What if you question the validity of the will on appeal?
A: That’s allowed and will not be considered res judicata. If
the higher courts find that the trial court erred,
Q: If the will has any of these, what will happen?
A: It will be declared void.
Article 839. The will shall be disallowed in any of the ff.
cases: (FIFIFI)
(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 & Improper pressure &
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)
Art. 839 is an Exclusive List
These are the only grounds for which a will may be
invalidated.
Status of a Will
A will is either valid or void.
 If none of the defects enumerated in Art. 839 are
present, it is valid;
 If any one of the defects is present, it is void.
 The issue of formal validity or nullity is precisely
what the probate proceedings will determine.
 There is no such thing as a voidable will.
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Invalidating Holographic Wills
In a petition to admit a holographic will to probate, the only
issues to be resolved are:
a. Whether the instrument submitted is, indeed, the
decedent's last will and testament;
b. Whether said will was executed in accordance with the
formalities prescribed by law;
c. Whether the decedent had the necessary testamentary
capacity at the time the will was executed; and,
d. Whether the execution of the will and its signing were
the voluntary acts of the decedent.
Force
Art. 1335, Civil Code. There is violence when in order to
wrest consent, serious or irresistible force is employed.
Duress
Art. 1335, Civil Code. There is intimidation when one of the
contracting parties is compelled by a reasonable and well-
grounded fear of an imminent & grave evil upon his person
or property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex &
condition of the person shall be borne in mind.
A threat to enforce one’s claim through competent authority,
if the claim is just or legal, does not vitiate consent.
Undue or Improper Pressure or Influence
Art. 1337, Civil Code. 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 & 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.
Fraud
Art. 1338, Civil Code. There is fraud when, through
insidious words or machinations of one of the contracting
parties, the other is induced to enter into a contract which,
without them, he would not have agreed to.
Mistake
Art. 1331. In order that mistake may invalidate consent, it
should refer to the substance of the thing which is the object
of the contract, or to those conditions which have principally
moved one or both parties to enter into the contract.
Mistake as to the identity or qualifications of one of the
parties will vitiate consent only when such identity or
qualifications have been the principal cause of the contract.
A simple mistake of account shall give rise to its correction.
CASE: REYES V. CA
Facts: In his will, the testator assigned all his properties to
someone he referred to as his “wife.” However, it turns out
the woman he named as his “wife” was not, in fact, his wife.
Is the will still valid?
Held: YES. The propriety of the institution of the “wife” as
one of the devisees/legatees already involved inquiry on the
will's intrinsic validity and which need not be inquired upon
by the probate court.
Rules on Extrinsic vis-à-vis Intrinsic Validity from Reyes
GR: Courts in probate proceedings are limited to pass only can have force, it must be probated. This cannot be
upon the extrinsic validity of the will sought to be probated. dispensed with and is a matter of public policy. A Partition
 The court merely inquires on – Agreement which was executed pursuant to a will that was
o Its due execution, not probated cannot be given effect.
o Whether or not it complies with the Moreover, at the time the deed of sale was executed in favor
formalities prescribed by law, & of the girlfriend, the testator remained the owner thereof
o The testamentary capacity of the testator. since ownership would only pass to his heirs at the time of
 It does not determine nor even by implication his death. Thus, as owner of the property, he had the
prejudge the validity or efficacy of the will’s absolute right to dispose of it during his lifetime.
provisions.
EXC: The intrinsic validity of a will may be passed upon CASE: HEIRS OF P. URETA V. HEIRS OF L. URETA
because “practical considerations” demand it, e.g., – Facts: Alfonso “executed” 4 deeds of sale covering parcels
 When there is preterition of heirs of land in favor of his 3 children (Policronio included) & his
common-law wife to lessen inheritance taxes. Despite the
 When the testamentary provisions are of doubtful
“sale,” Alfonso continued to enjoy the land until his death.
legality
When Alfonso died, Alfonso’s heirs executed an
 Where the parties agree that the intrinsic validity be
extrajudicial partition over the land. Conrado, the
first determined
representative of the heirs of Policronio signed the
The rule on probate is not inflexible and absolute. Under
extrajudicial partition but subsequently argued that he did
exceptional circumstances, the probate court is not powerless
not understand what he signed.
to do what the situation constrains it to do and pass upon
The CA held that the extrajudicial partition is void since
certain provisions of the will.
there was no special power of attorney given to Conrado by
the rest of the heirs of Policronio. There are thus two issues
Q: How do you compare Reyes to Nepomuceno?
in this case –
A: There are cases when the intrinsic validity of a will may
1. Was the “sale” of the parcels of land during
be looked into.
Alfonso’s valid?
2. Was the extrajudicial partition valid?
CASE: BALANAY V. MARTINEZ
Held: NO to both.
Facts: The testator disposed of conjugal assets in her will as
1. Where a deed of sale states that the purchase price
if she owned them all (which she didn’t). The trial court first
has been paid but in fact has never been paid, the
ruled upon the intrinsic validity of the will then it
deed of sale is void for lack of consideration.
subsequently declared the will void. Was the trial court
2. The heirs of Alfonso were of the position that the
correct to rule on the matter already?
absence of the Heirs of Policronio in the partition or
Held: YES. The trial court acted correctly in passing upon
the lack of authority of their representative results, at
the will’s intrinsic validity even before its formal validity
the very least, in the preterition & not the invalidity
had been established. The probate of a will might become an
of the entire deed of partition. But this theory is NOT
idle ceremony if on its face it appears to be intrinsically
viable. Preterition is a concept of testamentary
void. Where practical considerations demand that the
succession. In the absence of a will, there can be no
intrinsic validity of the will be passed upon, even before it is
preterition.
probated, the court should meet the issue.
It must be noted that the statement of the testatrix that she
CASE: PALAGANAS V. PALAGANAS
owned the southern half of the conjugal lands is contrary to
Facts: Ruperta, a Filipino who became a naturalized US
law because, although she was a co-owner thereof, her share
citizen, died single & childless. In the last will she executed
was inchoate and pro-indiviso.
in California, she designated her brother, Sergio, as the
HOWEVER, the trial court erred in declaring the entire will
executor of her will for she had left properties in the
void. Such illegal declaration does not nullify the entire will.
Philippines & in the U.S. May a will executed by a foreigner
It is only that particular provision that would be
abroad be probated in the Philippines although it has not
disregarded. The rule is that the invalidity of one of several
been previously probated & allowed in the country where it
dispositions contained in a will does not result in the
was executed?
invalidity of the other dispositions, unless it is to be
Held: Yes. Our rules require merely that the petition for the
presumed that the testator would not have made such other
allowance of a will must show, so far as known to the
dispositions if the first invalid disposition had not been
petitioner:
made.
a) The jurisdictional facts;
b) The names, ages, & residences of the heirs, legatees,
CASE: RODRIGUEZ V. RODRIGUEZ
& devisees of the testator or decedent;
Facts: The testator wrote out in his will that his children
c) The probable value & character of the property of the
would get his apartment. Before the testator died, however,
estate;
he had sold the apartment to his girlfriend. Upon the
d) The name of the person for whom letters are prayed;
testator’s death, the heirs protested the sale of the apartment
&
to the girlfriend, & claimed ownership of the property by
e) If the will has not been delivered to the court, the
succession. They alleged that the deed of sale was simulated
name of the person having custody of it.
and void. But the will was never probated. Is the sale void?
Jurisdictional facts refer to the fact of death of the decedent,
Held: NO. The sale is valid, & the girlfriend owns the
his residence at the time of his death in the province where
property. The heirs failed to prove their right of possession,
the probate court is sitting, or if he is an inhabitant of a
as the last will & the Partition Agreement have no legal
foreign country, the estate he left in such province. The rules
effect since the will has not been probated. Before any will

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do not require proof that the foreign will has already been
allowed and probated in the country of its execution.
*Note: There is also a reprobate of a will. Rule 77 of the
Rules of Court specifically governs reprobate. In reprobate,
the local court acknowledges as binding the findings of the
foreign probate court provided its jurisdiction over the
matter can be established. Reprobate or re-authentication of
a will already probated and allowed in a foreign country is
different from that probate where the will is presented for the
first time before a competent court.
RULE 76 - Allowance or Disallowance of Will
Section 1. Who may petition for the allowance of will. —
Any executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time after
the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same be
in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition the
court for the allowance of his will.
Section 2. Contents of petition. — A petition for the
allowance of a will must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees,
and devisees of the testator or decedent;
(c) The probable value and character of the property of the
estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name
of the person having custody of it.
But no defect in the petition shall render void the allowance
of the will, or the issuance of letters testamentary or of
administration with the will annexed.
Section 3. Court to appoint time for proving will. Notice
thereof to be published. — When a will is delivered to, or a
petition for the allowance of a will is filed in, the court
having jurisdiction, such court shall fix a time and place for
proving the will when all concerned may appear to contest
the allowance thereof, and shall cause notice of such time
and place to be published 3 weeks successively, previous to
the time appointed, in a newspaper of general circulation in
the province.
But no newspaper publication shall be made where the
petition for probate has been filed by the testator himself.
Section 4. Heirs, devisees, legatees, and executors to be
notified by mail or personally. — The court shall also cause
copies of the notice of the time and place fixed for proving
the will to be addressed to the designated or other known
heirs, legatees, and devisees of the testator resident in the
Philippines at their places of residence, and deposited in the
post office with the postage thereon prepaid at least 20 days
before the hearing, if such places of residence be known. A
copy of the notice must in like manner be mailed to the
person named as executor, if he be not the petitioner; also,
to any person named as co-executor not petitioning, if their
places of residence be known. Personal service of copies of
the notice at least 10 days before the day of hearing shall be
equivalent to mailing.
If the testator asks for the allowance of his own will, notice
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shall be sent only to his compulsory heirs.
Section 5. Proof at hearing. What sufficient in absence of
contest. — At the hearing compliance with the provisions
of the last two preceding sections must be shown before the
introduction of testimony in support of the will. All such
testimony shall be taken under oath and reduced to writing.
It no person appears to contest the allowance of the will,
the court may grant allowance thereof on the testimony of
one of the subscribing witnesses only, if such witness
testify that the will was executed as is required by law.
In the case 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. In the
absence of any such competent witness, and if the court
deem it necessary, expert testimony may be resorted to.
Section 6. Proof of lost or destroyed will. Certificate
thereupon. — No will shall be proved as a lost or destroyed
will unless the execution and validity of the same be
established, and the will is proved to have been in existence
at the time of the death of the testator, or is shown to have
been fraudulently or accidentally destroyed in the lifetime
of the testator without his knowledge, nor unless its
provisions are clearly and distinctly proved by at least 2
credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by
the judge, under the seal of the court, and the certificate
must be filed and recorded as other wills are filed and
recorded.
Section 7. Proof when witnesses do not reside in province.
— If it appears at the time fixed for the hearing that none of
the subscribing witnesses resides in the province, but that
the deposition of one or more of them can be taken
elsewhere, the court may, on motion, direct it to be taken,
and may authorize a photographic copy of the will to be
made and to be presented to the witness on his examination,
who may be asked the same questions with respect to it,
and to the handwriting of the testator and others, as would
be pertinent and competent if the original will were present.
Section 8. Proof when witnesses dead or insane or do not
reside in the Philippines. — If the appears at the time fixed
for the hearing that the subscribing witnesses are dead or
insane, or that
none of them resides in the Philippines, the court may
admit the testimony of other witnesses to prove the sanity
of the testator, and the due execution of the will; and as
evidence of the execution of the will, it may admit proof of
the handwriting of the testator and of the subscribing
witnesses, or of any of them.
Section 9. Grounds for disallowing will. — The will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear,
or threats;
(d) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary, or of some other
person for his benefit;
(e) If the signature of the testator was procured by fraud or
trick, and he did not intend that the instrument should be
his will at the time of fixing his signature thereto.
Section 10. Contestant to file grounds of contest. —
Anyone appearing to contest the will must state in writing
his grounds for opposing its allowance, and serve a copy
thereof on the petitioner and other parties interested in the
estate.
Section 11. Subscribing witnesses produced or accounted
for where will contested. — If the will is contested, all the
subscribing witnesses, and the notary in the case of wills
executed under the Civil Code of the Philippines, if present
in the Philippines and not insane, must be produced and
examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or
some of such witnesses are present in the Philippines but
outside the province where the will has been filed, their
deposition must be taken. If any or all of them testify
against the due execution of the will, or do not remember
having attested to it, or are otherwise of doubtful
credibility, the will may nevertheless, be allowed if the
court is satisfied from the testimony of other witnesses and
from all the evidence presented that the will was executed
and attested in the manner required by law.
If a holdgraphic will is contested, the same shall be allowed
if at least 3 witnesses who know the handwriting of the
testator explicitly declare that the will and the signature are
in the handwriting of the testator; in the absence of any
competent witnesses, and if the court deem it necessary,
expert testimony may be resorted to.
Section 12. Proof where testator petitions for allowance of
holographic will. — Where the testator himself petitions
for the probate of his holographic will and no contest is
filed, the fact that the affirms that the holographic will and
the signature are in his own handwriting, shall be sufficient
evidence of the genuineness and due execution thereof. If
the holographic will is contested, the burden of disproving
the genuineness and due execution thereof shall be on the
contestant. The testator to rebut the evidence for the
contestant.
Section 13. Certificate of allowance attached to prove will.
To be recorded in the Office of Register of Deeds. — If the
court is satisfied, upon proof taken and filed, that the will
was duly executed, and 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, a
certificate of its allowance, signed by the judge, and
attested by the seal of the court shall be attached to the will
and the will and certificate filed and recorded by the clerk.
Attested copies of the will devising real estate and of
certificate of allowance thereof, shall be recorded in the
register of deeds of the province in which the lands lie.
SECTION 2.
Institution of Heir
Article 840. Institution of heir is an act by virtue of which a
testator designates in his will the person or persons who are
to succeed him in his property & transmissible rights &
obligations. (n)
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Q: In his will, A instituted the conceived child of his sister as
his sole heir. Is the will valid or not?
A: Yes, it is valid. Anyone can be instituted as an heir. Even
if the child is not yet born, our laws grant it the civil
personality to receive anything beneficial to it. For as long as
she is sufficiently described that her identity is known, it is
valid.
Q: Does this provision apply to devisees & legatees?
A: Yes.
Article 841. A will shall be valid even though –
1. It should not contain an institution of an heir, or
2. Such institution should not comprise the entire
estate, &
3. Even though the person so instituted should not
accept the inheritance or should be incapacitated to
succeed.
In such cases the testamentary dispositions made in
accordance with law shall be complied with & the
remainder of the estate shall pass to the legal heirs. (764)
At Minimum: Comply with Formalities
Even if the will does not contain any testamentary
disposition, it will be formally valid AS LONG AS it
complies with all the formal requisites.
Q: What is an example of a will where no heir is instituted?
A: One example would be when the testator merely lists his
properties and also designates an executor, but names no
heir.
Q: What is the difference between compulsory and legal
heirs?
A: Compulsory heirs are those entitled to a legitime; not all
heirs are compulsory heirs. In the absence of a will, the
properties will go to the intestate heirs – also referred to as
the legal heirs.
Q: Who are testamentary heirs?
A: Those in the last will and testament. They may or may
not be compulsory heirs.
Q: Who are compulsory heirs?
A: Those entitled to a legitime. Nieces, for example, are not
compulsory heirs by law, but may be legal heirs.
Article 842. One who has no compulsory heirs may
dispose by will of all his estate or any part of it in favor of
any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs. (763a)
Disposing Through Wills
COMPULSORY HEIRS? EXTENT OF DISPOSITION
No compulsory heirs Entire hereditary estate
With compulsory heirs The disposable portion; i.e., the
net hereditary estate minus
legitimes
Mixed Succession
If the testator disposes by will of less than he is allowed to,
there will be mixed succession
  Testamentary succession - as disposed of by the will
 Intestate succession – the part not disposed of by the
will
 Compulsory succession - legitimes, of course, if
there are any, pass by strict operation of law.
Q: What if a testator has two nieces, X & Y? The testator
designates that 50% of his property will go to X. Burt Y is
not named in the will. Who gets the other 50% of the
properties belonging to the testator?
A: The testamentary heir, X, gets 50% because that is what
the testator wanted. The other 50% will go to both X & Y,
because both of them are legal heirs.
Article 843. The testator shall designate the heir by his
name & surname, and when there are 2 persons having the
same names, he shall indicate some circumstance by which
the instituted heir may be known.
Even though the testator may have omitted the name of the
heir, should he designate him in such manner that there can
be no doubt as to who has been instituted, the institution
shall be valid. (772)
Clarity is Important
 The heir, legatee, or devisee must be identified in the
will with sufficient clarity to leave no doubt as to the
testator’s intention
 What is required is that the identity of the designated
successor be sufficiently established
 Ex. “I designate as heir to one-eighth of my estate
my eldest first cousin.” - ALLOWED!
Article 844. An error in the name, surname, or
circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with
certainty the person instituted.
If among persons having the same names & surnames,
there is a similarity of circumstances in such a way that,
even with the use of other proof, the person instituted
cannot be identified, none of them shall be an heir. (773a)
Resolving Ambiguities
 USE Art. 789
o When there is an imperfect description, or when
no person or property exactly answers the
description, mistakes and omissions must be
corrected, if the error appears from the context
of the will or from extrinsic evidence, excluding
the oral declarations of the testator as to his
intention
o When an uncertainty arises upon the face of the
will, as to the application of any of its
provisions, the testator’s intention is to be
ascertained from the words of the will, taking
into consideration the circumstances under
which it was made, excluding such oral
declarations.
 If ambiguity cannot be resolved, intestacy as to that
portion will result.
Q: Must the name be stated?
A: Not necessarily, so long as it is very, very clear who the
person being referred to is.
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Q: What if the testator gives it to “his handsome cousin.” Is
the designation enough?
A: No, unless he only has one cousin or only 1 male cousin.
Q: What if the testator makes Superman his heir, is that
enough?
A: As a general rule, no, because it is not certain who is
being referred to in the situation. It depends on the
circumstances; perhaps he has a friend who is referred to as
Superman?
Q: What kind of evidence can be presented to prove the
identity of a supposed heir?
A: Any evidence, EXCEPT oral evidence from the testator.
Article 845. Every disposition in favor of an unknown
person shall be void,
 UNLESS: by some event or circumstance his
identity becomes certain.
 HOWEVER: A disposition in favor of a definite
class or group of persons shall be valid. (750a)
Refers to Ambiguity, Not Strangers
 A testator may institute someone who is a perfect
stranger to him.
 This provision refers to when the identity of the heir
is so ambiguous as to be incapable of resolution.
o Ex. “I designate as heir to ¼ of my estate a
fiction writer.”
Article 846. Heirs instituted without designation of shares
shall inherit in equal parts. (765)
Collective Designation
GR: There is equality when there is collective designation
EXC: When there is express stipulation to the contrary
Applicable Only to Testamentary Heirs
Art. 846 will not apply to an heir who is both a compulsory
and a testamentary heir.
 That person should get both his legitime & his
testamentary portion
Sample Scenario
X, the testator, in his will institutes to ¼ of his estate the
following: A (his son), B (his cousin), & C (his friend). A,
being X’s compulsory heir, will get his legitime plus 1/3 of
the 1/4 given by will. As testamentary heir, A gets a share
equal to those of B & C, but since A is also a compulsory
heir, & is entitled to his legitime plus his testamentary share,
he will end up getting a larger slice of X’s estate than B or
C.
Q: What is Art. 846 referring to?
A: It is referring to the principle of equality of shares. If a
testator names several people to be his heir but does not
specify the share of each one of them, they are deemed to
have equal shares.
Article 847. When the testator institutes some heirs
individually & others collectively as when he says, "I
designate as my heirs A & B, & 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 & Individuality of Designation
 Follow the basic rule of equality!
 Presumption: Heirs collectively referred to are
designated per capita along with those separately
designated.
 If the testator intends a block designation, he should
so specify.
Q: A childless bachelor instituted his father & 3 brothers as
his sole heirs in his will. How will you distribute his estate
of P 2 million among them?
A: They will each get equal proportions of the free portion
of the estate. When the testator stipulates one heir
individually and others collectively, it is presumed that they
are all instituted individually. If the testator intended
collective institution, he should expressly state so. However,
in this case, the father will actually receive more than the 3
brothers since he is a compulsory heir entitled to his
legitime. The father will get P 1 million as his legitime & the
remaining millions will be divided equally among the 4
voluntary heirs.
Article 848. If the testator should institute his brothers &
sisters, & he has some of full blood and others of half
blood, the inheritance shall be distributed equally unless a
different intention appears. (770a)
Art. 848: Only Testamentary Succession
 Art. 848 refers only to testamentary succession.
 In intestacy: Art. 100611 applies, which establishes a
proportion of 2:1 between full- & half-blood brothers
& sisters (without prejudice to the rule prohibiting
succession ab intestato between legitimate &
illegitimate siblings. [Art. 992]12
Testamentary v. Intestate
Testamentary Intestate
Equality of shares of Proportion of 2:1 between
full- and half-blood full- & half-blood brothers
siblings, unless the & sisters (Art. 1006), &
testator provides only if the disqualification
otherwise in Art. 992 does not apply
Q: In his will, Roberto instituted two legitimate brothers &
two illegitimate brothers as his sole heirs. How will you
distribute his estate among them?
11
Article 1006. Should brother & sisters of the full blood survive together
with brothers & sisters of the half blood, the former shall be entitled to a share
double that of the latter. (949)
12
Article 992. An illegitimate child has no right to inherit ab intestato from
the legitimate children & relatives of his father or mother; nor shall such
children or relatives inherit in the same manner from the illegitimate child.
(943a)
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A: In the absence of any stipulation to the contrary, the law
presumes that the testator intended that the estate be divided
among them in equal parts. There is no difference between
an illegitimate & legitimate sibling when it comes to
testamentary succession.
Article 849. When the testator calls to the succession a
person and his children they are all deemed to have been
instituted simultaneously & not successively. (771)
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)
Art. 850 Summary
GR: The falsity of the stated cause for the testamentary
institution does not affect its validity or efficacy.
EXC: The falsity of the stated cause for institution will set
aside the institution, if certain factors are present.
CASE: AUSTRIA V. REYES
Facts: Basilia filed a petition for probate of her last will. Her
petition was opposed by her nieces & nephews (Ruben’s
group), as in Basilia’s will, there were 5 individuals
(Perfecto’s group) that she considered as her legal heirs who
would inherit her estate. When Basilia died 2 years later &
proceedings on her will began, Ruben’s group claimed that
the adoption papers of Perfecto’s group were fake; thus, they
were never actually adopted. Basilia’s will stated that she
would give to her adopted children equal shares of her estate
as their compulsory legitime. Does the falsity of the
adoption, via the lack of adoption papers, negate the right of
Perfecto’s group?
Held: NO. Before the institution of heirs may be annulled
under Art. 850, the ff. requisites must concur:
(1) The cause for the institution of heirs must be stated in
the will;
(2) The cause must be shown to be false; &
(3) 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.
Art. 850 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 institution 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 mistaken in treating these heirs as
her legally adopted children? Or would she have instituted
them nonetheless?
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, respectively, 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 allowance for
legitimes. Her disposition of the free portion of her estate
(fibre disposicion) which largely favored the Perfecto group
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.
Doubts in Favor of Testacy
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 interpreting a will, that is to be preferred which
will prevent intestacy
Balane Thinks: What Paragraph 1 Should Be
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.
Q: What are the requisites before the institution of an heir
may be annulled under Art. 850?
A: The requisites as provided in Austria v. Reyes are –
1. The cause of the institution of the heirs must be stated in
the will.
2. The cause must be shown to be false.
3. It must appear from the face of the will that the testator
would not have made such intention, had he known the
falsity of the cause.
Q: In his will, Tom instituted as his sole heir Rosario, whom
he believed to be the daughter of his wife in a previous
relationship. The allowance of his will was opposed by his
brother on the ground that Rosario was not really the
daughter of Tom’s wife but of her sister. If you were the
judge, how will you rule?
A: I would rule in favor of Rosario. In order for a false cause
to invalidate the institution of an heir, such cause must be
expressly stated in the will and it must be seen that if it were
not for such cause, the heir would not have been so
instituted. Absent these requisites, the false cause will
simply be considered unwritten and the institution of the heir
will remain valid.
Article 851. If the testator has instituted only one heir, &
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, & all the parts
do not cover the whole inheritance. (n)
Balane Explains
Legal succession does not take place with respect to the
remainder of the estate, but to the remainderof the
disposable portion. There may, after all, be compulsoryheirs
whose legitimes will therefore cover part of the estate; the
legitimes do not pass by legal or intestate succession.
Better Version
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.”
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Q: What if A has no compulsory heirs & gave 50% to
another named in his will?
A: The rest goes to his legal heirs.
Q: What if there were 2 designated heirs? What happens to
the other 50%?
A: 50% or whatever wasn’t given will still go to the legal
heirs.
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)
Q: What is the difference between Art. 851 & Art. 852/3?
A: In Art. 851, the intent was really to give only a specific
portion. In Art. 852/3, the intent was to give ALL of the
property, which is why there is an increase or decrease.
Article 853. If each of the instituted heirs has been given
an aliquot part of the inheritance, and the parts together
exceed the whole inheritance, or the whole free portion, as
the case may be, each part shall be reduced proportionally.
(n)
When Art. 851 & 852 Apply
(1) There is more than one instituted heir,
(2) The testator intended them to get the whole estate or the
whole disposable portion, as the case may be, &
(3) The testator has designated a definite portion for each
heir.
Situations Contemplated
The total of all the portions is less than the whole estate (or
the whole disposable portion). Therefore, a proportionate
increase is necessary.
 The difference cannot pass by intestacy because
the testator’s intention is clear to give the instituted
heirs the entire amount.
Scenario 1
X dies without any compulsory heirs but leaves a will
containing the following disposition: “I institute A, B, and C
to my entire estate in the following proportions: A-1/2; B-
2/3; C-1/8.” At the
time of his death, X’s estate is valued at P600,000.
1. The total of the specified portions is only 23/24. A
proportionate increase should be made.
Per the proportions specified in the will:
A = 300,000
B = 200,000
C = 75,000
----------------------
575,000
2. Formula for A:
300,000 x
------------------ = ------------------
575,000 600,000
3. Final Answers
A = 313,043.48
B = 208,695.65
C = 78,260.87
Scenario 2
X dies with Y (a legitimate child) as his only compulsory
heir. X leaves a will stating: “I give A, B, and C the entire
disposable portion (1/2) of my estate, 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.
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
*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 institution of heir; but
the devises & legacies shall be valid insofar as they are not
inofficious.
If the omitted compulsory heirs should die before the
testator, the institution shall be effectual, without prejudice
to the right of representation. (814a)
Manresa’s Definition
Preterition consists in –
(1) The omission of an heir in the will,
(2) 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.
Manresa’s Definition Broken Down
Preterition is:
(1) Not naming an heir at all
(2) Mentioning an heir without instituting him or expressly
disinheriting him
(3) Not assigning him to some part of the properties
 A donation inter vivos is an advance of the legitime
under Art. 906, 909, 910 & 106213
Preterition
It is the implied removal of an heir (as opposed to
disinheritance, which is express)
 Ex. When X leaves in his will all his properties to his
children in a 2nd marriage, without mentioning kids
from the 1st marriage, there is preterition
Q: What type of heir is concerned in preterition?
A: The compulsory heir ONLY. No other type is
contemplated.
13
“Art. 909. Donations given to children shall be charged to their legitime.
“Donations made to strangers shall be charged to that part of the estate of
which the testator could have disposed by his last will.
“Insofar as they may be inofficious or may exceed the disposable portion, they
shall be reduced ac- cording to the rules established by this Code."
“Art. 910. Donations which an illegitimate child may have received during the
lifetime of his father or mother, shall be charged to his legitime.
“Should they exceed the portion that can be freely disposed of, they shall be
reduced in the manner prescribed by this Code.”
“Art. 1062. Collation shall not take place among compulsory heirs if the donor
should have so expressly provided, or if the donee should repudiate the
inheritance, unless the donation should be reduced as inofficious.”
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What is Not Considered Preterition
(1) If the heir in question is instituted in the will but the
portion given to him by will is less than his legitime, there is
no preterition.
(2) If the heir is given a legacy or devise, there is no
preterition.
(3) If the heir has received a donation Inter vivos
(4) If the heir is not mentioned in the will nor was a recipient
of a donation inter vivos, but not all of the estate is disposed
of by will, there is no preterition
What IS Considered Preterition
When the direct heir receives NOTHING from –
(1) Testamentary succession
(2) Legacy or devise
(3) Donation inter vivos
(4) Intestacy
*Preterition is TOTAL omission of a compulsory heir from
the inheritance.
CASE: MANINANG V. CA
Facts: When Clemencia died, she left a will which said –
It is my will that all my real properties located in
Manila and all my personal properties shall be
inherited upon my death by Dra. Soledad
Maninang with whose family I have lived
continuously for around the last 30 years now.
Dra. Maninang & her husband Pamping have been
kind to me. ... I have found peace & happiness
with them even during the time when my sisters
were still alive and especially now when I am now
being troubled by my nephew Bernardo and niece
Salvacion. I am not incompetent as Nonoy would
like me to appear. I know what is right & wrong. I
can decide for myself. I do not consider Nonoy as
my adopted son. He has made me do things
against my will.
Dra. Soledad filed a petition for the probate of the will of the
decedent. Nonoy then filed a Motion to Dismiss the Testate
Case on the ground that the holographic will was void
because he, as the only compulsory heir & adopted son of
the decedent, was preterited &, therefore, intestacy should
ensue. In her Opposition to said Motion to Dismiss,
petitioner Soledad averred that it is still the rule that in a case
for probate of a Will, the court's area of inquiry is limited to
an examination of the extrinsic validity of the will; and that
Nonoy was effectively disinherited by the decedent. Should
the Motion to Dismiss be granted?
Held: NO. The law enjoins the probate of the Will and
public policy requires it, because unless the Will is probated
and notice thereof given to the whole world, the right of a
person to dispose of his property by Will may be rendered
nugatory. One exception to this general rule is when
compulsory heir is totally preterited, making the will
intrinsically invalid. However, for this exception to apply, it
becomes important to examine whether the words in the will
in this case lead preterition or disinheritance.
The effects flowing from preterition are totally different
from those of disinheritance. Pretention 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 Art. 918, such disinheritance shall also "annul the
institution of heirs", but only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the
case of preterition. Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which the
disinherited heirs have been illegally deprived.
The Court remanded the case back to the trial court for a
determination of whether the will contained a disinheritance
or preterition.
Q: What if the son as omitted, but in his birthday, he was
given a car as a gift; is that preterition?
A: No, because a donation was made in advance of the
legitime.
Q: What if the son was not given a gift or legacy but his dad
only disposed of 20% of his estate. Is there preterition?
A: NO. The son will still be able to receive something in that
case.
Q1: X has 5 kids but only gives all his property to his 4
heirs. The property is cash worth P1M. How will this be
divided?
A: Since there was a preterited heir, the will will be
annulled. The P1M will be divided among the 5 of them.
Q2: Can the 4 kids just agree with the 1 kid that he’ll just get
his legitime from them?
A: NO. The preterited heir gets more in law.
Q3: How about if in the same will, a legacy was given to the
church?
A: The legacy subsists despite the preterition. The legacy
will be given then the 5 kids divide the rest.
Q: What is meant by inofficious?
A: If it encroaches on the legitime of the compulsory heirs.
An inofficious donation or legacy will be void to the extent
that it is inofficious.
Q: What if there were 5 kids, but one of them was
disinherited. Later, it was learned that the disinheritance was
not valid. The total worth of the estate is P1M. How much
can the one kid get?
A: P100,000 out of P1M representing his legitime. For this
defective Preterition, he can ask for P200,000. One P100K is
his legitime, and the other P100K his share as heir.
CASE: REYES V. BARRETTO-DATU
Facts: Bibliano & Maria were married. When Bibliano died,
he left in his will some portions for Salud, and some for
Milagros, both surnamed Barretto. Milagros is now
contending that the partitioning of Bibliano’s estate was
totally void & that Salud had not acquired valid title from it
of Bibliano’s properties, on the ground that Milagros got less
in it than what should be her share under law. The trial court
ruled in Milagros’ favor, stating that the latter was the only
legal heir & was thus entitled to all properties of Bibliano’s.
Held: Bibliano’s will is VALID. There was no Preterition, or
total omission, of a forced heir, even if Salud is not actually
Bibliano’s daughter. While the ½ share assigned to Salud
impinged on Milagros’ legitime, Salud did not, for that
reason, cease to be Bibliano’s testamentary heir.
Heir’s Remedy When He is Named in Will but is Given Less
than He Should Under His Legitime?
1. Art. 906 - Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him may
demand that the same be fully satisfied.
2. Art. 907 - Testamentary dispositions that impair or
diminish the legitime of the compulsory heirs shall be
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reduced on petition of the same, insofar as they may be
inofficious or excessive.
CASE: AZNAR V. DUNCAN
Facts: Edward died. In his will, Lucy & Helen were both
named as heirs, but Helen was only given a legacy to the
extent of P3,600. Lucy’s legitimacy is certain, but Edward
did not acknowledge Helen as his child during his lifetime;
she was judicially declared his daughter after his death. The
trial court ruled there was preterition, so the will should be
annulled. Is there preterition?
Held: NO. Helen is just entitled to recover her proper
legitime under the law. The estate of the deceased Edward
upon his death consisted of 399 shares in the Plantation
Company and a certain amount in cash. 1/4 of said estate
descended to Helen as her legitime. Since she became the
owner of her share as of the moment of the death of the
decedent, she is entitled to a corresponding portion of all the
fruits or increments thereof subsequently accruing. These
include the stock dividends on the corporate holdings. The
contention of Lucy that all such dividends 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 with
respect to her legitime.
CASE: SEANGIO V. REYES
Facts: The will of Segundo stated that he was disinheriting
his son, Alfredo, as he was a bad son & spoke
disrespectfully to him. Victoria, his daughter, was mentioned
as having seen the fight. Is there preterition?
A: NO. Segundo was merely expressing that he was
bequeathing his estate to all compulsory heirs, except
Alfredo. Segundo did not even institute an heir to the
exclusion of his other heirs. The mere mention of the name
of Virginia (his daughter) in the document as a witness to the
spat is not equivalent to making her a universal heir.
Direct Line
Art. 964 - A direct line is that constituted by the series of
degrees among ascendants and descendants.
Q: What is “direct line”?
A: Direct descendants, or in some cases, ascendants. Uncles
& aunts are collateral relatives, and not direct.
Q: Is the spouse in the direct line?
A: NO. Although compulsory, a spouse is not in the direct
line.
Q: Are illegitimate children considered in the direct line?
A: For Manresa, yes, though there is debate. However,
Balane agrees with Manresa, since the law does not
distinguish.
Covered Heirs
Art. 854 is not totally accurate, as it seems to exclude those
born after the will is written but before the testator dies.
Instead, it should be: “whether living at the time of the
execution of the will or born subsequently, even after the
testator’s death.”
When There Can Be Determination of Existence of
Preterited Heirs
The determination of whether or not there are preterited
heirs can be made only upon the testator’s death.
Descendants of Heirs Are Affected by Preterition interpretation. Giving it an expansive meaning will tear up
Should the preterited heir predecease (or be unworthy to by the roots the fabric of the statute.
succeed) the testator, the question of preterition of that heir One should not be led astray by the statement in Art. 854
becomes moot. However, should there be a descendant of that, annulment notwithstanding, “the devises and legacies
that heir who is himself preterited, then the effects of shall be valid insofar as they are not inofficious.” Legacies
preterition will arise. and devises merit consideration only when they are so
 Ex. X has two legitimate children: A & B. X makes a expressly given as such in a will. Nothing in Art. 854
will which results in the preterition of A. A suggests that the mere institution of a universal heir in a will
predeceases X but leaves a legitimate child A-1, who —void because of preterition—would give the heir so
is himself completely omitted from the inheritance instituted a share in the inheritance. As to him, the will is
(A-1 being entitled to succeed X by representation). inexistent. There must be, in addition to such institution, a
Art. 854 will apply, not because A was preterited but testamentary disposition granting him bequests or legacies
because A-1 was preterited. apart and separate from the nullified institution of heir.
 Ex. If the preterited heir who pre-deceases is a Remedios also claims this is actually a case of ineffective
child but the testator is survived solely by disinheritance. But SC held otherwise. It stated the
ascendants, who are entitled to a legitime in differences as follows:
default of descendants.
PRETERITION DISINHERITANCE
CASE: ACAIN V. IAC Consists in the omission in A testamentary disposition
Facts: Nemesio died & left as universal heirs the ff.: the testator’s will of the depriving any compulsory
petitioner, his brothers Antonio, Flores and Jose and his forced heirs or anyone of heir of his share in the
sisters Anita, Concepcion, Quirina and Laura were instituted them, either because they legitime for a cause
as heirs. However, he excluded his adopted daughter, are not mentioned therein, authorized by law.
Virginia, & widow. Is there preterition? or, though mentioned, they
Held: YES, but only as to the adopted daughter. Virginia’s are neither (1) instituted as
legal adoption by the testator has not been questioned by heirs nor are (2) expressly
petitioner. Under Art. 39 of P.D. No. 603, known as the disinherited.
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 A total omission of an heir, Must be express & must be
totally omitted and preterited in the will of the testator and without express supported by a legal cause
that both adopted child and the widow were deprived of at disinheritance specified in the will itself
least their legitime. Neither can it be denied that they were
not expressly disinherited. Hence, this is a clear case of Implied basis: Inadvertent
preterition of the legally adopted child. omission
Annuls the institution of the Nullity is limited to that
Effect of Preterition
heir, in toto; thus, it throws portion of the estate of
 Annulment of the institution of heir open to the estate the entire which the disinherited heirs
 Validity of legacies & devises to the extent that inheritance have been illegally deprived
these latter do not impair legitimes.

CASE: NUGUID V. NUGUID HOWEVER: The legacies

Facts: Rosario died without descendants. Surviving her were or devises stand, to the
her parents & siblings. In Rosario’s will, she instituted her extent of the free portion
sister, Remedios, as her universal heir. The probate of this (merely to be reduced, not
will was opposed by Rosario’s parents, who claimed to have set aside, if the legitimes are
been preterited. The will reads: impaired) but the institution
I, ROSARIO NUGUID, being of sound and disposing of heirs, if any, will be
mind and memory, having amassed a certain amount of swept away.
property, do hereby give, devise, and bequeath all of the
property which I may have when I die to my beloved The will here does not explicitly disinherit the testatrix’s
sister Remedios. parents, the forced heirs. It simply omits their names
Is there preterition? altogether. Said will rather than be labeled ineffective
Held: YES. The will here institutes Remedios as the sole, disinheritance is clearly one in which the said forced heirs
universal heir—nothing more. No specific legacies or suffer from preterition.
bequests are therein provided for. The nullity is thus
complete. Perforce, Rosario died intestate. Curing Ineffective Disinheritance
There is no escaping the conclusion that the universal If the testator explicitly disinherits the heir, this Art. 854 will
institution of petitioner to the entire inheritance results in not apply. Should the disinheritance be ineffective, for
totally abrogating the will. Because, the nullification of such absence of one or other of the requisites for a valid
institution of universal heir—without any other testamentary disinheritance, the heir is simply entitled to demand his
disposition in the will—amounts to a declaration that rightful share.
nothing at all was written. Carefully worded and in clear
terms, Art. 854 offers no leeway for inferential Q: In his will, Joseph instituted his three sons David, Isaac,

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and Abraham to be the sole heirs of his estate. He did not
include Martha, because she was only an adopted child. Can
she oppose the allowance of his will on the ground of
preterition?
A: Yes, she can oppose the allowance of the will. The law
mandates that a testator’s children be considered as the
primary compulsory heirs. Although they receive different
portions, they are all entitled to a part of their parent’s estate
whether they are legitimate, illegitimate, adopted or
legitimated children.
Q: He also did not include his wife, because he had given
her a set of jewelries on their wedding day. Can she oppose
the allowance of his will on the ground of preterition?
A: No, she cannot oppose the will. The provision on
preterition only covers those in the direct line, meaning the
children, parents and other ascendants and descendants in
the direct line. The wife is not part of the direct line.
Q: A 40-hectare parcel of land, situated in Davao City &
covered by TCT No. 12345, is owned by Magdalena & her 3
children, Jose, Jorge & Melissa, in equal shares. Magdalena
died, & in a document entitled “My Will,” wholly written,
dated & signed in her handwriting, was found in her
aparador. The will states: “It is my will to give my only
property, 40 hectares of land in Davao City, covered by TCT
No. 12345, to the children of my daughter Melissa, Mariano
& Marjorie.”
 Q1: Is the will extrinsically valid?
 A1: Yes, the will is extrinsically valid. It is a
holographic will, which requires only that it is
wholly written, dated & signed by the testator in his
or her own handwriting.
 Q2: Is the will intrinsically valid?
 A2: No. A testator can only transmit property, rights
& obligations which belong to him or her. Moreover,
the preterition of compulsory heirs in the direct line,
whether living at the time of the execution of the will
or born after the testator’s death, shall annul the
institution of heir. Here, the testator Magdalena
disposed of the entire 40 hectares of property, to the
prejudice of her co-owners. She also totally omitted
heirs in the direct line – Jose, Jorge & Melissa. The
will is this intrinsically void.
 Q3: On the basis of your answers above, how should
the estate of Magdalena be divided?
 A3: Since there was preterition, the institution of
Mariano & Marjorie as heirs shall be annulled. While
it may be argued that the disposition of the land was
a devise, it must be noted that the 40-hectare property
was Magdalena’s sole property & thus her entire
estate. As such, the law on preterition will be
followed, annulling the institution of heir in the will.
Following the law on succession, since there is no
will, succession will proceed through intestate
proceedings, by virtue of which the compulsory
heirs, Jose, Jorge & Melissa will divide equally,
among themselves, a ¼ pro indiviso share of the 40-
hectare property that Magdalena actually owns.
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;
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 If that is not sufficient, so much as may be
necessary must be taken proportionally from the
shares of the other compulsory heirs. (1080a)
Application of Art. 855
This article applies 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.
 This Article is thus misplaced.
How to Fill Up Compulsory Heirs
1. From the portion of the estate left undisposed of by will.
2. From the shares of the testamentary heirs, legatees, &
devisees, proportionally.
How Art. 855 Actually Applies
1. This coverage should extend not only to children and
descendants, but to all compulsory heirs. As subsequent
articles (906, etc.) 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.
Article 856. A voluntary heir who dies before the testator
transmits nothing to his heirs. A compulsory heir who dies
before the testator, a person incapacitated to succeed, and
one who renounces the inheritance, shall transmit no right
to his own heirs except in cases expressly provided for in
this Code. (766a)
Non-Transmission as Absolute Rule
 This rule of non-transmission is absolute; there is no
exception to it.
 Representation does not constitute an exception,
because in representation the person represented does
not transmit anything to his heirs. Representation is
rather a form of subrogation.
Summary of Rules
 An heir — whether compulsory, voluntary, or legal
— transmits nothing to his heirs in case of
predecease, incapacity, renunciation, or
disinheritance.
 BUT: Rules of representation will apply if –
o In case of predecease or incapacity of
compulsory or legal heirs
o In case of disinheritance of compulsory heirs
CASE: PECSON V. CORONEL
Facts: The testator excluded her blood relatives (not
compulsory heirs) in her will and appointed an unrelated
sole beneficiary. The relatives assail the validity of the will
because according to them it was very unlikely for the
testator to deliberately exclude them and for the former to
appoint a beneficiary who is not her relative.
Held: The will is valid. Although family ties in this country
are very strongly knit, the exclusion of relatives, who are not
forced heirs, from the inheritance is not an exceptional case.
Even if the appointment of a beneficiary do not seem to be
the most usual and ordinary because the beneficiary is not a
 relative of the testatrix who has relatives by blood, this alone
will not render the appointment void per se. [TNR]
The fact that the only heir named in the will is appointed
[TNR] [TNNR]
executor is no proof that the testator's intention was that said - Transmits nothing Not applicable
executor should distribute the estate among the relatives of - No Representation

the testator. A sole heir may also be an executor, inasmuch Voluntary

as the function of an executor is not limited merely to [TNNR]

[N/A]
distributing the inheritance, but he has other duties and - Transmits nothing - Transmits nothing Not applicable
powers, such as to preserve, defend, and liquidate the - Representation - No Representation
inheritance until it is delivered to the person entitled to it. Legal
[TNR] [TNNR]
[N/A]
CASE: DEL ROSARIO V. DEL ROSARIO
Facts: Nicolas died. In his will, he named his nephews as
SECTION 3. Substitution of Heirs.
entitled to allowances from his wife so long as she lived;
thereafter, they could still get allowance if they were still
studying for a bachelor’s degree. The wife died. May the Article 857. Substitution is the appointment of another heir
nephews still demand allowance? so that he may enter into the inheritance in default of the
Held: NO. The provision in the will granting them allowance heir originally instituted. (n)
was hinged on the wife being alive. Now that the wife is
dead & they long since graduated from college & received Flaw in the Definition
they bachelor’s degree already, they can no longer claim The definition above excludes the fideicommissary. In the
allowance. fideicommissary, the second heir does not succeed in default
of the first, but after the first.
CASE: MANINANG V. CA
Facts: Clemencia left a will where she said all her properties Balane’s Version
would be inherited by Maninang, with whose family Substitution is the appointment of another heir so that he
Celemnia stayed for many years. The will also provided that may enter into the inheritance in default of, or subsequent to,
she “did not consider Bernardo as her adopted son.” Is this the heir originally instituted.
disinheritance or preterition?
Held: UNCERTAIN. The trial court said this was preterition Fideicommissary v. Simple Substitution
and not disinheritance. SC said the facts were not conclusive  Fideicommissary – the testator imposes a restriction or
and remanded. burden on the first heir, coupled with a selection of a
subsequent recipient of the property.
CASE: NON V. CA  Simple substitution – a conditional institution; the
Facts: Delia, a retarded child of Virginia, was allegedly testator simply makes a second choice, in case the first
excluded from the deed of extrajudicial settlement between choice does not inherit.
Virginia’s heirs. As such, on her behalf, a sibling posits that
the issued TCT to the questioned property should be Article 858. Substitution of heirs may be:
declared void. (SC-BC-RECI-FIDEI)
Held: The TCT cannot be declared void. While Delia’s (1) Simple or Common;
exclusion had the effect of preterition, this kind of (2) Brief or Compendious;
preterition, in the absence of proof of fraud & bad faith, does (3) RECIprocal; or
not justify a collateral attack on the TCT. The relief would (4) FIDEIcommissary. (n)
be in Art. 1104, which provides that when a preterition is not
done in bad faith or with fraud, the partition shall not be Kinds of Substitution
rescinded, but the preterited heir shall be paid the value of (1) Simple or common – Art. 859
the share pertaining to her. The case should thus be (2) Brief or compendious – Art. 860
remanded to determine the value due to Delia. (3) Reciprocal – Art. 861
(4) Fideicommissary – Art. 863
Complete Statement of the Rule
An heir – whether compulsory, legal, or voluntary – Reality
transmits NOTHING to his heirs in case of There are actually only 2 kinds of substitution: (1) & (4);
 Predecease they are mutually exclusive & cannot co-exist. The other 2
 Incapacity are just variations.
 Renunciation
 Disinheritance Article 859. The testator may designate one or more
HOWEVER, rules of representation will apply – persons to substitute the heir or heirs instituted in case such
 In case of predecease or incapacity of compulsory or heir or heirs should die before him, or should not wish, or
should be incapacitated to accept the inheritance.
legal heirs, &
A simple substitution, without a statement of the cases to
 Disinheritance of legal heirs
which it refers, shall comprise the three mentioned in the
preceding paragraph, unless the testator has otherwise
Outline of Rules
Heir Type Predecease Incapacity Renunciation Disinheritance provided. (774)
Compulsory - Transmits nothing - Transmits nothing - Transmits
- Representation - No Representation nothing Causes of Simple Substitution (PRI)
- Representation
(5) Predecease of first heir
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 (6) Repudiation of first heir
(7) Incapacity of first heir
How Testator May Provide for Simple Substitution
(1) By specifying all 3 causes
(2) By merely providing for simple substation
Restricted Simple Substitution
The testator may limit the operation of simple substitution
by specifying only 1 or 2 causes.
Supposing the Substitute Dies Before the 1st Heir Manifests
His Renunciation, May the Successors of the Substitute
Acquire Testamentary Disposition?
Two views –
 YES, the substitute must have capacity to succeed.
o Art. 1034 – If the institution, devise or legacy
is conditional, the time of compliance with
the condition shall also be considered.
o A simple substitution is also a form of
conditional institution.
 NO, the substitute need not have capacity.
o Art. 1024 – The effects of acceptance or
repudiation of the inheritance shall always
retroact to the moment of the decedent’s
death.
o Art. 533 – One who validly renounces an
inheritance is deemed never to have
possessed the same.
Q: In his will, Romulo instituted the Society of Jesus as his
heir & his brother, Romulo, Jr. as its substitute. Romulo, Jr.
objected to the institution of the Society of Jesus as primary
heir on the ground that it is not a natural person & cannot
die. Is the objection valid or not? Explain.
A: The objection is not valid. First, even a juridical person
can have capacity to succeed. Second, the death of the
primary heir is not the only means by which there can be
substitution (e.g., there is still renunciation). Finally,
Romulo, Jr. has no vested rights over the property of
Romulo. In a simple substitution, the substitute’s right in the
testator’s inheritance only arises in default of the primary
heir instituted. Considering that Romulo, Jr. has not shown
that the Society of Jesus failed to succeed, Romulo, Jr. has
no enforceable right to the Society’s institution as heir.
Q: In his last will, Daniel instituted Ernesto to all his
properties, with Carlos as substitute heir. One day after
Daniel died, Ernesto also died. Will the properties go to
Carlos or the heirs of Ernesto?
A: Daniel’s properties will go to the heirs of Ernesto. In
cases of simple substitution, the substitution will only take
place in the event that the primary heir instituted predeceases
the testator. This is in line with the fact that succession at the
time of the testator’s death. Here, Ernesto, the primary heir,
died after Daniel. At the time of Daniel’s death, Ernesto was
still alive, & so the inheritance passed to Ernesto, not Carlos,
the latter being merely a substitute. As such, since simple
substitution did not take place, the heirs of Ernesto will get
the property.
Article 860. Two or more persons may be substituted for
one; & one person for two or more heirs. (778)
Technical Distinctions
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 Brief — two or more substitutes for one original heir
 Compendious — one substitute for two or more original
heirs
Brief & Compendious Substitution
This Article talks about brief & compendious substitution,
which may be either fideicommissary or simple.
Effect of Default in a Case Where 1 Substitutes 2 or more
Original Heirs
 If only 1 of the 2 heirs default, substitution will not
take place; the share left vacant will accrue to the
surviving co-heir/s.
 Substitution will take place only if ALL the
original heirs are disqualified.
 Ex.: X makes the ff. provision in his will: “I
institute to A & B 1/3 of my estate & nominate C
as their substitute.”
o If A predeceases B, the 1/3 portion will
accrue to B.
o There is no substitution by C.
 EXCEPTION: If the testator so provides that there
will be substitution in the event of the death,
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 acquire the
share of the heir who dies, renounces, or is incapacitated,
unless it clearly appears that the intention of the testator
was otherwise. If there are more than one substitutes, they
shall have the same share in the substitution as in the
institution. (779a)
Reciprocal Substitution
This Article talks about reciprocal substitution, which may
be either fideicommissary or simple.
Illustration of 2nd Sentence
A, B, & C are instituted, respectively, to ½, 1/3, & 1/6 of the
estate of X.
 If A predeceases X, B & C will acquire A’s ½ portion
in the proportion of 2:1 (their testamentary shares
being 1/3 and 1/6 respectively); so on, & so forth.
Q: A executed a will instituting B & C as heirs, with D as
their substitute. B & C figured in a car accident in which B
died immediately, while C laid in a coma for six months. A
died one month before C died.
Q1: Can D claim the inheritance from A?
A: No, D cannot claim the inheritance from A. The instant
case involves a compendious substitution, wherein 1 heir
substitutes 2 or more heirs in the event they ALL predecease
the testator, renounce, the inheritance or are incapacitated to
succeed. In the case at bar, only B predeceased the testator
A. There was no renunciation or incapacity on the part of C.
Thus, substitution by D cannot take place. The only
exception to this is if the testator expressly stipulated that D
will succeed in the event that any of the heirs (B or C)
predecease, renounce, or are incapacitated. Otherwise, as in
the case at bar, D cannot claim the inheritance.
Q2: Can D claim at the least the portion intended for B?
A: No, D cannot claim the portion intended for B. Since D’s
substitution did not take place, D did not become an heir for
all intents & purposes of the law. It is submitted that B’s
portion will go to C.
Article 862. The substitute shall be subject to the same
charges & conditions imposed upon the instituted heir,
unless –
1. The testator has expressly provided the contrary,
or
2. The charges or conditions are personally
applicable only to the heir instituted. (780)
*Article 863. A fideicommissary substitution by virtue of
which the fiduciary or first heir instituted is entrusted with
the obligation (1) to preserve & (2) to transmit to a second
heir the whole or part of the inheritance, shall be valid &
shall take effect,
 PROVIDED such substitution does not go
beyond one degree from the heir originally
instituted, &
 PROVIDED further, that the fiduciary or first
heir & the second heir are living at the time of the
death of the testator. (781a)
Elements of Fideicommissary Substitution
(121-22)
1. A 1st heir (fiduciary/fiduciario) who takes the property
upon the testator’s death
 Refers to the fiduciary who enters upon the
inheritance, like every other heir, upon the opening
of the succession (i.e., when the testator dies)
2. A 2nd heir (fideicommissary heir/Jideicomisario) who
takes the property subsequently from the fiduciary
 The fideicommissary heir does not receive the
property until the fiduciary’s right expires.
 NOTE: 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 inherit.
 NOTE: Though the fideicommissary 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
3. The 2nd heir must be 1 degree from the 1st heir
 Refers to the relationship – has to be within first
degree of fiduciary (i.e., child or parent)
4. The dual (2) obligation imposed upon the fiduciary to
(1) preserve the property and to (2) transmit it after the
lapse of the period to the fideicommissary heir
5. Both (2) heirs must be living & qualified to succeed at
the time of the testator’s death
 Must be met ONLY at the testator’s death; applies
not only to the fiduciary but to the 2nd heir as well.
 The 2nd heir MUST survive the 1st heir.
 If the 2nd heir dies before the 1st heir, the 2nd heir’s
own heirs merely take his place.
CASE: PALACIOS V. RAMIREZ
Facts: Jose died with only his widow, Marcelle, as his
compulsory heir. In his will, he gave properties to Marcelle,
his grandnephews, & his lover, Wanda. Wanda was the
fiduciary of the nephews in the enjoyment of a usufruct. The
nephews challenged the partitioning, particular in favor of
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Wanda, for being void because of violating the “one degree”
rule, since they, the fideicommissary heirs, are not related to
Wanda (the instituted fiduciary). Is this correct?
Held: YES. 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.
There is thus no absolute duty on the part of Wanda to
substitute herself in favor of the nephews.
CASE: VDA. DE ARAÑAS V. ARAÑAS
Facts: The testator instituted Vicente, a beloved nephew, as
the first heir, to be replaced subsequently by her brothers.
Valid?
Held: YES.
Balane: Why? It’s because this is not a fideicommissary
substitution, technically. In the will, Vicente was not given
the obligation to preserve the property & transmit it to the
2nd heir, a silence which negates the existence of a
fideicommissary substitution.
Essential Requisites of Fiduciaries
(1) Preserve the property
(2) Transmit the property
Important Rules for Fiduciaries
A fiduciary (1st heir) acquires nothing more than the
usufructuary rights over the same half; ownership belongs to
the fideicommissary
CASE: CRISOLOGO V. SINGSON
Facts: Leona died. In dispute is whether or not a clause in
her will was a vulgar or fideicommissary substituted. The
clause provided that Manuel & Consolacion would both
enjoy the property, & upon the death of Consolacion,
whether before or after the testator’s death, the property
would be delivered directly to Manuel & the other brothers.
Held: It is SIMPLE substitution. It is the essence of
fideicommissary substitution that an obligation be clearly
imposed upon the first heir to preserve & transmit the
property to another, upon his death or the happening of a
particular event. That is why such a substitution has no
effect unless it is made expressly, either by (1) giving it such
name or (2) imposing upon the first heir an absolute
obligation to deliver the inheritance to the substitute
The quote from the will shows that the substitution was not
of a clear fideicommissary kind; it merely provides for the
transfer of the property after he death.
CASE: PCIB V. ESCOLIN
Facts: Linnie died. In her will, she gave her husband,
Charles, the reminder of her estate for her husband’s natural
lifetime; he can sell the property and exercise all rights of
ownership over it, but when he dies, he must turn over
whatever is left of Linnie’s estate to her siblings. The will
stated that the property would be given to Linnie’s siblings
in the event that Charles died. How can you characterize this
type of institution?
Held: Linnie’s siblings are simultaneously instituted
alongside Charles, rather than fideicommissary heirs or heirs
under a typical, simple will.
When another heir is designated to inherit upon the death of
a first heir, the second designation 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
Charles did not die before Linnie, a simple substitution for
the siblings is void.
BUT this is not a plain simple substitution or a
fideicommissary one; it is simultaneous. The brothers and
sisters of Linnie are not substitutes for Charles because,
under her will, they are not to inherit what Charles cannot,
would not or may not inherit, but what he would not dispose
of from his inheritance; rather, therefore, they are also heirs
instituted simultaneously with Charles, subject, however to
certain conditions, partially resolutory insofar as Charles was
concerned and correspondingly suspensive with reference to
his brothers and sisters-in-law. It is partially resolutory, since
it bequeaths unto Charles the whole of her estate to be
owned and enjoyed 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 brothers and sisters-in-law to the
inheritance, although vested already upon the death of
Linnie, would automatically become operative upon the
occurrence of the death of Charles in the event of actual
existence of any remainder of her estate then.
Contrary to the view of respondents, however, it was not the
usufruct alone of Linnie’s estate, as contemplated in Art.
869, thatshe bequeathed to Hodges during his lifetime, but
thefull ownership thereof, although the same was to last also
during his lifetime only, even as there was no restriction
whatsoever against his disposing or conveying 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 ofCharles as the surviving spouse,
consisting of 1/2of the estate, considering that Linnie had no
surviving ascendants nor descendants.
Summary of Tenure of Fiduciary
 Primarily rule – the period indicated by the testator
(which may not exceed 20 years)
 Secondary rule – if the testator did not indicate a
period, then the fiduciary’s lifetime
Q: In his will, Manuel instituted Narda as his sole heir, with
the obligation to preserve property & transmit it to her first
child after her death. At the time, Narda was only 12 years
old. When Manuel died, however, Narda was already 20 & 5
months pregnant with her first child. Is there
fideicommissary substitution in this case? Why or why not?
A: There is a fideicommissary substitution. A
fideicommissary substitution by virtue of which a first heir
or fiduciary is entrusted with the obligation to preserve the
property & transmit the same to the 2 nd heir the whole or part
of the inheritance shall be valid provided that the
substitution does not go beyond one degree from the heir
originally instituted, & provided that both the 1 st & 2nd heir
are alive at the time of the testator’s death. In this case, all
requisites are met. Narda, the 1 st heir, had the obligation to
keep & preserve the property until her death, at which time
the property would be given by her to the 2 nd heir, her child.
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Though her child was not yet born at the time of Manuel’s
death, the Civil Code provides that an unborn child shall be
considered born for all intents & purposes favorable to it.
The child was thus already considered alive at this time.
Q: In his last will, Andres instituted Rodolfo as his sole heir
to his properties, with full authority to sell the same, & in the
event of Rodolfo’s death, the remainder of his estate to go to
his friends, Jesus, Mary & Joseph.
 Q1: Is this fideicommissary substation? Why or why
not?
 A1: There is no fideicommissary substitution. In a
fideicommissary substitution, the primary obligation
of the fiduciary or 1st heir is to preserve & keep the
property for the 2nd heirs. In this case, the 1 st heir,
Rodolfo, was already granted full authority to sell
Andres’ properties. There is thus no fideicommissary
substitution.
 Q2: Can Jesus, Mary & Joseph claim the balance
after Rodolfo’s death? Why or why not?
 A2: Yes, Jesus, Mary, & Joseph may claim the
balance after Rodolfo’s death. According to
jurisprudence, the lack of an absolute obligation to
preserve & transmit the inheritance to a 2 nd heir does
not render such institution of heirs void. There is
simply no fideicommissary substitution; there is,
instead, simultaneous institution (as seen in PCIB v.
Escolin). Rodolfo has the full right of ownership over
the property during his lifetime, with the condition
that, should some of the property remain when he
dies, such remainder will automatically pertain to
Jesus, Mary & Joseph.
Article 864. A fideicommissary substitution can never
burden the legitime. (782a)
Article 865. Every fideicommissary substitution must be
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to
the second heir, without other deductions than those which
arise from legitimate expenses, credits and improvements,
save in the case where the testator has provided otherwise.
(783)
Express Fideicommissary Substitution
(1) Use of the term fideicommissary, or
(2) Imposing upon the 1st heir the absolute obligation to
preserve & transmit to the 2nd heir
Allowable Deductions
GR: The fiduciary should deliver the property intact &
undiminished to the fideicommissary heir upon the arrival of
the period.
EXC: Only ff. deductions are allowed –
1. Legitimate expenses
 Necessary & useful expenses
 NOT ornamental expenses
2. Credits
3. Improvements
Damage or Deterioration to Property
 If caused by fortuitous event or ordinary wear & tear –
fiduciary is not liable
 If caused by fiduciary’s fault or negligence – fiduciary
is liable

Q: A executed a will instituting B as heir, with C as
substitute.
Q1: If B and C are first cousins, is the substitution valid or
not?
A: Yes, the substitution is valid. The substitution in the case
is a simple one, that is, the institution of an heir in default of
another heir. The substitution is not a fideicommissary
substitution, in which the 2nd heir (fideicommissary) must
be a relative within one degree of the 1st heir (fiduciary). For
the foregoing reasons, the substitution is valid.
Q2: If B should die after A, can C claim the inheritance?
A: NO. C cannot claim the inheritance. Simple substitution
takes place upon the ff. grounds:
(1) Where the 1st heir predeceases the testator,
(2) Where the 1st heir renounces the inheritance, &
(3) Where the 1st heir is incapacitated to succeed.
The case at bar does not contemplate any of the above listed
grounds. Therefore, C cannot inherit that which was
disposed of by the testator A. Since B (1st heir) died after
the testator A, at the moment of the testator’s death, the
inheritance passed by testamentary succession to B. It is
submitted that B’s heirs are the ones who can validly claim
the inheritance.
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)
Implication of Art. 866
 The 2nd heir’s rights vest upon the testator’s death
 The 2nd heir does not have to survive the first heir in
order for the substitution to be effective; the 2 nd heirs
own heirs simply take his place, and succeed to the
vested right already possessed by the 2nd heir
Q: A executed a will in which she bequeathed a house in
Baguio to B, with the obligation to pass it on upon her death,
free from all liens and encumbrance, to her daughter. Would
the substitution be valid if:
Q1: The daughter is born two years after the death of B?
A: No, the substitution is not valid. As a fideicommissary
substitution, it is not valid because the fiduciary and the
fideicommissary must both have the capacity to succeed at
the time of the testator’s death. Since the daughter was not
even yet conceived at the time of the testator’s death, she
had no legal capacity to succeed thereat. Thus, the
substitution is not valid.
Q2: The daughter is born before the death of A but dies
ahead of B?
A: Yes, the substitution is valid. The daughter as
fideicommissary has a vested right to the inheritance upon
the moment of the testator’s death. The fideicommissary
need not outlive the fiduciary. Thus, the daughter became a
fideicommissary heir upon the death of the testator A, but
since she (the daughter) died before the fiduciary B, it is her
(the daughter)’s heirs who will succeed upon the death of the
fiduciary B.
Article 867. The following shall not take effect:
(EPPI)
(1) Fideicommissary substitutions which are not made in an
Express manner, either by
(5) Giving them this name, or
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(6) Imposing upon the fiduciary the absolute
obligation to deliver the property to a second
heir;
(2) Provisions which contain a Perpetual prohibition to
alienate, & even a temporary one, beyond the limit fixed in
Art. 863;
(3) Those which impose upon the heir the charge of Paying
to various persons successively, beyond the limit prescribed
in Art. 863, a certain income or pension;
(4) Those which leave to a person the whole or part of the
hereditary property in order that he may apply or invest the
same according to secret Instructions communicated to him
by the testator. (785a)
(1) No Express Stipulation
This does not lead to the nullification of the institution; it
just means it’s not fideicommissary
(2) Limits to Substitution
 Fideicommissary substitution – the 1st heir’s lifetime
 No fideicommissary – 20 years
(3) Limit as to Beneficiaries
 There can only be 2 beneficiaries of the pension, one
after the other
 The 2nd must be 1 degree from the first
 BUT: There is no prohibition against simultaneous
beneficiaries
(4) Dummy
The substitute heir is only a dummy; the one who benefits
is the one to whom the secret instructions refer. This makes
the entire provision VOID.
Article 868. The nullity of the fideicommissary substitution
does not prejudice the validity of the institution of the heirs
first designated; the fideicommissary clause shall simply be
considered as not written. (786)
What Happens if the Fidecommissary Substitution is Void or
Ineffective?
It will be like it was not written.
What Happens if the Clause on the Fiduciary is Declared
Void?
The article provides no answer. But Balane believes that the
nullity or inefficacy of the institution of the fiduciary should
not nullify the institution of the fideicommissary heir;
instead, the right should become absolute & effective.
Article 869. A provision whereby the testator leaves to a
person the whole or part of the inheritance, & to another the
usufruct, shall be valid. If he gives the usufruct to various
persons, not simultaneously, but successively, the
provisions of Art. 863 shall apply. (787a)
Successive Usufructuaries
If the testator institutes successive usufructuaries, there can
only be 2 of them one after the other. As to the 2 of them, all
requisites of Art. 863 must be present.
Article 870. The dispositions of the testator declaring all or
part of the estate inalienable for more than 20 years are
void. (n)
Fideicommissary Substitution
If there is fideicommissary substitution, this provision will
not apply. Art. 863 (i.e., lifetime of the 1 st heir) will govern
the period.
CASE: Vda. de Arañas v. Arañas
Facts: When Vda. de Arañas died, she divided her properties
to her siblings, but left a specific portion for the usufruct of
her beloved nephew, stating that after his death, the
properties can be turned over to her brothers. Her brothers
claimed that the nephew had already been enjoying the
property for 20 years; thus, he already had to turn it over. Is
this correct?
Held: NO. This is a fideicommissary substitution, which will
not rely on the 20-year prescription period. A fiduciary can
hold on to the property until the end of his life, & is not
subject to the 20-year limitation.
SECTION 4.
Conditional Testamentary Dispositions & Testamentary
Dispositions With a Term
GENERAL PROVISIONS
Article 871. The institution of an heir may be made
 Conditionally, or
 For a certain purpose or cause. (790a)
Three Kinds of Testamentary Dispositions in this Section
1. Conditional dispositions
2. Dispositions with a term
3. Dispositions with a mode (modal dispositions)
Definitions
1. Condition – makes the performance of an obligation
dependent upon a future or uncertain event, or upon a
past event unknown to the parties (Art. 1179, par. 1)
2. Term – makes the performance of an obligation
dependent on a day certain which has been fixed
(Art. 1193)
 A day certain is understood to be that which
must necessarily come, although it may not
be known when.
3. Mode – Art. 882
 The statement of the object of the institution,
or the application of the property left by the
testator, or the charge imposed by him, shall
not be considered as a condition unless it
appears that such was his intention.
 That which has been left in this manner may
be claimed at once provided that the instituted
heir or his heirs give security for compliance
with the wishes of the testator & for the
return of anything he or they may receive,
together with its fruits & interests, if he or
they should disregard this obligation.
Why Testators Can Place Conditions, Terms or Modes on
their Wills
Testamentary freedom gives the testator the right to dispose
his estate according to his will.
Article 872. The testator cannot impose any charge,
condition, or substitution whatsoever upon the legitimes
prescribed in this Code. Should he do so, the same shall be
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considered as not imposed. (813a)
CONDITIONS
Article 873. Impossible conditions & those contrary to law
or good customs shall be considered as not imposed & shall
in no manner prejudice the heir, even if the testator should
otherwise provide. (792a)
Effect of Impossible Conditions
The testamentary disposition itself will not be annulled;
instead, it will be considered pure or unconditional.
 Same rule in donations – they are similar because
they are both gratuitous & liberality is the basis of
the grant
 Different in obligations – impossible conditions in
obligations shall annul the obligation; consistent with
onerous nature of obligations
Case:
Facts: The will of Joseph stated –
"Although by law I am a Turkish citizen...having
resided for a considerable length of time in the
Philippines where I succeeded in acquiring all of
the property that I now possess, it is my wish that
the distribution of my property, my will, be made
and disposed of in accordance with the laws in
force in the Philippines, requesting all of my
relatives to respect this wish; otherwise, I annul
whatever disposition found in this will favorable to
the person/s who fail to comply with this request."
Does this will contain a condition?
Held: YES. The institution in this will is conditional, & the
condition is that the instituted legatees must respect the
testator's will to distribute his property, not in accordance
with the laws of his nationality, but in accordance with the
laws of the Philippines. However, the SC held that this
condition is void, being contrary to law, for Art. 792
provides, "Impossible conditions and those contrary to law
shall be considered as not imposed and shall not prejudice
the heir or legatee in any manner whatsoever, even should
the testator otherwise provide." And said condition is
contrary to law because it expressly ignores the testator's
national law, according to Art. 10 ("Nevertheless, legal and
testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights
& the intrinsic validity of their provisions, shall be regulated
by the national law of the person whose succession is in
question, whatever may be the nature of the property or the
country in which it may be situated."). Thus, the condition is
considered unwritten, & the institution of legatees is
unconditional & valid, even as to Andre (who opposed on
the ground that Turkish laws apply). All of the remaining
clauses are valid.
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
o By the deceased spouse, or
o By the latter's ascendants or descendants.
Nevertheless –
 The right of usufruct, or
 An allowance or
 Some personal prestation
may be devised or bequeathed to any person for the time
during which he or she should remain unmarried or in
widowhood. (793a)
Conditions Prohibiting Marriage
A. General Rule
 If a 1st marriage is prohibited – condition is always
considered not imposed
 If a subsequent marriage is prohibited –
o If imposed by the deceased spouse or his or
her ascendants or descendants – valid
o If imposed by anyone else – considered not
written
B. Usufruct, Allowance or Personal Prestation
 This is technically a way to bypass the 1 st par., but it
should not be so worded to constitute the prohibition
under par. 1
 Can apply to 1st or subsequent marriages
C. Condition to Marry
 The Art. does not prohibit the imposition of a
condition to marry (either with reference to a
particular person or not)
D. Relative Prohibitions
 The provision does not declare void a relative
prohibition
Q: Can the will of the testator state that his daughter cannot
marry a Japanese man, or that she cannot marry a man
younger than her for 5 years or more?
A: If the daughter violates the condition, the other heirs may
file suit against her to get her share back; she may also be
required to post a bond or security to ensure compliance.
Q: A institutes his daughter B as his sole heir, provided that
she will never marry a lawyer. Is the condition valid or not?
A: Yes, the condition is valid. It is in the nature of a relative
prohibition. What the Civil Code proscribes is an absolute
prohibition to contract a first marriage, unless made by the
widower or widow.
Article 875. Any disposition made upon the condition that
the heir shall make some provision in his will in favor of
the testator or of any other person shall be void. (794a)
Scriptura Captatoria (Legacy-Hunting Dispositions)
Legacy-hunting dispositions, whether to heirs or legatees,
are void.
Reasons for Prohibition
1. It 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.
What is Declared Void
The testamentary disposition which contains the disposition
is void
 NOT JUST the condition
What if the Testamentary Disposition Requires a Donation
Intervivos in Favor of the Testator or a Third Person?
Balane thinks this should still be prohibited.
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Q: What is meant by Scriptura Captatoria?
A: Scriptura Captatoria refers to a legacyhunting
disposition, that is, a testamentary disposition made in favor
of another in consideration of such heir executing a
testamentary disposition in favor of the testator or a 3rd
person. The same is void the whole disposition and not just
the condition.
Article 876. Any purely potestative condition imposed
upon an heir must be fulfilled by him as soon as he learns
of the testator's death.
This rule shall not apply when the condition, already
complied with, cannot be fulfilled again. (795a)
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, &
 That in case of contravention he will return
whatever he may have received, together with its
fruits & interests. (800a)
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.
Potestative, Causal & Mixed Conditions
 Potestative Condition – one that depends solely on
the will of the heir, legatee or devisee
 Causal 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 or legatee & partly on the
will of either a third person or chance
Rules for Potestative Conditions
 Positive (Art. 876)
General Must be fulfilled as soon as the
Rule heir learns of the testator’s death
Exception 1. If the condition was already
complied with at the time the
heir learns of the testator’s
death &
2. If the condition is of such a
nature that it cannot be
fulfilled again
Effect of Condition is deemed fulfilled
Constructive
Compliance
 Negative (Art. 879)
o The heir must give security to guarantee
(caucion muciana) the return of the value of
property, fruits, & interests, in case of
contravention
Q: In what instances is Caucion Muciana required?
A: Caucion Muciana (the security to guarantee compliance
with obligations, the contravention of which would give rise
to an obligation to return the fruits and proceeds of the
disposition) is required in:
1. Ensuring compliance with negative potestative
conditions (Art. 879);
 2. Testamentary dispositions with a suspensive term  If condition happens – property is turned over to
(Art. 885); & the instituted heir
3. Ensuring compliance with modal obligations (Art.  If it becomes certain the condition will not happen
882). – the property will be turned over to
o A secondary heir, if there is one, or
Article 877. If the condition is casual or mixed, it shall be o The intestate heir
sufficient if it happen or be fulfilled at any time before or
after the death of the testator, Not Applicable to Institutions with a Term
 UNLESS he has provided otherwise. The above does not apply to institutions with a term, despite
Should it have existed or should it have been fulfilled at the the wording of the Art.
time the will was executed & the testator was unaware
thereof, it shall be deemed as complied with. Second Par. of Art. 880
If he had knowledge thereof, the condition shall be The property will be in the executor’s or administrator’s
considered fulfilled only when it is of such a nature that it custody until the heir furnishes the caucion muciana.
can no longer exist or be complied with again. (796)
Article 881. The appointment of the administrator of the
Article 883, par. 2. If the person interested in the condition estate mentioned in the preceding article, as well as the
should prevent its fulfillment, without the fault of the heir, manner of the administration & the rights & obligations of
the condition shall be deemed to have been complied with. the administrator shall be governed by the Rules of Court.
(804a)
Rules for Causal or Mixed Conditions (Art. 877)
 GR: May be fulfilled at any time before or after the Rules Governing Appointment of Administrator
testator’s death This would be Rules 77-90, Revised Rules of Court.
 EXC: The testator otherwise provides
 Qualifications Article 884. Conditions imposed by the testator upon the
o If already fulfilled at the time of the execution heirs shall be governed by the rules established for
of the will – conditional obligations in all matters not provided for by
If the testator is Deemed fulfilled this Section. (791a)
unaware of the
fact of Civil Code Provisions
fulfillment Refer to Art. 1179-1192.
If testator is Depends –
aware thereof 1. If it can no longer be TERMS
fulfilled again –
deemed fulfilled Article 878. A disposition with a suspensive term does not
2. If it can be fulfilled prevent the instituted heir from
again – must be  Acquiring his rights &
fulfilled again  Transmitting them to his heirs even before the
arrival of the term. (799a)
 Constructive Compliance (Art. 883, par. 2)
o If causal – not applicable When Heir’s Right Vests When There is a Term
o If mixed – In dispositions with a term, the heir’s right vests upon the
testator’s death.
If dependent Not applicable
partly on chance  IF the heir dies before the arrival of the suspensive
If dependent 1. If third party is an term, he merely transmits his right to his own heirs
partly on the interested party – who can demand the property when the term arrives.
will of a 3rd applicable  Rule is similar to Art. 866 (fideicommissary
party 2. If third party is not an substitutions)
interested party – not
applicable Rule on Conditional Institutions
 The law is silent.
Article 880. If the heir be instituted under a suspensive  But see: Art. 1034, par. 3 – If the institution, devise,
condition or term, the estate shall be placed under or legacy should be conditional, the time of the
administration until – compliance with the condition shall also be
 The condition is fulfilled, or considered.
o What do we get from this provision?
 It becomes certain that it cannot be fulfilled, or
 The arrival of the term. Their should be both living & qualified to
succeed both:
The same shall be done if the heir does not give the security
1. At the time of the testator’s death &
required in the preceding article. (801a)
2. At the time of the happening of the
condition.
What Happens to the Property
Between the time of the testator’s death & the time of the
Article 885. The designation of the day or time when the
fulfillment of the suspensive condition or certainty of its
effects of the institution of an heir shall commence or cease
non-occurrence – placed under administration

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shall be valid.
In both cases, the legal heir shall be considered as called to
the succession until the arrival of the period or [from] its
expiration. But in the first case he shall not enter into
possession of the property until after having given
sufficient security, with the intervention of the instituted
heir. (805)
If the Term is Suspensive
Before the arrival of the term, the property should be
delivered to the intestate heirs.
 A Caucion Muciana has to be posted.
If the Term is Resolutory
Before the arrival of the term, the property should be
delivered to the instituted heir.
 No Caucion Muciana is required.
Q: Who has possession of the property if there is a
suspensive term or condition?
A: In a suspensive condition, the property is placed under
administration and not placed with the intestate heirs. But if
the property is subject to a suspensive term, the property can
be given to the intestate heirs, and when they return the
property, they give it to the rightful heir.
Q: If the condition or term is resolutory, who gets the
property at the death of the testator?
A: The heir acquires it upon death.
MODES
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
 PROVIDED that the instituted heir or his heirs give
security
o For compliance with the wishes of the
testator &
o For the return of anything he or they may
receive, together with its fruits & interests, if
he or they should disregard this obligation.
(797a)
What’s a Mode?
A mode is an obligation imposed upon the heir, without
suspending (as a condition does) the effectivity of an
institution.
 A mode must clearly be imposed as an obligation
in order to be considered as one. Mere preferences
or wishes expressed by the testator are not modes.
 A mode functions like a resolutory condition.
What is Stated by the Testator in Modal Institutions
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.
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CASE: RABADILLA V. CA
Facts: Jorge was instituted as a devisee of a parcel of land in
Bacolod. In the codicil wrote, the decedent stated that,
should he die & Jorge receive the property, Jorge shall have
the obligation to give Maria 75 piculs of export sugar until
the day Maria dies. Jorge’s heir, according to the codicil,
would be subject to the same obligaton. It even stated that,
should the property be transferred to another (via sale, lease,
or mortgage), the transferee would have the same obligation.
Otherwise, the codicil continued, Maria would have the right
to seize the property & turn the property over to the
decedent’s nearest descendants.
Jorge died & was survived by his wife & kids, one of them
being Johnny, the petitioner. The property was mortgaged to
two banks. Neither the heirs nor the banks, however,
delivered sugar to Maria.
Maria, the woman mentioned in the codicil, instituted an
action to enforce the provisions of the codicil. Was the
institution modal?
Held: YES. The institution was modal, as opposed to
conditional.
1. A “mode” imposes an obligation upon the heir or
legatee but it does not affect the efficacy of his
rights to the succession. On the other hand, in a
conditional testamentary disposition, the condition
must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition
suspends but does not obligate; & the mode
obligates but does not suspend. To some extent, it
is similar to a resolutory condition.
2. From the provisions of the Codicil litigated upon,
it can be gleaned that the testatrix intended that
subject property be inherited by Jorge. It is
likewise clear that the testatrix imposed an
obligation on Jorge & his successors-in-interest to
deliver sugar to Maria, during the lifetime of the
latter. However, the testatrix did not make Jorge’s
inheritance & the effectivity of his institution as a
devisee dependent on the performance of the said
obligation. It is clear, though, that should the
obligation be not complied with, the property shall
be turned over to the testatrix’s near descendants.
The manner of institution of Jorge 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.
Q: What is the meaning of the phrase “a condition suspends
but does not oblige, while a mode obliges but does not
suspend”?
A: A modal institution institutes the heir immediately (it
does not suspend), subject only to the resolutory condition of
fulfillment of the modal obligation, if clearly intended. If the
heir is obliged to comply with the mode, his institution is
taken away.
On the other hand, a condition can either be casual,
potestative, or mixed. Casual conditions are up to a 3 rd
party’s action or the happening of an event which the heir
cannot control. There is no obligation in a casual condition.
A potestative condition is dependent on the sole will of the
heir the heir may or may not do it, thus there is also no
obligation in such a condition. In both cases, as well as in the
case of a mixed condition, the institution is suspended, and is
only effective if the conditions are fulfilled.
In conditional institutions, the heir MAY fulfill; the
condition (potestative) or wait (casual) in order to be  Are not excluded by those in Nos. 1 & 2;
instituted, while in modal institutions, the heir HAS TO  Neither do they exclude one another.
comply with the mode (an obligation) in order not to lose the In all cases of illegitimate children, their filiation must be
inheritance to which he is instituted. duly proved.
The father or mother of illegitimate children of the three
Article 883, par. 1. When without the fault of the heir, an classes mentioned, shall inherit from them in the manner &
institution referred to in the preceding article cannot take to the extent established by this Code. (807a)
effect in the exact manner stated by the testator, it shall be
complied with in a manner most analogous to and in Three Types of Compulsory Heirs
conformity with his wishes. (798a) (1) Primary compulsory heirs — legitimate children
&/or descendants (No. 1)
FINALS COVERAGE a. They are so called because they are preferred
over, & exclude, the secondary.
SECTION 5. Legitime (2) Secondary compulsory heirs — legitimate parents
&/or ascendants; illegitimate parents (No. 2)
*Article 886. Legitime is that part of the testator’s property a. They receive legitimes only in default of the
which he cannot dispose of because the law has reserved it primary.
for certain heirs who are, therefore, called compulsory heirs. Legitimate Only in default of
(806) parents or legitimate children or
ascendants descendants
System of Legitimes Illegitimate Only in default of any
The successional system reserves a portion of the net estate parents kind of children or
of the decedent in favor of certain heirs, or groups of heirs, descendants
or combination of heirs.
 The portion reserved is the legitime (3) Concurring compulsory heirs — surviving spouse;
 These heirs are called compulsory heirs illegitimate children &/or descendants (No. 3, 4, 5)
o The compulsion is not on the part of the heirs  They succeed as compulsory heirs together
(who are free to accept or reject the with primary or secondary heirs
inheritance) but on the part of the testator.  EXCEPT: Illegitimate children or
 The portion left available for testamentary descendants exclude illegitimate parents
disposition after the legitimes have been covered is
the free or disposable portion Widows or Widowers in the Old Civil Code
Widows & widowers only got usufructuary rights in the old
Testator Cannot Gratuitously Dispose of Legitime Civil Code; now, they may inherit.
The testator is prohibited from disposing by gratuitous title
(via inter vivos or mortis causa) of these legitimes. Compulsory Heirs
 Onerous dispositions are allowed 1. Legitimate children
o When the disposition is for valuable (1) Arts. 164 & 54 of the Family Code
consideration, there is no diminution of the (2) Legitimated children (Art. 179)
estate but merely a substitution of values, i.e., (3) Adopted children in relation to adopters
the property sold is replaced by the equivalent 2. Legitimate descendants
monetary consideration.  GR: The nearer exclude the more remote
o Children, if all qualified, will exclude
Q: Why does the law step in and put a limit to what a testator grandchildren, & so on.
may dispose of? o The qualification to this rule is representation
A: The limitation is set up for the benefit of those who are (succession per stirpes), when proper.
compulsory heirs. 3. Legitimate parents
 Includes the adopter, who replaces the legitimate
*Article 887. The ff. are compulsory heirs: parents
(1) Legitimate children & descendants, with respect to their 4. Legitimate ascendants
legitimate parents & ascendants;  Only in default of parents
(2) In default of the foregoing, legitimate parents &  Absolute in the ascending line — the nearer exclude
ascendants, with respect to their legitimate children & the more remote
descendants; 5. Surviving spouse
(3) The widow or widower;  Refers to the spouse of the decedent
(4) Acknowledged natural children, & natural children by  NOT the spouse of a child who predeceased the
legal fiction; decedent
(5) Other illegitimate children referred to in Art. 287. 14  CASE: ROSALES V. ROSALES
Compulsory heirs mentioned in Nos. 3, 4, & 5 o Facts: Irenea is the daughter-in-law of
deceased Petra. She claims that she should get
14
Art. 287. Illegitimate children other than natural in accordance with Art. a share in her capacity as the surviving spouse
269 & other than natural children by legal fiction are entitled to support & of Irenea’s late son, Carterio. Is her claim
such successional rights as are granted in this Code. (n)
Art. 269. Only natural children can be legitimated. Children born outside
cavlid?
wedlock of parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other, are natural. (119a)
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 o Held: NO. Intestate or legal heirs are  There are no longer distinctions as to types of
classified into 2 groups, namely, those who illegitimate children because of the Family Code.
inherit by their right, & those who inherit by  If the death of the decedent occurred before the
the right of representation. An intestate heir effectivity of the Family Code (Aug. 3, 1988), the old
can only inherit either by his own right, as in distinctions apply & a spurious child will get only
the order of intestate succession provided for 4/5 of the share of a natural one
in the Civil Case, or by the right of  The representation of legitimate v. illegitimate
representation in Art.981 of the same law. children
There is no provision in the Civil Code which Legitimate Children Illegitimate Children
states that a widow (surviving spouse) is an Can be represented only Can be represented by
intestate heir of her mother-in-law. If the be legitimate both legitimate &
legislature intended to make the surviving descendants illegitimate descendants
spouse an intestate heir of the parent-in-law, 7. Illegitimate descendants
it would have so provided. It is Irenea’s son,  The nearer exclude the more remote, without prejudice
Macikequerox, who has a right of to the right of representation when proper
representation as to his father. He will be 8. Illegitimate parents
succeeding on behalf of his father, from his
grandmother, Petra. He thus succeeds from
Petra, & not his father.
 Marriage should be either valid or voidable
o If voidable, there should have been no final
decree of annulment at the time of the
decedent’s death
o If the spouse dies before the voidability of
the marriage is confirmed, the court may
still proceed to determine whether or not
the marriage was actually voidable (Cariño
v. Cariño)
 Mere estrangement is not a ground for the
disqualification of the surviving spouse as heir
 Effect of decree of legal separation
o On the offending spouse –
disqualification
o On the innocent spouse – nothing
 Death of either spouse during the pendency of a
legal separation case results in dismissal
O CASE: LAPUZ V. EUFEMIO
 Facts: Carmen found out her
husband was cohabiting with
another woman abroad, among
others. She filed an action for
legal separation. However, she
died in a car accident pending the
suit. Her husband filed a motion
to dismiss. Will it prosper?
 Held: YES. The right to the
dissolution of the conjugal
partnership of gains (or of the
absolute community), 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 are vested
exclusively in the persons of the
ALONE:
spouses; and by their nature and 1. LC – ½ of the estate
intent, such claims and 2. LP – ½ of the estate
disabilities are difficult to 3. IC – ½ of the estate
4. IP – ½ of the estate
conceive as assignable or 5. SS – ½ or 1/3 of the estate (depending on Art. 900)
transmissible.
o The legal separation case is dismissed
ONLY CONCURRING:
whether it is the offending or innocent 1. SS + IC – 1/3 of the estate
spouse who dies. 2. SS + IP – ¼ of the estate
6. Illegitimate children
SYMBOLS:
 SS – Surviving Spouse
Katrina C. Gaw (with help from Jet & Daph Digests, J. Hofi’s
 Quizzes, Clavano’s
IC – Illegitimate Diagram) | Block C 2018 | Succession | 55
Child
 LC – Legitimate Child

Note: If the legitime given to ICs exceed the value of the estate, there will be
reduction of legitimes.
  Unlike the legitimate ascending line, which includes spouse is preferred over the
ascendants of whatever degree, the illegitimate share of the illegitimate
ascending line is ONLY for parents children, so that the latter’s
 Illegitimate parents are secondary heirs of a lower may be reduced when
category to legitimate parents, because the necessary.
illegitimate parents are excluded by BOTH legitimate Legitimate parents alone ½ of the estate
& illegitimate children (Art. 889)
Legitimate parents & ½ of the estate – legitimate
General Rule of Legitimary Portions illegitimate children (Art. parents
There is always a basic ½ quota given to one heir or group of 896) ¼ of the estate – illegitimate
heirs. children
 EXCEPTIONS: Legitimate parents & ½ of the estate – legitimate
o Art. 894 – surviving spouse & illegitimate surviving spouse (Art. 893) parents
children ¼ of the estate – surviving
o Art. 900, par. 2 – surviving spouse in a spouse
marriage articulo mortis, with the conditions Legitimate parents, ½ of the estate – legitimate
specified in the Art. illegitimate children & parents
o Art. 903 – surviving spouse & illegitimate surviving spouse (Art. 899) ¼ of the estate – illegitimate
parents children
1/8 of the estate – surviving
The Clavano Diagram: Legitime Edition spouse
Surviving spouse alone ½ of the estate
Variations in the Legitimary Portions (Art. 900)
Compulsory Heirs Share of Estate OR
Legitimate children alone ½ of the estate divided
(Art. 888) equally
1/3 of the estate if the
Legitimate children & ½ - legitimate children marriage is in articulo
surviving spouse (Art. 892, Share equal to that of one mortis
par. 2) child – surviving spouse Surviving spouse & 1/3 of the estate – surviving
One legitimate child & one ½ of the estate - legitimate illegitimate children (Art. spouse
surviving spouse (Art. 892, child 894) 1/3 of the estate –
par. 1) ¼ of the estate - spouse illegitimate children
Legitimate children & ½ of the estate divided Surviving spouse & ¼ of the estate – surviving
illegitimate children (Art. equally - legitimate children illegitimate parents (Art. spouse
176, Family Code) ½ of share of legitimate 903) ¼ of the estate – illegitimate
child – illegitimate children parents
Legitimate children, ½ of the estate divided Illegitimate children alone ½ of the estate
illegitimate children & equally - legitimate children (Art. 901)
surviving spouse (Art. 895) Illegitimate parents alone ½ of the estate
½ of the share of each (Art. 903)
legitimate child –
illegitimate Can Adopted Children Inherit from Biological Parents?
(Two Views)
Share equal to that of one 1. YES – In order for this right to exist, a provision of
child – surviving spouse* law must grant it (but the present Family Code does
not)
 The new law intends to sever all ties between
*Share of the surviving
the adopted & biological family
spouse is preferred over the
2. NO – The repealing clause of the new law does not
share of the illegitimate
explicitly repeal the provision in the old law, which
children, so that the latter’s
gave the adopted child the right to adopt from both
may be reduced when
biological & adoptive parents
necessary.
One legitimate children, ½ of the estate - legitimate
Inclusions to Terms
illegitimate children & child
surviving spouse (Art. 895)  “Legitimate child” – in proper cases, includes
legitimate descendants other than children
½ of the share of each  “Legitimate parents” – In proper cases, includes
legitimate child – legitimate ascendants other than parents
illegitimate
CASE: BARITUA V. CA
¼ of the estate – surviving Facts: Bienvenido died in an accident where his tricycle was
spouse* hit by a bus. His wife, Alicia, from whom he had been
estranged from, entered into an extrajudicial settlement with
*Share of the surviving the bus company & its insurer, waiving all future claims.

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Bienvenido’s parents, however, filed a complaint for
damages against the bus company & its insurer, claiming
that they had paid for their son’s funeral expenses & that
they were the ones who bought the tricycle damaged by the
accident. Will the action prosper?
Held: NO. Obligations are extinguished by various modes,
including payment. The parents of the deceased succeed
only when the latter dies without a legitimate 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 & that they begot a child, the parents are
not Bienvenido’s compulsory heirs. The petitioners therefore
acted correctly in settling their obligation with Alicia as the
widow of Bienvenido & as the natural guardian of their lone
child. This is so even if Alicia had been estranged from
Bienvenido. Mere estrangement is not a legal ground for the
disqualification of a surviving spouse as an heir of the
deceased spouse.
CASE: DE APARICIO V. PARAGUYA
Facts: Consolacion is the child of Trinidad (who married
Anastacio) & a priest, Fr. Lumain. Fr. Lumain, in his last
will, acknowledged Consolacion as his daughter & instituted
her as the sole & universal heir of all his property rights.
Consolacion maintains that she is entitled to inherit Fr.
Lumain’s property on the ground that she had been
recognized as daughter of the latter. Parugaya maintains that
Consolacion is not entitled to inherit for the reason that she
is an adulterous child. Does Consolacion have a right to
inherit Fr. Lumain’s property?
Held: YES. Trinidad was single on the date Consolacion was
conceived. It is a legal presumption that Consolacion is the
daughter of Trinidad & Anastacio, but this presumption is
disputable & was successfully overcome by Trinidad. The
SC declares that Consolacion is a natural child of Fr. Lumain
& that she was acknowledged by the latter as his own child.
Even in the remote possibility that Consolacion is not a
natural child of Fr. Lumain, Consolacion is under the will
entitled to claim the disputed property, she having been
instituted as universal heir.
HOWEVER, Consolacion cannot inherit the property of Fr.
Lumain's brother Macario, since under Art. 943 of old Civil
Code, "A natural or a legitimated child has no right to
succeed ab intestato the legitimate children and relatives of
the father or mother who has acknowledged it; nor shall such
children or relatives so inherit from the natural or
legitimated child."
Thus, Consolacion and Macario became co-owners of the
properties left by Fr. Lumain's & Macario's parents;
Consolacion owns 1/2 and the other 1/2 belongs to the heirs
of Macario. The SC also did not rule on the contention that
Consolacion was a legitimate child; since Fr. Lumain died
without any compulsory heir, he was free to dispose by will
of all his estate in favor of any person having capacity to
succeed, i.e., Consolacion.
Q: What if the testator has a wife and children, what will
their shares be of an inheritance of P1,000,000?
A: Each one, wife & 4 children, will receive P125,000. The
children will get half of the estate & divide this among
themselves; this means they will divide among the 4 of
them, giving them each P125,000 from P500,000.
Meanwhile, the wife will get a share of the estate equal to
the children – thus, she will also get P125,000 from the
remaining free portion of the estate.
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Q: What if all children (who already have their own
children, numbering 8) renounce their inheritance; who will
get the legitime?
A: Since there is a renunciation, there will be no right of
representation. However, all the grandchildren may inherit
the legitime in their own right. In a P1,000,000 inheritance,
each grandchild will get P62,500.
Q: There are 5 legitimate children & 2 illegitimate children,
the estate being P1,000,000 in total. What is the legitime of
each child?
A: The legitime for the legitimate children will be P500,000,
giving them each P100,000. Meanwhile, each illegitimate
child will get ½ of what each legitimate child gets. Thus,
each illegitimate child gets P50,000.
Q: Supposed that instead of 2 illegitimate children, the
testator has 4 illegitimate children, with 5 legitimate
children; how is it divided amongst them now?
A: Each illegitimate child can still get P50,000, & each
legitimate child P100,000.
Q: Is it possible, after giving shares to compulsory heirs, that
there is no more free portion left?
A: YES. It is possible that dividing amongst the compulsory
heirs, there will no longer be a free portion at all.
Q: If the spouse has more illegitimate kids than he can give
free portions to, what happens? For example, there are 12
illegitimate children, and 10 legitimate children. Who will it
be given to?
A: The legitimate children will get the P500,000 as
mandated by law. Meanwhile, each of the illegitimate
children will just get less than ½ of the share given to the
legitimate children. In other words, the legitimate children
will be prioritized.
Q: What if the mother’s grandmother is dead; how will
P1,000,000 be divided?
A: The deceased father’s parents get P250,000 collectively
(& each will get P125,000), while the mother’s sole
remaining parent will get the total P250,000. This is because
the division will be by line (the mother’s line & the father’s
line).
Q: What if the testator is an illegitimate child?
A: If the testator is an illegitimate child & the parents
survive alone, the parents get ½ of the estate.
Q: If the parents predecease the illegitimate child, may the
ascendants claim?
A: NO. The law provides that only legitimate parents may
claim; the law does not speak of ascendants when it speaks
of illegitimate children.
Q: If the testator has an illegitimate child, may the parents of
the testator inherit?
A: The parents will inherit; only the legitimate child can bar
the parents from inheriting.
Q: What if the testator is the illegitimate child of his father,
and at the time of his death, he has illegitimate children on
his own? Is the inheritance of the ascendants barred?
A: It will not be barred. Only legitimate children bar.
Illegitimate children concur with ascendants.
Q: Can the legitimate son of my illegitimate son represent
him in inheriting from?
A: YES.
Q: Can his legitimate son represent him?
A: If they’re both illegitimate they can.
Q: If your illegitimate son has a legitimate son, will you be
barred?
A: Yes.
Q: Suppose my son has an illegitimate son, who has a son of
his own. Can the illegitimate son represent him?
A: Yes. An illegitimate son can be represented by an
illegitimate son. But a legitimate son can only be represented
by a legitimate son, and not illegitimate sons.
Thus, there are two points of differences between legitimate
and illegitimate children.
The legitimate father can be barred only by a legitimate
grandson. He cannot be barred by an illegitimate son.
The illegitimate parent is barred by an illegitimate son.
In the right of representation, the legitimate parent may only
be represented by his legitimate son. But the illegitimate son
may be represented by either illegitimate or illegitimate
sons.
Q: If the legitimate children survive alone, how much is their
legitime?
A: ½ of the estate.
Q: If the legitimate parents survive alone, what is their
legitime?
A: ½ of the estate.
Q: If the illegitimate children survive alone, what is their
legitime?
A: ½ of the estate.
Q: If the spouse survives alone, what is the rule?
A: As a general rule, they will get ½. But there are
exceptions; the spouse may only get 1/3 if –
1. The marriage was made in articulo mortis
2. Testator dies within 3 months
3. They have not cohabited for 5 years
Q: What is meant by marriage articulo mortis?
A: Marriage in a life or death situation, as enumerated in the
Family Code. An example would be in a warzone, or the
plane is about to crash, & the husband & wife get married
before the final crash.
Another example is where one of them is suffering from a
fatal sickness.
Q: What if the testator dies 3 months & 1 day after? How
much will the surviving spouse receive?
A: ½ instead of 1/3.
Q: What if the testator & the spouse cohabit for 5 years?
A: ½ instead of 1/3 will be given.
Article 888. The legitime of legitimate children and
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descendants consists of ½ of the hereditary estate of the
father & of the mother.
The latter may freely dispose of the remaining half, subject
to the rights of illegitimate children & of the surviving
spouse as hereinafter provided. (808a)
Sharing in Equal Parts
 The legitimate children share the ½ in equal parts,
regardless of age, sex, or marriage of origin
Descendants Other than Children
 GR: The nearer exclude the more remote
 Grandchildren cannot inherit, since the children will
bar them
o UNLESS: all the children renounce; in that
case, the grandchildren become the nearest in
degree
 This rule goes down the line to great
grandchildren, etc.
 There is no limit on those who may be called to
succeed down the descending line, whether this be
by right or by representation
Q: The testator has 4 children. Each of his 4 children have 2
grandchildren. When the testator dies, who will get the
inheritance?
A: The children will get the inheritance, not the
grandchildren (i.e., the descendants). Those who are nearer
are favored & exclude the further heirs.
Q: Supposed that the oldest child predeceases the testator.
Can the children of this oldest child inherit, given that there
are 3 other kids?
A: The children of the oldest child have a right of
representation. They may represent their parent in the
distribution of the testator’s estate.
Q: Suppose that the 3rd child renounces his share the estate.
Can his children inherit from the testator?
A: NO. Renunciation cannot lead to the right of
representation.
Q4: Supposed each grandchild also has children. Can the
children of the grandchildren inherit in the presence of the
other heirs?
A: NO. The nearer heirs exclude the later heirs.
Q5: What about if the grandchildren die?
A: They inherit by the right of representation, but not by
their own merit. The result is that they cannot divide the
legitime between themselves equally.
Q6: How far down can you go through representation?
A: There is no limit; the only limit there is human mortality.
Q7: What about in the Philippine culture, where we have the
inaanak? Does the inaanak inherit as a compulsory heir?
A: NO. They are not part of the enumeration in the Civil
Code. They are not necessarily blood relatives of the testator
either.
Q8: What about in a situation where X & Y, a married
couple, find a pregnant woman, take her child & register the
woman’s child as their own. Does this make the child a
compulsory heir of X & Y?
A: The child will likely not be a compulsory heir of the
testator, unless the child is X’s child (the illegitimacy of
whom he must prove).
Q9: What if the child & the parent of the testator survive the
testator, who inherits?
A: Only the child. The child is preferred by the law & the
parent inherits only when the testator has no child.
Article 889. The legitime of legitimate parents or
ascendants consists of ½ of the hereditary estates of their
children & descendants.
The children or descendants may freely dispose of the other
half, subject to the rights of illegitimate children & of the
surviving spouse as hereinafter provided. (809a)
Article 890. The legitime reserved for the legitimate
parents shall be divided between them equally; if one of the
parents should have died, the whole shall pass to the
survivor.
If the testator leaves neither father nor mother, but is
survived by ascendants of equal degree of the paternal &
maternal lines, the legitime shall be divided equally
between both lines. If the ascendants should be of different
degrees, it shall pertain entirely to the ones nearest in
degree of either line. (810)
Legitimate Parents or Ascendants are Secondary
Compulsory Heirs
 The legitimate ascending line succeeds only in
DEFAULT of the legitimate descending line
3 Rules for Succession by the Ascending Line
1. The nearer exclude the more remote – no
qualification in the ascending line, since there is no
right of representation in the ascending line
2. Division by line – This applies if there is more than
one ascendant in the nearest degree
 The legitime shall be divided in equal parts
between the paternal & maternal line
3. Equal division within the line – After the portion
corresponding to the line has been assigned, there
will be equal apportionment between or among
recipients in the line, should there be more than one
Illustrative Example
Should X (the decedent) die without legitimate descendants
& be survived by three grandparents as his nearest
ascendants—A & B (paternal grandparents) & C (maternal
grandmother-the legitime of 1/2 will be divided equally
between the paternal and the maternal line.
Since there are two heirs in the paternal line, the paternal
line portion will be shared equally by the two; and since
there is only one in the maternal line, she gets the entire
allotment for the maternal line.
Result: A and B get 1/8 each of the estate; C gets 1/4 of the
estate.
Q: How about the parents; parents, they are the ascendants.
When are they entitled to legitimes?
A: ONLY when there are no legitimate descendants.
Q: What if there is an illegitimate descendant?
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A: The illegitimate descendant will become concurring
compulsory heirs side by side with the legitimate ascendants
(i.e., parents).
Q: If the heirs are the father & the mother & the estate is
P1,000,000, how would you divide the legitime among
them?
A: The parents will get ½ of the estate – P500,000. Each
parent will get P250,000.
Q: Let’s say that there is a father & mother, but the
grandparents of the father & mother are all alive. What
happens?
A: There is no right of representation in the direct ascending
line.
Q: Supposing that the testator’s mother has died; only the
father & the grandparents live (the mom’s parents are still
alive). Who gets the legitime?
A: ONLY the father. The nearer is favored. Thus, only the
father will inherit ½ of the estate of the testator.
Q: What if the dad & mom die but the parents of the parents
(i.e., the grandparents) are still alive. How will the
inheritance work out?
A: The grandparents will inherit instead. They will be
divided by line, so that ½ goes to the paternal side & ½ to
the maternal side.
Article 892. If only one legitimate child or descendant of
the deceased survives, the widow or widower shall be
entitled to ¼ of the hereditary estate. In case of a legal
separation, the surviving spouse may inherit if it was the
deceased who had given cause for the same.
If there are two or more legitimate children or descendants,
the surviving spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children or
descendants.
In both cases, the legitime of the surviving spouse shall be
taken from the portion that can be freely disposed of by the
testator. (834a)
Share of One Legitimate Child/Surviving Spouse
 1 legitimate child – ½ of the estate
 Surviving spouse – ¼ of the estate
Effect of Legal Separation (Family Code)
 Deceased is offending spouse in legal separation –
surviving spouse gets legitime
 Deceased is the innocent spouse – the offending
spouse is disqualified from inheriting
 If there was reconciliation after decree - the
reciprocal right to succeed is restored
 Death pending litigation - The proceeding terminates
& surviving spouse inherits (regardless of innocence
or guilt)
Termination of Marriage by Reappearance of Prior
Spouse/Decree of Annulment or Absolute Nullity
 Art. 41-43, Family Code - The reappearance of the
prior spouse terminates the 2nd marriage
o The spouse who contracted the subsequent
marriage in bad faith is disqualified to inherit
from the innocent spouse by (1) testate & (2)
intestate succession
 o If both persons in the 2nd marriage got  1/3 to the surviving spouse
together in good faith, they continue to be
heirs of one another Sharing Among Illegitimate Children
o If only one acted in bad faith, the innocent  If decedent died during effectivity of the new Family
one continues to be the heir of the other Code – sharing will be equal
 Problem which may arise - A & B are husband &  If decedent died before the effectivity of the new
wife. A disappears & after the required period B Family Code
complies with all the requirements of the Family o Spurious child – 4/5 of the share of the
Code on the matter & then marries C. Both B & C natural child
are in good faith. Subsequently, A reappears, causing
the termination of the B-C marriage. Under Article Article 895. The legitime of each of the acknowledged
43(5) the reciprocal right of succession between B & natural children & each of the natural children by legal
C remains; on the other hand, A (the rightful spouse) fiction shall consist of ½ of the legitime of each of the
& B are also heirs of each other. B then dies. Are A legitimate children or descendants.
& C both entitled to a legitime from B? The legitime of an illegitimate child who is neither an
 The same problem in judicially annulled marriages or acknowledged natural, nor a natural child by legal fiction,
marriages declared void under Art. 40 & 45. shall be equal in every case to 4/5 of the legitime of an
acknowledged natural child.
Legitimate Children/Surviving Spouse The legitime of the illegitimate children shall be taken from
 Children collectively get ½ of the estate the portion of the estate at the free disposal of the testator,
 The surviving spouse gets a share equivalent to each provided that in no case shall the total legitime of such
of the legitimate children or descendants illegitimate children exceed that free portion, & that the
 How share is computed – legitime of the surviving spouse must first be fully
Condition & Share Share of Share of satisfied. (840a)
of Descendants Grandchildren Surviving
Spouse Article 896. Illegitimate children who may survive with
If there is at least 1 Grandchildren will Spouse will legitimate parents or ascendants of the deceased shall be
surviving child out not get a share; the get same share entitled to ¼ of the hereditary estate to be taken from the
of many kids nearer exclude the as that child portion at the free disposal of the testator. (841a)
more remote
Illegitimate Children/Legitimate Parents
If all children All the The spouse
either – grandchildren will will get a  ½ for the parents collectively (Art. 889-890)
1. Predecease inherit via right of share as if a  ¼ for the illegitimate children collectively
2. Are disinherited representation, & child were (effectivity of Family Code is an issue)
3. Are unworthy to in different still alive
succeed & amounts Article 897. When the widow or widower survives with
legitimate children or descendants, & acknowledged natural
children, or natural children by legal fiction, such surviving
If all the children Grandchildren Debatable; spouse shall be entitled to a portion equal to the legitime of
renounce would inherit per could be same each of the legitimate children which must be taken from
capita, & therefore, share as the that part of the estate which the testator can freely dispose
equally grandchildren, of. (n)
or a share as if
a child Article 898. If the widow or widower survives with
survived legitimate children or descendants, & with illegitimate
children other than acknowledged natural, or natural
Article 893. If the testator leaves no legitimate children by legal fiction, the share of the surviving spouse
descendants, but leaves legitimate ascendants, the surviving shall be the same as that provided in the preceding article.
spouse shall have a right to ¼ of the hereditary estate. (n)
This fourth shall be taken from the free portion of the
estate. (836a) Article 899. When the widow or widower survives with
legitimate parents or ascendants & with illegitimate
Share of Legitimate Parents/Spouse children, such surviving spouse shall be entitled to 1/8 of
 ¼ of the estate – surviving spouse the hereditary estate of the deceased which must be taken
 ½ of the estate – for the ascendants, collectively (in from the free portion, & the illegitimate children shall be
accordance with Art. 889-890) entitled to 1/4 of the estate which shall be taken also from
the disposable portion. The testator may freely dispose of
Article 894. If the testator leaves illegitimate children, the the remaining 1/8 of the estate. (n)
surviving spouse shall be entitled to 1/3 of the hereditary
estate of the deceased & the illegitimate children to another Legitimate Parents/Surviving Spouse/Illegitimate Children
1/3. The remaining 1/3 shall be at the free disposal of the  Legitimate parents & ascendants – ½ collectively
testator. (n)  Illegitimate children or descendants – ¼ collectively
 Surviving spouse – 1/8
Share of Illegitimate Children/Surviving Spouse
 1/3 to the illegitimate kids collectively
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Article 900. If the only survivor is the widow or widower, also ¼ of the estate. (n)
she or he shall be entitled to ½ of the hereditary estate of
the deceased spouse, & the testator may freely dispose of Illegitimate Parents Alone
the other half. (837a)  Illegitimate parents – they get ½ of the estate
If the marriage between the surviving spouse & the testator  BUT in the illegitimate ascending line, the right does
was solemnized in articulo mortis, & the testator died not go beyond the parents
within three months from the time of the marriage, the
legitime of the surviving spouse as the sole heir shall be Illegitimate Parents/Surviving Spouse
one-third of the hereditary estate, except when they have  ¼ for the parents collectively
been living as husband and wife for more than 5 years. In  ¼ for the spouse
the latter case, the legitime of the surviving spouse shall be  NOTE: Whereas legitimate parents are excluded only
that specified in the preceding paragraph. (n) by legitimate heirs, illegitimate parents are excluded
by all types of children, legitimate or illegitimate
Surviving Spouse as Sole Compulsory Heir
GR: ½ of the estate Article 891. The ascendant who inherits from his
EXC: 1/3 of the estate, if the ff. is present: (AS-35) descendant any property which the latter may have
1. The marriage was in Articulo mortis acquired by gratuitous title
2. The Spouse who died was the party in articulo mortis
 From another ascendant, or
at the time of the marriage
 [From] a brother or sister,
3. The testator died within 3 months from the time of
is obliged to reserve such property as he may have acquired
marriage
by operation of law for the benefit of relatives who are
4. The parties did not cohabit for more than 5 years
 Within the third degree &
Article 901. When the testator dies leaving illegitimate  Who belong to the line from which said property
children and no other compulsory heirs, such illegitimate came. (871)
children shall have a right to one-half of the hereditary
estate of the deceased. RESERVA TRONCAL
The other half shall be at the free disposal of the testator.
(842a)

Illegitimate Children Alone Origin Reservista

 Illegitimate children get ½ collectively
(1) (2)
Article 902. The rights of illegitimate children set forth in (3)
the preceding articles are transmitted upon their death to
their descendants, whether legitimate or illegitimate. (843a) Prepositus 3rd degree
relatives of
Right of Representation to Descendants Prepositus on
Decedent Right of Effect the side of
Representation Origin
Reservatarios
Illegitimate Both legitimate & Descendants of
children (IC) illegitimate IC have
descendants broader rights Important Persons in Reserva Troncal Set-Up
Legitimate Only legitimate of  Origin – the ascendant or brother or sister from
children (LC) descendants (Art. representation whom the property was inherited by the descendant
992) than LC  Prepositus – the descendant who dies without issue
after inheriting from the Origin
Application of Art. 902  Reservista or Reserver – the ascendant who inherits
 Applies to legitime from the Prepositus after the latter dies & who has
 Applies to intestacy the duty to reserve the property in favor of the
Reservatarios
Illustrative Example  Reservatarios or Reservees – the persons who will
 An illegitimate child of a predeceased legitimate inherit the property from the Reservista, who must be
child cannot inherit by representation within the third degree & belong to the same line as
 BUT an illegitimate child of an illegitimate child can the Prepositus in relation to the Origin

Article 903. The legitime of the parents who have an
illegitimate child, when such child leaves neither legitimate
descendants, nor a surviving spouse, nor illegitimate
children, is ½ of the hereditary estate of such illegitimate
child. If only legitimate or illegitimate children are left, the
parents are not entitled to any legitime whatsoever. If only
the widow or widower survives with parents of the
illegitimate child, the legitime of the parents is ¼ of the
hereditary estate of the child, & that of the surviving spouse
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Purpose of Reserva Troncal
It is a special rule designed primarily to assure the return of
the reservable property to the 3rd degree relatives belonging
to the line from which the property originally came, & to
avoid its being dissipated by the relatives of the inheriting
ascendant (Reservista).
Requisites for Application of Reserva Troncal
 1. That the property was acquired by a descendant from
an ascendant or from a brother or sister by gratuitous
title;
 Acquisition is by gratuitous title when “the
recipient does not give anything in return,”
including transmissions by donation or by
succession (of whatever kind).
2. That said descendant died without an [legitimate]
issue;
 ONLY legitimate descendants will prevent
the property from being inherited by the
legitimate ascending line by operation of law.
3. That the property is inherited by another ascendant
by operation of law; &
 Limited to intestacy, NOT testamentary
succession
4. That there are relatives within the 3 rd degree
belonging to the line from which said property came.
Other Names Given to Reserva Troncal
 Lineal
 Familiar
 Extraordinaria
 Semi-troncal
 Pseudo-troncal
Process of Transmission
1. First transfer — by gratuitous title, from a person to
his descendant, brother or sister.
2. Second transfer — by operation of law (intestate),
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)
Q: If the Origin is a brother or sister, how can there be a
separate line, when the brother or sister will belong to the
same line as the sibling prepositus who receives the line?
A: There could be half-blood brothers & sisters because
there could be 2 different lines.
Q: Supposing that the prepositus receives a property from a
half-brother who is the illegitimate son of his father. Is there
reserva troncal situation?
A: NO. Only a legitimate child can prevent property from
being inherited by the legitimate ascending line by operation
of law.
Q: Supposing the property concerned was a gift given by the
uncle to the prepositus. Will there be reserva troncal?
A: NO. Uncles & aunts are not considered as ascendants
within the meaning of the law when one speaks of reserva
troncal. Those included are only parents & grandparents;
collaterals are not included. But recall that brothers & sisters
are also included.
Q: Does reserva troncal come into existence from the
transfer of the property from the Origin to the Prepositus?
A: NO. Reserva troncal only begins at the time from the
transfer of the Prepositus to the ascendant, the Reservista,
following the Prepositus’ death without issue.
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Q: What is the meaning of the comment of one of the legal
luminaries that the Prepositus is the arbiter of the reserver?
A: It is like saying the Prepositus is the middle man.
Q: What are the Prepositus’ rights when it comes to the
property?
A: He has full ownership rights. He may sell the property,
etc. since there is no reserva troncal yet.
Q: What if the Prepositus sells the property & gives the cash
to the ascendant?
A: The Prepositus no longer “activates” reserva troncal, so to
speak, because it should be the same property which
transfers.
Q: What are the other acts by which there will no longer be
reserva troncal?
A: Partition or if he bequeaths it by will to some other
relative or his ascendant by means of will. This prevents
reserva troncal from happening, since the transfer to the
Reservista to the Prepositus must be by operation of law, not
by will, by donation, or some other means.
Q: What if the mother receives the property by way of
legitime; is this considered a reserva troncal situation?
A: NO. Besides, the transfer to the mother may be partly by
will & partly by operation of law.
By operation of law means that is ONLY by means of
intestacy or legal succession.
Q: What else can the Prepositus do to prevent the creation of
a reserva troncal situation?
A: He can alienate the property. He can give it to his mom
by will. He can give it to other relatives by will. He could
also decide to marry or have a legitimate child. The primary
heir will be the child, & not the ascendant. By having the
child, the Prepositus prevents reserva troncal from taking
effect.
Q: Why is the Prepositus thus called an arbiter?
A: It’s up to him whether or not reserva troncal applies.
Q: When the property reaches the hands of the Reservista,
what are the rights of the Reservista?
A: He has the obligation to preserve the property.
Q: Is the Reservista merely a usufructuary over the property?
A: NO. He does have ownership over the property, subject to
the resolutory condition that, should he die, & there are
living reservatorios at the time of the Reservista’s death, the
property will pass to the former.
Q: What happens if the Reservista sells the property?
A: The property should be annotated so that it is stated that
the property will be subject to reserva troncal.
Q: What if there is no annotation in the title? How is the
buyer to know if it is subject to reserva troncal or not?
A: Even if the Reservista is unable to annotate the title, it
will become the buyer’s duty to annotate it. They cannot
claim they did not know of the duty.
Q: How about the reservatorios? Who are they?
A: They are the relatives within the 3 rd degree of the
Prepositus in the same line to whom the property belongs.
Q: Who would these 3rd degree relatives be?
A: The brothers or sisters of the origin or anything closer
than that, such as a brother or sister of the Prepositus.
Q: Who are the relatives of the Prepositus within the first
degree?
A: The father or mother (children should be included, but
then he would not have a legitimate son or daughter).
Brothers & sisters are within the 2 nd civil degree, alongside
the grandfather.
Aunts & uncles would be 3rd civil degree.
First cousins are NO LONGER INCLUDED, since they are
of the 4th civil degree.
Q: Must the reservatorios be alive when the Prepositus dies?
A: They only have to be in existence at the time of the death
of the Reservista. Whether they are conceived or born at the
time the Prepositus dies is immaterial. It is the death of the
Reservista which is controlling.
Q: Supposing the Reservista has a daughter; can the
daughter claim that she has a right over the property subject
to reserva troncal?
A: NO.
Q: Supposing after the reservista dies, the people left of the
Prepositus are the uncles & aunts & the brothers of the
Prepositus. Between them, who can claim the right to own?
A: The brothers. They cannot all claim to own the property
because the rules of intestate succession apply when it
comes to reserva troncal. Those of the nearer degree exclude
those of the farther.
The reservatorios are a group of relatives within the 3 rd
degree related to the propositus. BUT within that group,
their rights are determined by the rules of intestate
succession.
Q: Is the principle of right of representation applicable in
reserva troncal? For example, if there nieces & nephews, the
latter’s parents having died, can the nieces & nephews
represent their parents & claim the application of reserva
troncal?
A: YES.
Q: What if the uncles or aunts died & only first cousins
remain, will there be reserva troncal?
A: NO, because they themselves are outside of the limit &
do not fall under the 3rd degree.
Q: Supposing that the prepositus has 2 houses, one inherited
from his father & another which he built himself. Upon his
death, the 2 houses went to his mom. Will the 2 houses be
subject to reserva troncal?
A: Only the house received from the dad will be covered.
Q: A son received from his mother P200,000 by virtue of a
will. The son had properties of his own amounting to
P400,000. When the son died without issue, he left a will
giving all his estate (P600,000) to his father. How much is
the reservable property?
A: This is a case of testate succession. Since the father’s
legitime is only ½, he received the P600,000 in two
capacities: P300,000 as a compulsory heir — & which was
received therefore as legitime or by operation of law; &
P300,000 as a voluntary heir, & therefore not by operation of
law. Now then:
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 According to the theory of reserva maxima, the
reservable property is P200,000. In other words, the
reservable property includes all that can be included
in the half constituting the legitime of the reservista.
 According to the theory of reserva minima, the
reservable property is only P100,000. The theory is
based on the fact that half of the P200,000 received
from the origin (mother, in this case) was given to
the father as his legitime or by operation of law.
Therefore, the reservable property is only P100,000. 15
Q: What is preferred in our jurisdiction?
A: Reserva minima is preferred in our jurisdiction.
CASE: SOLIVIO V. CA
Facts: Salusta was the mom of Esteban; upon her death, she
bequeathed all her properties to him. During Esteban’s
lifetime, he always told his aunt Celedonia that he wanted to
build a foundation for his mom. Esteban then died without
any descendants. Celedonia now wants to be made special
administrator of properties Salusta inherited from Esteban on
the basis of reserva troncal, being a 3 rd degree relative of
Salusta. Does reserva troncal apply?
Held: NO. There was no ascendant to function as a
reservista. For there to be reserva troncal, there must be a
letter “V,” so to speak. In this case, the property only
transferred from Salusta to Esteban, but was never passed on
to another ascendant, from Esteban. Esteban is just a
descendant of Salusta; he is not an ascendant or reservista
who is mandated by law to reserve the property. As such,
there is no reserva troncal. Instead, Art. 1009 applies in this
case.
Basic Rules of Reserva Troncal
1. No inquiry is to be made beyond the Original/Mediate
Source.
 It does not matter who the owner of the property was
before it was acquired by the Origin.
2. All the relationships among the parties must be legitimate.
The Origin or Mediate Source
 Ascendant – any degree of ascent
 Brother or sister – two opinions
o Opinion #1 - There is only reserva if the
relationship between brother & sister is half-
blood; otherwise, there would be no changing
in lines passing to a common ascendant of the
Prepositus & sibling.
o Opinion #2 – It does not matter whether the
fraternal relationship is of the full- or half-
blood. Reserva may arise either way.
When Reserva Arises
 While the property is still with the Prepositus, there
is no reserva yet
 The reserva only arises upon the 2nd transfer (from
descendant without heirs up to the ascendant)
 While the property is with the Prepositus, he has all
the rights of ownership over it & may exercise such
rights in order to prevent a reserva from arising, such
as –
1. By substituting or alienating the property
15
This example is taken from Paras.
 2. By bequeathing or devising it either to the
potential reservista or to 3rd persons (subject
to the constraints of the legitime)
3. 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)
Reservista
 An ascendant of the Prepositus, of whatever degree
 OTHER THAN the Origin or Mediate Source
Illustrative Example
Q: 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?
A: Depends who you ask!
 Reyes & Puno – No, because another ascendant is
one belonging to a line other than that of the
reservista
 Roman – Yes, because the law makes no
distinction & the purpose of reserva is not only
curative, but preventive
 SC – seems to be YES – In Carrillo v. De la Paz,
the property passed from the mom to the son, and
then, the grandma, causing a reserva (but this was
not the lis mota of the case)
The Reservatarios
 The reserva is in favor of a class, collectively
referred to as the reservatarios (reservees)
 Requirements:
1. He must be within the third degree of
consanguinity from the Prepositus
2. He must be alive at the time of the
reservista’s death
 He need not be alive when the
Prepositus dies
3. He must belong to the line from which the
property came
 To determine this, one must determine
the Origin/Mediate Source
 If an ascendant or half-sibling –
paternal or maternal
 If a sibling – the question of line
doesn’t matter
 Must reservatarios be related to the Mediate Source?
o One view – NO. Subdivisions do not matter
because the law speakers of only two lines,
paternal & maternal.
o One view – YES. Otherwise, the result is
contrary to the purpose of reserva.
CASE: PADURA V. BALDOVINO
Facts: Agustin had two wives in his lifetime, Gervacia &
Benita. With Gervacia, he had Manuel. With Benita, he had
Fortunato & Candelaria. When Agustin died, he bequeathed
his properties to his 3 kids & his surviving spouse, Benita.
Fortunato, child of Benita, died unmarried & without a will;
the properties were thus inherited by his mom. After,
Candelaria also died, leaving 4 kids as her heirs. Then,
Manuel also died, with 5 legitimate kids.
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Benita died. How should the apportionment of the reserva
property (with Prepositus as Agustin) go about, considering
it is reserva troncal property?
Held: The respective share of each in the reversionary
property should be governed by the ordinary rules of
intestate succession (including the rules on proximity of
degree & right of representation; also, that full blood siblings
get twice the share of the half blood siblings). Thus, those
claiming their right from half-sibling Manuel will only get
half the share of a full blood sibling.
1. Upon the death of the ascendant reservista, 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.
2. Reserva troncal merely determines the group of
relatives (reservatarios) to whom the property should
be returned; but within that group the individual right
to the property should be decided by the applicable
rules of ordinary intestate succession, since Art. 891
does not specify otherwise. 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 accomplish the
purpose of the law.
3. Even during the reservista’s lifetime, the
reservatarios, who are the ultimate acquirers of the
property, can already assert the right to prevent the
reservista from doing anything that might frustrate
their reversionary right; and for this purpose they can
compel the annotation of their right in the Registry of
Property even while the reservista is alive.
4. 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. The latter,
therefore, do not inherit from the reservista, but from
the descendant prepositus, of whom the reservatarios
are the heirs mortis causa, subject of the condition
that they must survive the reservista.
CASE: DE PAPA V. CAMACHO
Facts: Faustino died intestate and without issue, leaving his
1/2 share in the 7 parcels of land to his father Eustacio.
Trinidad (Faustino's sister) died intestate and her only
legitimate child Dalisay inherited; thus Dalisay, owned 1/2
of the 7 parcels of land as her inheritance from her mother.
Eustacio (Dalisay's maternal grandfather; Trinidad's father)
died intestate, survived only by Dalisay. Thus, Dalisay is
claiming the other 1/2 by virtue of the reserva troncal
imposed thereon upon the death of Faustino Dizon and under
the laws on intestate succession. However, her grandaunt
and granduncles oppose her claim, by virtue of their being
also 3rd degree relatives of Faustino Dizon. Do the
grandaunts & granduncles have a right to complain?
Held: NO. Dalisay inherits the property. Relatives of the
prepositus within the 3rd degree in the appropriate line DO
NOT succeed without distinction to the reservable property
upon the death of the reservista. Reversion of the reservable
property being governed by the rules on intestate succession,
the grandaunt & granduncles must be held without any right
thereto because, as aunts & uncles of Faustino (prepositus),
they are excluded from succession by his niece Dalisay,
although they are related to him within the same degree as
the latter. In case of intestacy, the Code provides that
nephews & nieces exclude all other collaterals (aunts &
uncles, first cousins, etc.) from succession. Under the
pertinent provisions, brothers & sisters & nephews & nieces
inherited ab intestato ahead of the surviving spouse, while
other collaterals succeeded only after the widower or widow.
Representation among the Reservatarios
 The rule of preference in degree among reservatarios
is qualified by the rule of representation
CASE: FLORENTINO V. FLORENTINO
Facts: Apolonio & Severina had two kids, Mercedes &
Apolonio III. Apolonio already had 9 kids from his marriage
with his 1st wife. When Apolonio died, all of his 11 children
succeeded to the inheritance he left. Apolonio III was born
after Apolonio died, but was given, as his share, the property
subject of the controversy in this case. Apolonio III died, &
was succeeded by his mom, Severina. She instituted her
daughter, Mercedes, as heir to the property.
Held: SC held that only the children of the 11 children have
the right to represent their parents & claim their parents’
rights as reservatarios, taking into account that only those
who themselves can be considered within the third degree
may represent their ascendants in a reserva troncal situation.
Since 2 children died without issue, the property will just be
split among the 9 children, some alive & some with heirs
within the third degree who can represent them. Severina
cannot bequeath the property, by will, solely to her daughter
Mercedes, inasmuch as the property was not Severina’s own
& she only had the right of usufruct or fiducaury, with the
obligation to preserve & deliver the same to the
reservatarios, one of them being her daughter, Mercedes.
1. Ascendants do not inherit the reservable property, but
its enjoyment, use or trust, merely for the reason that
said law imposes the obligation to preserve same for
certain designated persons who, on the death of the
reservista, acquire the ownership of said property by
operation of law in the same manner as forced heirs;
said property reverts to the reservatarios.
2. A reservista is nothing but a life usufructuary or a
fiduciary of the reservable property received. He is,
however, the legitimate owner of his own property
which is not reservable property and which
constitutes his legitime, according to Art. 809. But if,
afterwards, all of the relatives, within the third
degree, of the descendant (from whom came the
reservable property) die or disappear, the property
becomes free property, by operation of law, & is
converted into the legitime of the ascendant heir who
can transmit it at his death to his legitimate
successors or testamentary.
3. The right of representation cannot be alleged when
the one claiming same as a reservatario is not among
the relatives within the third degree belonging to the
line from which such property came, inasmuch as the
right granted by Art. 811 is in the highest degree
personal and for the exclusive benefit of designated
persons who are the relatives, within the 3rd degree,
of the prepositus. Therefore, relatives of the 4th and
the succeeding degrees can never be considered as
reservatarios, since the law does not recognize them
as such. There is only a right of representation 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 reservable property
came. These reservatarios have the right to represent
their ascendants (fathers & mothers) who are the
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brothers of the deceased & relatives within the third
degree in accordance with Art. 811.
One Instance of Representation Only
There will be only one instance of representation among the
reservatarios – a case of the Prepositus being survived by
siblings & children of a predeceased or incapacitated sibling
Juridical Nature
Its juridical nature may be viewed from 2 aspects –
 That of the reservista
 That of the reservatarios
CASE: EDROSO V. SABIAN
Facts: Marcelina & Victoriano are married. They had a son
named Pedro. Pedro died unmarried & without issue; thus, a
property inherited from Victoriano passed to Marcelina.
Marcelina applied to have the property registered under her
name. Two brothers of Victoriano opposed the registration;
they wanted the registration either to be denied, or, if
granted, their right to the property should be recorded in the
certificate of registration. Who has the right to have the
property registered under his or her name?
Held: Marcelina is entitled to register the property in her
own name, but she must also record the right required by
Art. 811 to be reserved to either or both the brothers of
Victoriano, should they survive her.
1. The reservista cannot be considered just a
usufructuary & the reservatarios immediately the
owners.
2. The reservista who inherits from the 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 & recovery. This absolute
ownership which is inherent in the hereditary title, is
not altered in the least, if there be no reservatarios
whence the property proceeds or they die before the
reservista. If there should be relatives within the 3 rd
degree who belong to the line whence the property
came, then a limitation to that absolute ownership
would arise.
3. 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
expressly reserving the right in the registration (Art.
109, Mortgage Law). The reservatarios cannot
impugn the validity of such a transaction so long as
the reservista is alive, because it might easily happen
that the latter outlives the former. In such a case, the
alienation would not only be valid, but also absolute.
4. The reservista acquires the property with a condition
subsequent (i.e., whether or not there exist at the time
of his death relatives within the 3 rd degree of the
descendant from whom they Inherit in the line
whence the property proceeds). If such relatives
exist, they acquire ownership of the property at the
death of the reservista. If they do not exist, the
reservista can freely dispose thereof. If this is true,
since the possessor of property subject to conditions
subsequent can alienate & encumber it, the ascendant
may alienate the property required by law to be
reserved, but he will alienate what he has & nothing
 more because no one can give what does not belong
to him, & the acquirer will therefore receive a limited
and revocable title. The relatives within the 3rd degree
will in 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 3rd degree. After the reservista dies, the relatives
may rescind the alienation of the reserva property &
they will acquire it in complete ownership.
5. While the reservista is still alive, the reservatarios
cannot claim to be the owners of the property; if the
latter attempted to dispose of the property while the
reservista is alive, the sale would be void.
Furthermore, the reservatarios cannot attack any
dispositions made; such a disposition is the
equivalent of selling the enjoyment to a usufruct.
Thus, the buyer will have bought the property under
a pacto de retro sale. Conventional redemption takes
place when the vendor reserves to himself the right to
recover the thing sold with the obligation to comply
with Art. 1518, and whatever more may have been
agreed upon, that is, if he recovers the thing sold by
repaying the vendee the price of the sale and other
expenses. Notwithstanding this condition subsequent,
the buyer may register his title with the consent of
the vendor. He may alienate the thing bought when
the acquirer knows very well from the title entered in
the registry that he acquires a title revocable after a
fixed period, a thing much more certain & 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.
Lessons from Edroso
1. The reservista’s right over the reserved property is
one of ownership.
2. The ownership is subject to a resolutory condition:
the existence of reservatarios at the time of the
reservista’s death.
3. The right of ownership is alienable, but subject to
the same resolutory condition.
4. The reservista’s right of ownership is registrable.
CASE: SIENES V. ESPARCIA
Facts: Saturnino, with Teresa his 1st wife, had 4 kids. He had
one son, Francisco, with his 2nd wife, Andrea. When
Saturnino died, each of his children inherited a lot.
Francisco, however, predeceased his mother; thus,
Francisco’s lot was transferred to Andrea. Andrea, however,
executed an extrajudicial settlement & sale of the property,
selling the property to the buyers-appellees. When the
appellees asked the title of the property from the future
reservatarios, Paulina & Cipriana (2 half-sisters of Francisco
& daughters of Saturnino), the latter refused & sold the
property to Sienes & Esparcia, who declared the property as
theirs for tax purposes. Who has a better right over the
reserva property?
Held: Cipriana (& in turn, Sienes & Esparcia). The sale
made by Andrea in favor of appellees was 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
reservable property. Inasmuch as when Andrea died,
Cipriano was still alive, the conclusion becomes inescapable
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that the previous sale made by the former in favor of
appellants became of no legal effect & 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
Paulina & Cipriana in favor of Esparcia & Sienes was
subject to a similar 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 reserve. In the
present case, Cipriana, one of the reservees, was still alive
when Andrea died. Thus the former became the absolute
owner of the reservable property upon Andrea’s death.
While it may be true that the sale made by her & her sister
prior to this event, became effective because of the
occurrence of the condition, SC did not order reversion of
the property in question to the Esparcia spouses, as the latter
did not appeal therefrom. It just held that the latter could file
a separate suit for reversion.
Lessons from Sienes
1. The reservatarios have a right of expectancy over
the property.
2. The right is subject to a suspensive condition, i.e.,
the expectancy ripens into ownership if the
reservatarios survive the reservista.
3. The right is alienable, but subject to the same
suspensive condition.16
4. The right is registrable.
CASE: GONZALES V. CFI
Facts: Mrs. Legarda was a reservista of property. She
executed two handwritten identical documents wherein she
disposed of the reserva properties which she inherited from
her daughter, in favor of the children of her sons, Benito,
Alejandro and Jose (sixteen grandchildren in all). As a
reservista, is Mrs. Legarda allowed to do dictate how the
reserva property is divided and to whom it goes?
Held: NO. Reservistas cannot appoint, by will, which
reservatarios will get the reserved property. Mrs. Legarda
could not convey in her holographic will to her sixteen
grandchildren the reservable properties which she had
inherited from her daughter Filomena because the reservable
properties did not form part of her estate. The reservista
cannot make a disposition mortis causa of the reservable
properties as long as the reservatarios survived the
reservista. The reservees inherit the reservable properties
from the prepositus, not from the reservor.
Art. 891 clearly indicates that the reservable properties
should be inherited by all the nearest relatives within the
third degree from the prepositus who in this case are the six
children of Mrs. Legarda. She could not select the
reservatarios to whom the reservable property should be
given and deprive the others. To allow the reservista in this
case to make a testamentary disposition of the reservable
properties in favor of the reservatarios in the 3rd degree and,
consequently, to ignore those in the 2nd degree would be a
glaring violation of Art. 891.
Kind of Property Reserved
16
Sienes refers to the right as a resolutory condition, but that is incorrect.
Any! Even a sugar allotment (i.e., incorporeal property) is
reservable.
Effect of Substitution
The very same property must go through the process of
transmissions in order for the reserva to arise. The self-same
property must come
 From the Mediate Source,
 To the Prepositus by gratuitous title, &
 To the reservista by operation of law.
Thus, the Prepositus is the “arbiter of the reserva” –
 If the Prepositus substitutes the property by selling,
bartering, or exchanging it, the substitute cannot be
reserved.
 This is because while the property is with the
Prepositus, there is yet no reserva. Reserva
commences only when the property is received by
the reservista.
CASE: CANO V. DIRECTOR
Facts: Maria was the reservista of a property; she died
pending a cadastral proceeding wherein the reserva property
was supposed to be registered under her name. Guerrero, the
reservee, filed a motion in the cadastral proceedings to have
the OCT cancelled & a new one issued in his name. The
sons of Maria opposed, claiming that the application of
reserva troncal should be ventilated in an ordinary
contentious proceeding & that the cadastral court did not
have jurisdiction; there would need to be a judicial
administration proceeding where the rights of Guerrero as
reservee have to be declared. The lower court granted the
petition & issued a new OCT in favor of Guerrero. Was this
correct?
Held: YES. The right of Guerrero as reservatario had already
been declared to exist by the decree of registration wherein
his rights were expressly recognized. It was shown by
Guerrero’s petition that he was the nearest of kin & could
thus exclude all other oppositors. 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 reservatario will succeed
in, or inherit, the reservable property from the reservista.
This is not true. The reservatario is not the reservista's
successor mortis causa nor is the reservable property part of
the reservista'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 strayed during the reservista’s lifetime.
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.
*Note: Where the registration decree merely specifies the
reservable character of the property, without determining the
identity of the reservatarios or where several reservatarios
dispute the property among themselves, further proceedings
would be unavoidable. But this is not the case. The rights of
the Guerrero have been recognized, and it is nowhere
claimed that there are other reservatarios of equal or nearer
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degree. It isthus apparent that the heirs of the reservista are
merely endeavoring to prolong their enjoyment of the
reservable property.
Reserva Property Not Part of Reservista’s Estate
Since the reserved property is not computed as part of the
reservista’s estate, it is not taken into account in determining
the legitimes of the reservista’s compulsory heirs.
Reserva Maxima-Reserva Minima
Solves the problem that arises when (1) the Prepositus
makes a will instituting the ascendant-reservista to the whole
or a part of the free portion of his estate; & (2) there is left in
the Prepositus’ estate, upon his death, in addition to the
reserved property, property not reservable.
 Reserva maxima - As much of the potentially
reservable property as possible must be deemed
included in the part that passes by operation of law.
This “maximizes” the scope of the reserva.
 Reserva minima (more accepted here) - Every single
property in the Prepositus’ estate must be deemed to
pass, partly by will & partly by operation of law, in
the same proportion that the part given by will bears
to the part not so given.
Rights & Obligations of Parties under the Old Law
The rights of the reservatarios (& the corresponding duties
of the reservistas) were –
1. To inventory the reserved properties;
2. To annotate the reservable character (if registered
immovables) in the Registry of Deeds within 90 days
from the reservista’s acceptance;
3. To appraise the movables;
4. To secure by means of mortgage:
a. The indemnity for any deterioration of or
damage to the property occasioned by the
reservista’s fault or negligence, &
b. The payment of the value of such reserved
movables as may have been alienated by the
reservista onerously or gratuitously.
CASE: SUMAYA V. IAC
Facts: Consuelo, reservista, registered the reserva property
with the Register of Deeds, but the TCTs stated that they
were free from any liens & encumbrances. Consuelo then
executed an affidavit of self-adjudication, which clearly
stated that she, the affiant, was a lone ascendant & heir to
Raul, who died leaving properties previously inherited from
other ascendants. Consuelo sold the property to Sumaya,
who then sold it to Villa Honorio Development Co. When
Consuelo died, the reservatarios (Raul's brothers in full
blood, niece & nephews) sought to recover the property,
which they claimed were subject to a reserva troncal in their
favor. Can the subsequent buyers claim good faith & thus
evade the rights of Raul’s relatives?
Held: NO. According to PD 1529, the registration of the
affidavit of the reservista was constructive notice to the
world, so that 3rd persons could not rely solely on the clean
title. The affidavit of self-execution stating the source of the
properties thereby showing the reservable nature thereof was
registered with the Register of Deeds.
It also appeared that the 3rd persons were long-time
acquaintances with the respondents, and that the buyers
knew all along that the properties were of a reservable
character. Moreover, the SC also stated that it was the duty
of the reservista to both reserve the property & annotate it
accordingly as well.
*Note: The above ruling shows that, despite the lack of a
provision in the new Code, there is still a duty on the part of
the reservista to annotate the property for the reservatarios.
But the case is silent on (1) the period within which the
annotation must be made & (2) whether the old requirements
apply in full.
Extinguishment
1. The death of the reservista
2. The death of all the reservatarios
 If one subscribes to the view that the
reservista can belong to the line of origin, this
will not ipso facto extinguish the reserva
because the reservista, could have a child
subsequently, who would be a reservatario
3. Renunciation by all the reservatarios
 Provided that no other reservatario is born
subsequently
4. Total fortuitous loss of the reserved property
5. Confusion or merger of rights
 As when the reservatarios acquire the
reservistas right by a contract inter vivos
6. Prescription or adverse possession
CASE: FRIAS CHUA V. CFI
Facts: The propositus (Juanito) inherited property from his
father (Jose). In the intestate proceeding, the Court ordered
Juanito & his mother to pay Standard Oil Co. the sum of
P3,900. Is the first transfer (from the origin, Jose, to the
prepositus Juanito) still gratuitous?
Held: YES. The transmission is gratuitous when the
recipient (Prepositus) does not give anything in return for the
property received. It matters not whether the property
transmitted is subject to any prior charges. What is essential
is that the transmission be made gratuitously, without
imposing any obligation on the part of the recipient. It is
evident that the transmission of the property was by means
of a hereditary succession & therefore gratuitous. The
obligation was imposed by the Court, & not by the
prepositus' father.
As long as the transmission was free from any condition
imposed by the deceased himself & the property is given out
of pure generosity, it is gratuitous.
CASE: RIOSA V. ROCHA
Facts: 11 parcels of land were acquired by Jose from his
father, Mariano. After Jose's death, by operation of law, the
parcels of land passed to his mother Maria, who had the duty
to preserve it. Maria, however, sold parcels 10 & 11 to
Marcelina & Pablo. Magin Riosa, the nearest relative within
the 3rd degree, filed an action for the property to be declared
as reservable & for the reservation to be noted in the
Registry of Deeds, & further, to declare the sale valid only
insofar as it saves the right of reservation in her favor. Will
Magin’s action prosper?
Held: YES. Maria as reservista is obliged to have the
reservation noted in the Registry of Deeds. The reservista is
bound to register the reservation within 90 days from the
date of the adjudication of the property to the heirs by the
court. After this period, the reservatarios have the right to
enforce compliance with the obligation. Where a reservable
property is sold by the reservista, without having registered
its reservable character, the obligation to register the same is
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transferred to the purchaser, when, in making the purchase,
the latter knew the facts which give the property the
reservable character. Marcelina Casas & Pablo Rocha being
the daughter-in-law & nephew of Maria Corral, the buyers
knew that the parcels of land were reservable property; thus,
the duty of Maria to record the reservable character of
Parcels 10 and 11 had been transferred to the buyers.
CASE: MENDOZA V. DE LOS SANTOS
Facts: Placido & Dominga had 4 children, among them
Exequiel. Upon Exequiel's death, his properties passed on to
his widow Leonor & daughter Gregoria. After Leonor's
death, her share went to Gregoria. Gregoria died intestate &
without issue. Leonor's sister Julia allegedly then
adjudicated unto herself all the properties as the sole
surviving heir of Leonor & Gregoria. The granchildren of
Placido & Domingo (Exequiel's nephews & nieces) claim
that the properties should have been reserved by Julia in
their behalf & must now revert back to them.
Julia, however, claims that the properties were not originally
owned by Placido & Dominga; that they were bought by
Exequiel from a certain Alfonso Ramos.
The RTC ruled in favor of the grandchildren & ordered the
reconveyance of the properties to them, but the CA reversed
this decision, holding that the grandchildren failed to
establish that Placido & Dominga owned the properties &
that even if that fact were proved, the provision on reserva
troncal cannot apply as neither Exequiel predeceased Placido
& Dominga nor did Gregoria predecease Exequiel. Was the
CA correct?
Held: NO. The SC ruled that the ownership of the properties
should be reckoned only from Exequiel's death, since he is
the ascendant from where the first transmission occurred,
from whom Gregoria inherited the properties. The law does
not go farther than the ascendant/brother/sister in
determining the lineal character of the property. It was
immaterial for the CA to determine whether Exequiel
predeceased Placido & Dominga or whether Gregoria
predeceased Exequiel. What is pertinent is that Exequiel
owned the properties & he is the ascendant from whom the
properties in dispute originally came. Gregoria, on the other
hand, is the descendant who received the properties from
Exequiel by gratuitous title.
However, Julia (Leonor's sister) is not Gregoria's ascendant;
rather, she is Gregoria's collateral relative within the 3rd
degree. Further, the grandchildren cannot be considered
reservatorios as they are not relatives within the 3rd degree
of Gregoria. They are actually Gregoria's 4th degree
relatives, being her first cousins.
Thus, while the properties are reservable in character, the
grandchildren cannot benefit from reserva troncal, because
Julia is not the other ascendant within the purview of Art.
891 & because they (the grandchildren) are not Gregoria's
relatives within the 3rd degree.
What should be applied are Art. 1003 & 1009.
The SC also noted that the RTC erred in ordering the
reconveyance of the properties to the grandchildren.
Assuming arguendo that the reserva troncal is applicable in
the case at bar, the RTC should have had the reservable
nature of the property registered on Julia's titles.
Article 904. The testator cannot deprive his compulsory
heirs of their legitime, except in cases expressly specified
by law. Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever. (813a)
Testator Devoid of Power to Deprive Compulsory Heirs of
Legitime
 GR: The legitime is not within the control of the
testator; it passes to the compulsory heirs by
operation of law.
 EXC: Disinheritance
Testator Devoid of Power to Impose Burdens on Legitime
 GR: The testator cannot impose burdens on the
legitime, since it passes by strict operation of law.
 EXC: The law grants the testator some power in
certain instances –
1. Art. 1080, par. 2 - A parent who, in the Interest
of his or her family, desires to keep any
agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right
granted him in this article, by ordering that the
legitime of the other children to whom the
property is not assigned, be paid in cash.
2. Art. 1083, par. 1 - 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 20 years as provided in Art.
494. This power of the testator to prohibit
division applies to the legitime.
Restrictions on the Legitime Imposed by Law
1. Art. 159, Family Code - The family home shall
continue despite the death of one or both spouses or
of the unmarried head of the family for a period of 10
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 regardless of whoever owns the property
or constituted the family home.
2. Reserva troncal
Article 905. Every renunciation or compromise as regards
a future legitime between the person owing it & his
compulsory heirs is void, &
 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)
Reason for the Rule
Before the predecessor’s death, the heir’s right is simply
inchoate.
Duty to Collate
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Any property the compulsory heir may have gratuitously
received from his predecessor because of his renunciation or
compromise will be considered an advance on his legitime &
must be duly credited.
Scope of Prohibition
 Applicable ONLY to –
1. Renunciation
2. Compromise
 Between the (1) prospective compulsory heir & (2)
the predecessor.
 BUT: transactions between the prospective
compulsory heir & another prospective compulsory
heir, or even a stranger, are still prohibited under Art.
1347, par. 2 –
o No contract may be entered into upon future
inheritance except in cases expressly
authorized by law.
CASE: VDA. DE TUPAS V. RTC
Facts: Epifanio Tupas died, leaving his widow Partenza as
his only compulsory heir. In his will, among the assets listed
therein were several lots, admittedly his private capital.
However, at the time of his death, these lots were no longer
owned by him; he already donated them the year before to
the Tupas Foundation. Claiming that the donation left her
destitute of any inheritance, Partenza brought suit against the
Tupas Foundation to have the donation declared inofficious
insofar as it prejudiced her legitime, therefore reducible.
Should the donation be declared inofficious?
Held: YES. Forced heirs are entitled to have donations set
aside insofar as they are inofficious, i.e., in excess of the
portion of free disposal. The fact that the donated property
no longer actually formed part of the estate of the donor at
the time of his death cannot be asserted to prevent its being
brought to collation. Indeed, it is an obvious proposition that
collation particularly applies to gifts inter vivos. Since it is
clear that the questioned donation is collatable & that,
having been made to a stranger (to the donor) it is, by law,
chargeable to the freely disposable portion of the donor’s
estate, to be reduced insofar as inofficious.
If the value of the donation at the time it was made does not
exceed that difference, then it must be allowed to stand. But
if it does, the donation is inofficious as to the excess and
must be reduced by the amount of said excess. In this case, if
any excess be shown, it shall be returned or reverted to
Partenza as the sole compulsory heir of Epifanio.
CASE: DE BELEN VDA. DE CABALU V. TABU
Facts: Faustina Maslum executed a will, instituting as heirs
her nephews & nieces, one of whom was Benjamin
Laxamana. Faustina died in 1941; however, her will was
never probated. Benjamin died in 1960, leaving his wife &
son Domingo as co-heirs. In 1975, Domingo sold a 9,000
sqm. property supposedly inherited from Faustina & then
Benjamin in favor of Laureano. The Deed of Extrajudicial
Partition between all the heirs of Faustina was only executed
in 1994. Was the sale to Laureano in 1975 valid?
Held: NO. The SC ruled that the sale cannot be deemed valid
because at the time it was made (1975), Domingo was not
yet the owner of the property. He could not validly dispose
of the whole or even a portion thereof for the reason that he
was not the sole heir of Benjamin, as his mother only died in
1980.
Further, under Art. 1347, "No contract may be entered into
upon future inheritance except in cases expressly authorized
by law." A contract entered into upon future inheritance is
void. This provision applies when the ff. requisites concur:
(1) the succession has not yet been opened; (2) the object of
the contract forms part of the inheritance; & (3) the
promissor has, with respect to the object, an expectancy of a
right which is purely hereditary in nature.
In this case, at the time the Deed of Sale was executed,
Faustina’s will was not yet probated; the object of the
contract, the 9,000 sqm. property, still formed part of the
inheritance of his father Benjamin; & Domingo had a mere
inchoate hereditary right therein. Thus, the sale is void.
Article 906. Any compulsory heir to whom the testator has
left by any title less than the legitime belonging to him may
demand that the same be fully satisfied. (815)
Right of Completion of Legitime
 Art. 906 is referred to as the right of completion of
legitime (actio ad supplendam legitimam).
 This rule applies only to transmissions by gratuitous
title.
 Cross-references: Art. 855, Art. 909 & 91017
Things Received by Gratuitous Title
GR: Anything a compulsory heir receives by gratuitous title
from the predecessor is considered an advance on the
legitime & deducted therefrom.
EXC: The law provides two exceptions:
1. Art. 1062 – If the predecessor gave the
compulsory heir a donation inter vivos & provided
that it was not to be charged against the legitime
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
inofficious or excessive. (817)
Art. 907 & Art. 904 Share Same Premise
If the testamentary dispositions exceed the disposable
portion, the compulsory heirs may demand their reduction to
the extent that the legitimes have been impaired.
Article 908. To determine the legitime –
 The value of the property left at the death of the
testator shall be considered,
 Deducting all debts & charges, which shall not
include those imposed in the will.
17
Art. 855. The share of a child or descendant omitted in a will must first be
taken from the part of the estate not disposed of by the will, if any; if that is
not sufficient, so much as may be necessary must be taken proportionally
from the shares of the other compulsory heirs. (1080a)
Art. 909. Donations given to children shall be charged to their legitime.
Donations made to strangers shall be charged to that part of the estate of
which the testator could have disposed by his last will.
Insofar as they may be inofficious or may exceed the disposable portion, they
shall be reduced according to the rules established by this Code. (819a)
Art. 910. Donations which an illegitimate child may have received during the
lifetime of his father or mother, shall be charged to his legitime.
Should they exceed the portion that can be freely disposed of, they shall be
reduced in the manner prescribed by this Code. (847a)
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 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)
Computing Net Hereditary Estate
The process has three steps:
1. Compute for Gross Assets by determining the value
of inventory
1. Inventory all the existing assets
2. Appraisal ofthe existing assets at the time of
the decedent’s death
3. These assets include only those properties that
survive the decedent (i.e., those which are not
extinguished by his death)
2. Compute for Available Assets by deducting unpaid
debts and charges
1. All unpaid debts, charges & obligations of the
decedent should be deducted from the gross
assets.
2. Only those obligations with monetary value
not extinguished by death are considered.
Thus, those obligations which are purely
personal (intuitu personae) are not taken into
account.
3. The difference between the gross assets and
the unpaid obligations will be the available
assets.
3. Adding the value of donations inter vivos to get Net
Hereditary Estate
1. To the available assets should be added all the
inter vivos donations made by the decedent.
2. The donations inter vivos shall be valued as of
the time they were respectively made.
 Any increase 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 donation transfers
ownership to the donee.
3. The sum of the available assets & all the
donations inter vivos is the net hereditary
estate
Q: If the decedent donated P20 in the church all the time,
will that be included in the donations that are collated?
A: NO. Practically speaking, this would be difficult to do.
Note that the goal of the collation of donations is to
determine whether the donations exceed what is allowed to
be given away via legitime – thus, if the donations
aggregated are, in total, inofficious. Where the donations are
NOT inofficious, this won’t be a problem.
CASE: VIZCONDE V. CA
Facts: Estrelita was one of 5 children of Rafael & Salud. She
married Lauro & had 2 kids with him. Estrelita purchased
from her dad, Rafael, a parcel of land in Valenzuela. Later,
she sold this property & bought, using the money earned,
another lot in BF Homes, Parañaque. The remaining amount
of the proceeds was used in buying a car while the balance
was deposited in a bank. Later, in what is infamously known
as the Vizconde massacre, Estrelita & her 2 kids were
murdered. In the settlement of Estrelita’s estate, Lauro
signed an extrajudicial settlement with Rafael & Salud
where they agreed to split the properties 50-50. After this,
Rafael & Salud waived all other rights & claims. Later on, in
judicial proceedings following Rafael’s death, the probate
court nullified the transfer of the Valenzuel property from
Rafael to Estrelita, declaring the Parañaque property as
subject to collation. Is the transfer void?
Held: NO. Collation is the act by which descendants or other
forced heirs who intervene in the division 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 required of compulsory heirs succeeding with other
compulsory heirs and involves property or rights received by
donation or gratuitous title during the lifetime 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 gratuitous transfer to a forced heir is to
give him something in advance on account of his share in the
estate, 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 donation. 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 ownership upon its acceptance, hence any increase
in value or any deterioration or loss thereof is for the account
of the heir or donee.
The probate court erred in ordering the inclusion of
petitioner in the intestate estate proceeding. Petitioner, a son-
in-law of Rafael, is not one of Rafael’s compulsory heirs.
Even on the assumption that collation is appropriate in this
case, the probate court still made a reversible error in
ordering collation of the Parañaque property. What was
transferred to Estrelita was 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 show that the Paranaque property was
conveyed for and in consideration of P900,000, by Premier
Homes, Inc., to Estrelita, Rafael, the decedent, has no
participation therein, and Lauro who inherited the Paranaque
property is not one of Rafael’s heirs.
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 disposed
of, they shall be reduced in the manner prescribed by this
Code. (847a)
Donations Inter Vivos to Compulsory Heir
GR: Donations inter vivos to a compulsory heir shall be
deducted from his legitime, i.e., as an advance on his
legitime.
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 Applies to ALL compulsory heirs, from ascendants
to descendants
 Does NOT apply to the surviving spouse
o EXC: in cases of donations propter nuptias
& moderate gifts under Art. 87, Family
Code
EXC: If the donor provided otherwise; in which case the
donation will be imputed to the disposable portion of the
estate.
Donations Inter Vivos to Strangers
 A stranger is anyone who does not succeed as a
compulsory heir.
 Donations inter vivos to strangers are necessarily
imputed to the disposable portion.
Article 911. After the legitime has been determined in
accordance with the 3 preceding articles, the reduction shall
be made as follows:
(1) Donations shall be respected as long as the legitime can
be covered, reducing or annulling, if necessary, the devises
or legacies made in the will;
(2) The reduction of the devises or legacies shall be pro
rata, without any distinction whatever.
If the testator has directed that a certain devise or legacy be
paid in preference to others, it shall not suffer any reduction
until the latter have been applied in full to the payment of
the legitime.
(3) If the devise or legacy consists of a usufruct or life
annuity, whose value may be considered greater than that
of the disposable portion, the compulsory heirs may choose
between complying with the testamentary provision &
delivering to the devisee or legatee the part of the
inheritance of which the testator could freely dispose.
(820a)
Inviolability of the Legitime
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.
Order of Priority of Reductions
1. First, reduce pro rata the –
 Non-preferred legacies and devises &
 The testamentary dispositions to heirs
Among these legacies, devises, & testamentary
dispositions there is no preference.
2. Second, reduce pro rata the preferred legacies and
devises. (Art. 911, last par.)
3. Third, reduce the donations inter vivos according to the
inverse order of their dates [i.e., the oldest is the most
preferred)
Extent of Reductions
Reductions shall be to the extent required to complete the
legitimes, even if in the process the disposition is reduced to
nothing.
Devises, Legacies, Life Annuities, Pensions
1. 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
reduced, because the legitime cannot be impaired.
2. The testator can impose no usufruct or any other
encumbrance on the part that passes as legitime.
 3. Subject to the two rules just stated, the compulsory
heirs may elect between ceding to the devisee/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 pension.
Article 912. If the devise subject to reduction should
consist of real property, which cannot be conveniently
divided –
 It shall go to the devisee if the reduction does not
absorb ½ of its value; &
 In a contrary case, to the compulsory heirs;
But the former & 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 & of the share pertaining to him as
legitime. (821)
Coverage of Art. 912
(1) Cases where the devise has to be reduced &
(2) Cases where the thing given as a devise is indivisible.
Rules for Art. 912
1. If the extent of reduction is less than 1 /2 of the value
of the thing—it is given to the devisee
2. If extent of reduction is 1/2 or more of the value of the
thing—it is given to the compulsory heir
Either way, there is 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 [Art. 912], any heir or
devisee who did not have such right may exercise it; should
the latter not make use of it, the property shall be sold at
public auction at the instance of any one of the interested
parties. (822)
Constructive Partition: How to Go About It
1. Any other heir ordevisee, who elects to do so, may
acquire the thing and pay the parties (the compulsory
heir and the devisee in question) their respective
shares in money;
2. If no heir or devisee elects to acquire it, it shall be sold
at public auction and the net proceeds accordingly
divided between the parties concerned.
Similar to Co-Ownership & Partition
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 & bequeath the free
portion as he may deem fit. (n)
SECTION 6
Disinheritance
Article 915. A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for causes
expressly stated by
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law. (848a)
Entitlement of Heirs to Legitime
 GR: The testator cannot deprive the compulsory heirs
of the legitime
 EXC: Disinheritance
o Disinheritance is disfavored by law & is
strictly construed
Requisites for Disinheritance
(WUT-C-STP)
1. It must be made in a Will.
2. It must be Unconditional.
3. It must be Total.
4. It must be for a Cause specified by law.
5. The will must Specify the cause.
6. The cause must be True.
7. If the truth of the cause is denied, it must be Proved
by the proponent.
Effect of Disinheritance
The effect is total exclusion, i.e., forfeiting:
1. Legitime
2. His intestate portion, if any, &
3. Any testamentary disposition made in a prior will of
the disinheriting testator
Q: Does the will disinheriting have to be in a valid form?
A: YES.
Q: Does the will disinheriting have to be probated?
A: YES.
CASE: FRANCISCO V. ALFONSO
Facts: Gregorio & his wife Cirila had one child, Aida.
Gregorio, however, had a common-law wife, Julia, with
whom he had 7 children. During his lifetime, Gregorio sold
2 parcels of residential land to 2 of his illegitimate children
(Regina & Zenaida). After Gregorio died, Aida sought to
annul the sale to the 2 illegitimate kids. Should the
annulment of the sale be granted by SC?
Held: YES. The SC held that the sale was simulated, as there
was no consideration therefor. Regina & Zenaida, the
buyers, did not have any source of income in 1983 when
they bought the property. Further, assuming arguendo the
sale was not simulated, it would still be in violation of the
Civil Code insofar as the transaction affected Aida's
legitime. The sale, having been executed in 1983, when the
applicable law was the Civil Code, & not the Family Code,
was obviously to transfer the property to his illegitimate
daughters at the expense of his legitimate daughter. Before
his death, Gregorio had a change of heart & informed Aida
about the titles to the property being in possession of Regina
& Zenaida. Aida as Gregorio's compulsory heir cannot be
deprived of her share in the estate save by disinheritance as
prescribed by law. Thus, the sale is declared void.
Article 916. Disinheritance can be effected only through a
will wherein the legal cause therefor shall be specified.
(849)
Made in a Will
The will must be –
1. Formally valid &
2. Admitted to probate
Legal Cause accusation has been found groundless;
1. Art. 919 (for descendants) (5) When a child or descendant has been convicted of
2. Art. 920 (for ascendants) adultery or concubinage with the spouse of the
3. Art. 921 (for the surviving spouse) testator;
(6) When a child or descendant by fraud, violence,
Article 917. The burden of proving the truth of the cause intimidation, or undue influence causes the testator
for disinheritance shall rest upon the other heirs of the to make a will or to change one already made;
testator, if the disinherited heir should deny it. (850) (7) A refusal without justifiable cause to support the
parent or ascendant who disinherits such child or
Burden of Proof with Claimant Heirs descendant;
 Truth here is not presumed; it must be proved. (8) Maltreatment of the testator by word or deed, by the
 Disinherited heir needs only to DENY the cause & child or descendant;
the burden is shifted upon those who would uphold (9) When a child or descendant leads a dishonorable or
the disinheritance. disgraceful life;
(10) Conviction of a crime which carries with it the
Article 918. Disinheritance – penalty of civil interdiction. (756, 853, 674a)
 Without a specification of the cause, or
 For a cause the truth of which, if contradicted, is not Causes to Disinherit Legitimate & Illegitimate Children
proved, or which is not one of those set forth in this (1) When a child or descendant has been found guilty of
Code, an attempt against the life of the testator, his or her
Shall annul the institution of heirs insofar as it may spouse, descendants, or ascendants
prejudice the person disinherited; but the devises &  Not limit to “attempted” stage
legacies & other testamentary dispositions shall be valid to o All stages of commission are included
such extent as will not impair the legitime. (851a) —whether attempted, frustrated, or
consummated.
Effective Disinheritance  The felony, obviously, must be an intentional
 If the disinheritance lacks a requisite, the heir in one.
question gets his legitime.  Final conviction is required.
 As to whether he will also get any part of the (2) When a child or descendant has accused the testator
intestate portion or not, this depends! Did the testator of a crime for which the law prescribes imprisonment
give away the free portion through testamentary for 6 years or more, if the accusation has been found
dispositions? groundless
o If YES - these dispositions are valid & the  Accused - understood generically
compulsory heir improperly disinherited gets o Includes filing of the complaint before
only his legitime the prosecutor,
o If NO - the compulsory heir will be entitled to o Presenting incriminating evidence
his corresponding share of the free portion as against the testator,
well o Suppressing exculpatory evidence.
 Penalty must equate to at least 6 years’
Ineffective Preterition imprisonment
Disinheritance  Testator must be acquitted
Definition Failing to meet (1) The omission of an  Accusation must be found to be groundless -
even just 1 heir in the will, judgment must state either –
requisites for (2) which tacitly o That no crime was committed;
disinheritance deprived him of his o That the accused did not commit the
right to the legitime. crime; or
Effect Annuls the Throws open the entire  An acquittal on reasonable doubt will not be a
institution insofar inheritance except for ground for disinheritance.
as it may legacies & devices (3) When a child or descendant has been convicted of
prejudice the adultery or concubinage with the spouse of the
person testator
disinherited  Final conviction is required
except for  Similar to (1)
legacies & (4) When a child or descendant by fraud, violence,
devices intimidation, or undue influence (FIVU) causes the
testator to make a will or to change one already made
Article 919. The ff. shall be sufficient causes for the (5) A refusal without justifiable cause to support the
disinheritance of children & descendants, legitimate as well parent or ascendant who disinherits such child or
as illegitimate: descendant;
(3) When a child or descendant has been found guilty  Art. 203, Family Code –
of an attempt against the life of the testator, his or The obligation to give support is demandable
her spouse, descendants, or ascendants; from the time the person who has a right to
(4) When a child or descendant has accused the testator receive it needs it for maintenance, but it shall
of a crime for which the law prescribes not be paid except from the date of judicial or
imprisonment for six years or more, if the
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 extrajudicial demand.Support pendente lite
may be claimed in accordance with the Rules
of Court.
Payment shall be made within the first 5 days
of each corresponding month. When the
recipient dies, his heirs shall not be obliged to
return what he has received in advance.
 Art. 200, par. 3, Family Code - The demand
must be unjustifiably refused. Refusal may be
justified
o If the obligor does not have enough
resources for all whom he is obliged to
support.
o The ascendants are only third in the
hierarchy of preference among claimants
of support
(6) Maltreatment of the testator by word or deed, by the
child or descendant
 Required that the act of verbal or physical
assault be of a serious nature.
 No conviction or filing of the criminal case is
required
o THUS: A physical assault that would not
fall under par. 1 could fall under this
paragraph.
(7) When a child or descendant leads a dishonorable or
disgraceful life
 There MUST be habituality
 Could be sexual, related to drug pushing or
smuggling, etc.
(8) Conviction of a crime which carries with it the
penalty of civil interdiction.
 Accessory penalty of civil interdiction is
imposed with the principal penalties of death,
reclusion perpetua, and reclusion temporal.
 Final conviction is required
Q: What is the meaning of the term “undue influence” in
(4)?
A: It means some form of moral ascendancy over the
decedent.
Q: What about failure to give support, what is this referring
to?
A: Those who are legally obliged to support; one is legally
obliged to support –
1. Children
2. Parents
3. Those dependent on one’s income
Q: If a son is legally obliged to support his father, how can
you be justified in not supporting him?
A: You do not have enough resources for yourself. This
would not lead to disinheritance. The denial must be
unjustified.
CASE: PECSON V. MEDIAVILLO
Facts: When Rosario was 14, she received a letter from a
young man. Her grandfather Florencio, the decedent, talked
to her about it. Rosario allegedly showed disobedience &
disrespect to her grandfather, raising her hand as if to strike
him. Soon after the event, Rosario lost the use of her mental
powers & she has never regained them, except for very brief
periods. However, due to that event, Florencio disinherited
Rosario. Is the disinheritance valid?
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Held: The SC ruled that courts may inquire whether the
disinheritance has been made properly and for the causes
provided by law.
Given Rosario's tender years, & the fact that she very soon
thereafter lost the use of her mental faculties, the SC held
that Rosario was probably not responsible for the disrespect
& disobedience shown to her grandfather. Thus, the clause
pertaining to Rosario's disinheritance is contrary to law and
set aside.
Q: What crimes usually carry the punishment of civil
interdiction?
A: Usually when the accused is convicted of death, reclusion
perpetua, & reclusion temporal.
Article 920. The following shall be sufficient causes for the
disinheritance of parents or ascendants, whether legitimate
or illegitimate:
(1) When the parents have abandoned their children or
induced their daughters to live a corrupt or immoral
life, or attempted against their virtue;
(2) When the parent or ascendant has been convicted of
an attempt against the life of the testator, his or her
spouse, descendants, or ascendants;
(3) When the parent or ascendant has accused the
testator of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found to be false;
(4) When the parent or ascendant has been convicted of
adultery or concubinage with the spouse of the
testator;
(5) When the parent or ascendant by fraud, violence,
intimidation, or undue influence causes the testator
to make a will or to change one already made;
(6) The loss of parental authority for causes specified in
this Code;
(7) The refusal to support the children or descendants
without justifiable cause;
(8) An attempt by one of the parents against the life of
the other, unless there has been a reconciliation
between them. (756, 854, 674a)
Q: What are the instances unique to this provision?
A: The instances are –
1. If the parent or descendant abandons the child
2. The parent induces the child to live a corrupt life
 This applies not just to children, but to other
descendants like grandchildren (Tolentino)
 Applies generally to daughters, but could apply to
sons too
3. The parent makes an attempt against the child’s virtue
 Conviction is not required
4. Loss of parental authority under the Family Code
 Not all instances are covered; it has to be those
where the parent or ascendant has culpability, such
as –
1. Judicial deprivation of parental authority
on the ground of sexual abuse
2. Loss of parental authority as a result of
judicial declaration of abandonment of
the child
3. Judicial deprivation of parental authority
on the grounds of:
a. Excessively harsh or cruel
treatment of the child
 b. Giving the child corrupting (3) Attempt of respondent to corrupt or induce the
orders, counsel, or example petitioner, a common child, or a child of the
c. Compelling the child to beg petitioner, to engage in prostitution, or connivance in
d. Subjecting the child or allowing such corruption or inducement;
him to be subjected to acts of (4) Final judgment sentencing the respondent to
lasciviousness imprisonment of more than 6 years, even if
 Repeated or total refusal or failure to care for the pardoned;
child (5) Drug addiction or habitual alcoholism of the
 Chua v. Cabangbang - mere acquiescence— respondent;
without more—is not sufficient to constitute (6) Lesbianism or homosexuality of the respondent;
abandonment. (7) Contracting by the respondent of a subsequent
o The courts will look at the totality of the bigamous marriage, whether in the Philippines or
circumstances; it can be inferred abroad;
o Key is the intent to completely forego all (8) Sexual infidelity or perversion;
parental responsibilities & forever (9) Attempt by the respondent against the life of the
relinquish all parental claim in respect to petitioner; or
the child (10) Abandonment of the petitioner by respondent without
o Ex. In this case, the mom left her daughter justifiable cause for more than 1 year.
with the Cabangbangs when the child was
just 4 years old; she completely withheld Q: Which provisions are unique in the provision?
her presence, her love, her care, and the A: There are two –
opportunity to display maternal affection; 1. When the spouse gives grounds for legal separation
and totally denied her support and 2. When the spouse gives ground for loss of parental
maintenance. authority
5. One parent attempts on the life of another parent, unless
there has been reconciliation Loss of Parental Authority - Ascendant v. Spouse
 No conviction is required  Ascendant - actual loss of parental authority is
 Reconciliation - removesthe right of the required
descendant to disinherit & rescinds a  Spouse - giving grounds therefor is sufficient
disinheritance already made.
Summary of Causes for Disinheritance
Q: If the ascendant loses parental authority because the child Ascendants Descendants Spouse
reached 18, is that a ground? Same 1. When the heir is guilty of an attempt against
A: Not all grounds for loss of parental authority suffice to the life of the testator, his or her spouse,
disinherit an ascendant. The parents must perform some act descendants, or ascendants
on his part which involves culpability. That constitutes a 2. When the heir has accused the testator of a
ground for disinheritance. crime for which the law prescribes imprisonment
for 6 years or more, if the accusation has been
Article 921. The following shall be sufficient causes for found groundless
disinheriting a spouse: 3. When the heir by fraud, violence, intimidation,
(1) When the spouse has been convicted of an or undue influence causes the testator to make a
attempt against the life of the testator, his or her will or to change one already made
descendants, or ascendants; Unique 1. If the 1. Maltreatment 1. When
(2) When the spouse has accused the testator of a parent or of the testator by the spouse
crime for which the law prescribes imprisonment ascendant word or deed, by gives
of 6 years or more, and the accusation has been abandons the the child/ grounds for
found to be false; child, induces descendant legal
(3) When the spouse by fraud, violence, him or her to separation
intimidation, or undue influence cause the live a corrupt 2. When a child
testator to make a will or to change one already life, or makes or descendant 2. When
made; an attempt leads a the spouse
(4) When the spouse has given cause for legal against their dishonorable or gives
separation; virtue disgraceful life ground for
(5) When the spouse has given grounds for the loss loss of
of parental authority; 2. Loss of parental
(6) Unjustifiable refusal to support the children or 3. Conviction of a
parental crime which authority
the other spouse. (756, 855, 674a) authority carries with it the
under the penalty of civil
Grounds for Loss of Parental Authority (Art. 55, Family Code
Code) interdiction.
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common 3. One parent
child, or a child of the petitioner; makes an
(2) Physical violence or moral pressure to compel the attempts on
petitioner to change religious or political affiliation; the life of the

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 other, unless disinherited shall –
there has been 1. Take his or her place &
reconciliation 2. Preserve the rights of compulsory heirs with
Same 1. When the heir has been respect to the legitime;
for two convicted of adultery or BUT the disinherited parent shall not have the (1) usufruct
types concubinage with the spouse of the or (2) administration of the property which constitutes the
of testator legitime. (857)
heirs
2. Refusal without justifiable cause Right of Representation in Disinheritance
to support the decedent who The right of representation is granted only to descendants of
disinherits such heir disinherited descendants.
 Art. 972 - The right of representation takes place in
Article 922. A subsequent reconciliation between the the direct descending line, but never in the ascending
offender & the offended person deprives the latter of the  Disinherited Child v. Ascendant or Spouse
right to disinherit, & renders ineffectual any disinheritance Disinherited Heir Representative
that may have been made. (856) Disinherited Child Children or other
descendants
Reconciliation Parent, ascendant, or No right of
 Either an express pardon or unequivocal conduct of spouse representation
the testator towards the offending heir which shows
testator’s intent to forgive Extent of Representation
o If express pardon - a general pardon extended  With respect to legitime (compulsory)
on the testator’s deathbed to all who offended  With respect to intestate portion (intestate)
him is not enough; it must be a pardon  NOT testamentary succession
expressly & concretely extended to the
offender, who accepts it No Administration or Usufruct for Disinherited Parent
o If conduct - the intent to forgive must be  Refers to Art. 225 & 226, Family Code
clear. This is a question of fact to be resolved o Art. 225, par. 1 - The father & the mother
by courts shall jointly exercise legal guardianship over
the property of their unemancipated common
Effect of Reconciliation child without the necessity of a court
Occurring Prior to Right to disinherit is extinguished appointment
Disinheritance o Art. 226, par. 2 - The right of the parents over
Occurring After Right to disinherit is set aside the fruits and income of the child’s property
Disinheritance shall be limited primarily to the child’s
support and secondarily to the collective daily
Effects of Setting Aside the Disinheritance needs of the family.
1. The disinherited heir is restored to his legitime.
2. If the disinheriting will did not dispose of the Class Discussion
disposable portion, the disinherited heir is entitled to Q: What happens if the ascendant is being deprived of his
his proportionate share (in intestacy) if any, of the legitime due to disinheritance?
disposable portion. A: His children cannot exercise the right of representation.
3. If the disinheriting will or any subsequent will That is because there is direct descending line.
disposed of the disposable portion (or any part
thereof) in favor of testamentary heirs, legatees, or SECTION 7.
devisees, such dispositions remain valid. Legacies & Devises

Q1: X cheated on Y with Jenny. Y threatens X that Y will
disinherit X. Eventually, though, Y forgives X, & writes in
her will that she will allow X to inherit. Is X still considered
disinherited?
A1: No.
Q2: What if Y puts a 2nd will that Y wants to disinherit X
again?
A2: The disinheritance will be ineffectual, since Y already
forgave X.
Article 924. All things and rights which are within the
commerce of man be bequeathed or devised. (865a)
Legacy
Testamentary disposition of personal property by particular
title
Devise
Testamentary disposition of real property by particular title

Q: What if X wrote, “I forgive everyone who has sinned Importance of Distinction

against me.” Is this considered a revocation of the Legatees or devisees must be distinguished from heirs
inheritance? because of the effects of preterition.
A: No, because forgiveness must be specifically granted to a  Heir – receives an aliquot or fractional portion of the
particular person. inheritance

Article 923. The children & descendants of the person

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  Legatee or devisee (Lee/Dee)18 – receives specific
property
What can be Bequeathed
 Anything within the commerce of man
 It is not even required that the thing bequeathed
belongs to the testator
Limitations on L/D
It should not impair the legitime.
Class Discussion
Q: The testator says, “I give X my farm in Batangas.”
A: X is a devise.
Q: The testator says, “I give X ½ of my properties.”
A: X is an heir, as he gets an aliquot part.
Article 925. A testator may charge with legacies & devises
not only his compulsory heirs but also the legatees &
devisees.
The latter shall be liable for the charge only to the extent of
the value of the legacy or the devise received by them. The
compulsory heirs shall not be liable for the charge beyond
the amount of the free portion given them. (858a)
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
GR: The estate
EXC: The testator may impose the burden on –
 A testamentary heir
 A devisee
 A legatee
If the testator does so & said successor accepts the
disposition in his favor, the latter shall be bound to deliver
the legacy or devise to the person specified.
 This is a subsidiary L/D
 As far as the heir or Lee/Dee is considered, it is a
mode (Art. 882)
Error as to Compulsory Heir
Art. 925 is erroneous, as a compulsory heir cannot be
burdened with a legacy or devise that would impair his
legitime.
 ONLY a testamentary heir could be so burdened
Extent of Liability of the Heir or Lee/Dee
The value of the benefit received from the testator
Class Discussion
Q: What is meant by “charge”?
A: It means the duty or obligation to give the legacy or
device. Thus, the law means that the heirs are bound to give
the particular property, as dictated by the testator, to the
legatee or devisee.
Q: The testator says, “I give him 5 cars but charge him to
give 5 to my daughter.” Is this allowed?
18
Abbreviations will be used throughout Section 7 to pertain to either
“devise or legacy” (L/D) or “devisee or legatee” (Lee/Dee)
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A: Yes.
Q: The testator says, “I give him 5 cars but charge him to
give 6 to my daughter.” Is this allowed?
A: No. That is already giving more than the legatee is being
given.
When it comes to compulsory heirs, however, the charge
also cannot impair the legitime.
Article 927. If 2 or more heirs take possession of the estate,
they shall be solidarily liable for the loss or destruction of a
thing devised or bequeathed, even though only one of them
should have been negligent. (n)
Liability in Art. 927
 The basis of liability is malice, fault, or negligence
 The same liability may attach to the executor or
administrator, in proper cases
Class Discussion
Q: Heir X gives the devisee the car owed to him, but it is
already broken due to the negligence of Heir X. Who is
liable, only Heir X, or all the heirs?
A: All the heirs.
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 &
 Indicated only by its kind. (860)
Who is Liable for an Eviction
GR: The estate
BUT: In case of a subsidiary legacy or devise, it is the heir,
devisee, or legacy charged
Class Discussion
Q: What is meant by “eviction”?
A: If the Lee/Dee loses what is given to him because a third
party has a better right. The heir is therefore liable to the
legatee or devisee when this happens, but only of the thing is
indeterminate and indicated only as to the kind of property.
Q: What is an example of an indeterminate property
bequeathed?
A: The testator, “X must give Y a piece of my jewelry.”
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)
L/D of a Thing Owned in Part by the Testator
GR: Conveys only the interest or part owned by the testator
EXC: If the testator provides otherwise; then –
1. He may convey more than he owns
 The estate should attempt to acquire the part
or interested owned by other parties
 If the other parties are unwilling to alienate,
the estate will give the Lee/Dee the monetary
equivalent
2. He may convey less than he owns (Art. 794)
Article 930. The legacy or devise of a thing belonging to
another person is void, if the testator erroneously believed
that the thing pertained to him. have subsequently alienated by him.
But if the thing bequeathed, though not belonging to the If the legatee or devisee acquires it gratuitously after such
testator when he made the will, afterwards becomes his, by time, he can claim nothing by virtue of the legacy or
whatever title, the disposition shall take effect. (862a) devise; but if it has been acquired by onerous title he can
demand reimbursement from the heir or the estate. (878a)
Article 931. If the testator orders that a thing belonging to
another be acquired in order that it be given to a legatee or L/D of a Thing Already Belonging to Lee/Dee or
devisee, the heir upon whom the obligation is imposed or Subsequently Acquired by the Him
the estate must acquire it If Lee/Dee already The L/D is void.
& give the same to the legatee or devisee; but if the owner owned the thing at the  It is NOT validated by an
of the thing refuses to alienate the same, or demands an time of the execution alienation made by the
excessive price therefor, the heir or the estate shall only be of the will Lee/Dee subsequent to the
obliged to give the just value of the thing. (861a) making of the will
o EXC: If the acquirer is
L/D of a Thing Belonging to Another the testator himself
If the testator ordered the The order should be If the thing was  IF the testator erroneously
acquisition of the thing complied with owned by another believed it belonged to him –
 If the owner does not person at the time of the L/D is void
want to part with the the making of the will  IF the testator was not in error
thing, the L/D should & acquired thereafter o If the thing was acquired
give the monetary by the Lee/Dee onerously by Lee/Dee –
equivalent Lee/Dee gets
If the testator erroneously The L/D is void reimbursement
believed that the thing o If the thing was acquired
belonged to him EXC: If, subsequent to the gratuitously by the
making of the disposition, Lee/Dee – nothing more
the thing is acquired by the is due
testator onerously or If the thing was L/D should be deemed valid, if
gratuitously, the disposition owned by the testator applying Art. 957, par. 2
is validated at the time of the
If the testator knew the thing The Code is silent, but making of the will &
did not belong to him but Balane thinks it should be acquired thereafter
did not order the acquisition valid because – from him by the
 It’s like an order to Lee/Dee
acquire
 Doubts are resolved in L/D to Remove an Encumbrance Over a Thing Belonging to
favor of testacy the Lee/Dee
This is valid, if the encumbrance can be removed for a
Class Discussion consideration.
Q1: What if the testator thought he owned a lot, but it turned
out it was owned by someone else. The testator truly Article 934. If the testator should bequeath or devise
believed it belongs to him. Is this valid? something pledged or mortgaged to secure a recoverable
A1: It is void. debt before the execution of the will, the estate is obliged to
Q2: What if the testator knew it did not belong to him, but he pay the debt, unless the contrary intention appears.
gave it anyway? The same rule applies when the thing is pledged or
A2: It can be construed as an implied order to acquire the mortgaged after the execution of the will.
property, addressed to the instituted heir or legatee given that Any other charge, perpetual or temporary, with which the
order. thing bequeathed is burdened, passes with it to the legatee
Q3: What if the owner refuses to sell or charges an excessive or devisee. (867a)
price?
A3: The one who is supposed to receive that property is L/D of a Thing Pledged or Mortgaged
entitled to the value of that property from the heir.  The encumbrance must be removed by paying the
debt, unless the testator intended otherwise
Article 932. The legacy or devise of a thing which at the  A charge other than a pledge or mortgage (e.g., as a
time of the execution of the will already belonged to the usufruct or easement), passes to the Lee/Dee together
legatee or devisee shall be ineffective, even though another with the thing
person may have some interest therein.
If the testator expressly orders that the thing be freed from Article 935. The legacy of a credit against a third person or
such interest or encumbrance, the legacy or devise shall be of the remission or release of a debt of the legatee 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

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effective only as regards that part of the credit or debt
existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by
assigning to the legatee all rights of action it may have
against the debtor. In the second case, by giving the legatee
an acquittance, should he request one.
In both cases, the legacy shall comprise all interests on the
credit or debt which may be due the testator at the time of
his death. (870a)
Class Discussion
Q: What is meant by remission in this provision?
A: The privilege of not having to pay the debt also passes on
the legatee.
Q: In a legacy of a remission of a debt, who owes whom?
A: The legatee is the debtor (the one who owes the debt to
the testator). The testator’s grant is the remission or
forgiving of the debtor-legatee’s debt.
The amount subject to remission will be based on the debt as
remaining at the time of death of the testator.
Article 936. The legacy referred to in the preceding Art.
shall lapse if the testator, after having made it, should bring
an action against the debtor for the payment of his debt,
even if such payment should not have been effected at the
time of his death.
The legacy to the debtor of the thing pledged by him is
understood to discharge only the right of pledge. (871)
Class Discussion
Q: What is meant by the term “lapse”?
A: He erases it by initiating an action for collection against
you. For example, a testator may provide in the will that he
will give a devisee a Baguio house, but the next week, he
sells the same Baguio house. Evidently, the house may no
longer be given to the devisee.
Article 937. A generic legacy of release or remission of
debts comprises those existing at the time of the execution
of the will, but not subsequent ones. (872)
Legacy of Credit or Remission
 Applies ONLY to amount still unpaid at the time of
the testator’s death
 Revoked if the testator subsequently sues the debtor
for collection
 If generic, applies only to those existing at the time
of the execution of the will
o UNLESS otherwise provided
Article 938. A legacy or devise made to a creditor shall not
be applied to his credit, unless the testator so expressly
declares.
In the latter case, the creditor shall have the right to collect
the excess, if any, of the credit or of the legacy or devise.
(837a)
L/D to a Creditor
GR: Will be treated like any other L/D & therefore will not
be imputed to the debt.
EXC: Will be imputed to the debt if the testator so provides,
& if the debt exceeds the L/D, the excess may be demanded
as an obligation of the estate
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Article 939. If the testator orders the payment of what he
believes he owes but does not in fact owe, the disposition
shall be considered as not written. If as regards a specified
debt more than the amount thereof is ordered paid, the
excess is not due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the
fulfillment of natural obligations. (n)
Testamentary Instruction to Pay a Debt
 NOT a testamentary disposition; it is just a direction
to discharge a civil obligation
 Instruction to pay a non-existing debt – should be
disregarded; this is solutio indebiti
 Instruction to pay more than what is due – effective
ONLY as to what is due
o UNLESS a bigger amount specified
constitutes a natural obligation
Article 940. In alternative legacies or devises, the choice is
presumed to be left to –
 The heir upon whom the obligation to give the
legacy or devise may be imposed, or
 The executor or administrator of the estate if no
particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the
choice, dies before making it, this right shall pass to the
respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein
provided, the provisions of this Code regulating obligations
of the same kind shall be observed, save such modifications
as may appear from the intention expressed by the testator.
(874a)
Alternative Legacies or Devises
One which provides that, among several things mentioned,
only 1 is to be given.
Right of Choice
GR: The one entitled to choose –
1. If direct L/D – the estate, through the executor or
administrator
2. If subsidiary L/D - The heir or Lee/Dee charged
*These parties are, analogously, in the position of debtor. 19
EXC: If the testator provides that the Lee/Dee (or any other
person) will choose
Death of the Chooser Before Choice is Made
If the person who is to choose dies before choice is made:
 If the choice belonged to the executor or
administrator – the right is transmitted to his
successor in office
 If the choice belonged to an heir or Lee/Dee – the
right is transmitted to his own heirs
Don’t Forget
 The choice is irrevocable once made.
 See Arts. 1199-1205 for rules on alternative
obligations.
19
Article 1200. The right of choice belongs to the debtor, unless it has been
expressly granted to the creditor.
The debtor shall have no right to choose those prestations which are
impossible, unlawful or which could not have been the object of the
obligation. (1132)

Article 941. A legacy of generic personal property shall be
valid even if there be no things of the same kind in the
estate.
A devise of indeterminate real property shall be valid only
if there be immovable property of its kind in the estate.
The right of choice shall belong to the executor or
administrator who shall comply with the legacy by the
delivery of a thing which is neither of inferior nor of
superior quality. (875a)
Rules on Validity of Generic L/Ds
 Generic Legacy – valid EVEN IF no such movables
exist in the testator’s estate upon his death
 Generic Devise – valid ONLY IF there exists such an
immovable in the testator’s estate at the time of his
death
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 irrevocable.
(877a)
Right of Choice
GR: The executor or administrator, acting for the estate
EXC: If the testator gives the right of choice to –
 The Lee/Dee, or
 The heirs on whom the obligation to give the benefit
is imposed (in a subsidiary L/D)
Limitation of Choice
 The choice must be limited to something which is
neither superior nor inferior in quality.
 Rule applies whether the choice belongs to the
executor/administrator or the Lee/Dee
Finality of Choice
A choice, once made, is irrevocable.
Transmissibility of Right to Choose
If choice belongs to executor Right is transmitted to his
or administrator & he dies successor in the position
before making the choice
If the choices belongs to the Right passes to his heirs
Lee/Dee & he dies before
making the choice
Illustrative Example of Generic Legacy
The will states that the decedent bequeaths X with a car,
without specifying which. This is valid even if it turns out
the decedent does not have a car to give away; the executor
or administrator must, instead, buy the car to be given to X.
Article 944. A legacy for education lasts until –
 The legatee is of age, or
 Beyond the age of majority in order that the legatee
may finish some professional, vocational or general
course
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 PROVIDED he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee,
if the testator has not otherwise provided.
 If the testator has not fixed the amount of such
legacies, it shall be fixed in accordance with –
(1) The social standing and the circumstances of
the legatee and
(2) The value of the estate.
If the testator or during his lifetime used to give the legatee
a certain sum of money or other things by way of support,
the same amount shall be deemed bequeathed,
 UNLESS it be markedly disproportionate to the
value of the estate. (879a)
Legacy for Education
 Duration – either:
o Age of majority (18) or
o The completion of a professional, vocational,
or general course, whichever comes later –
BUT in this case, only if the legatee pursue
his studies diligently
 Amount –
o Primarily – that fixed by the testator
o Secondarily – that which is proper, as
determined by 2 variables:
 The social standing & circumstances
of the legatee
 The value of the disposable portion
Legacy for Support
 Duration – the legatee’s lifetime
o UNLESS the testator provides otherwise
 Amount –
o Primarily – that fixed by the testator
o 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
o Tertiarily – that which is reasonable, on the
basis of two variables –
 The social standing & circumstances
of the legatee
 The value of the disposable portion
Class Discussion
Q: X is taking up 2nd year high school but is not pursuing it
diligently. Will his legacy barred if he keeps getting delayed
so that he is already past 18, but is still in high school?
A: Yes, the legacy will be barred. It will be barred if he does
not pursue it diligently; it applies even at high school level.
Article 945. If a periodical pension, or a certain annual,
monthly, or weekly amount is bequeathed, the legatee may
petition the court for –
 The first installment upon the death of the testator,
and
 For the following ones which shall be due at the
beginning of each period;
Such payment shall not be returned, even though the
legatee should die before the expiration of the period which
has commenced. (880a)
Legacy of Periodic Pension
  Demandability Conditional (suspensive) Upon the testator’s death, if
o Upon the testator’s death, & the condition is fulfilled
o The succeeding ones, at the beginning of the
period without duty to reimburse should the Fruits of L/Ds
legatee die before the lapse of the period Type of L/Ds When it Pertains to L/D
 This should be harmonized with the rules on the Pure & determinate Upon the testator’s death
settlement of estates, i.e., the debts should first be Pure & generic Upon determination, unless testator
paid before any testamentary grants can be complied provides otherwise
with Suspensive term Upon the arrival of the term
o UNLESS the legatee files a bond under Rule
90, Sec. 1 of the Rules of Court *Although the law does not so
o HOWEVER, if the legacy should prove to not explicitly declare, the descendants
be inofficious, the date of effectivity shall of illegitimate children shall inherit
retroact to the decedent’s death per capita if ALL the illegitimate
children renounce.
Article 946. If the thing bequeathed should be subject to a If these descendants can inherit per
usufruct, the legatee or devisee shall respect such right until stirpes, they can, in proper cases,
it is legally extinguished. (868a) inherit per capita.
Conditional Upon the happening of the
Article 947. The legatee or devisee acquires a right to the (suspensive) condition, unless the testator
pure & simple legacies or devises from the death of the otherwise provides
testator, & transmits it to his heirs. (881a)
Example from Paras
Article 948. If the legacy or devise is of a specific & Q: T in his will gave D a parcel of land 100 sqm. in area. At
determinate thing pertaining to the testator, the legatee or his death, T left 3 parcels of land, each of which was 100
devisee acquires, [upon the death of the testator], – sqm. Two weeks after T’s death, the executor made his
1. The ownership thereof, as well as choice. Aside from delivering the land to the devisee, what
2. Any growing fruits, or fruits must also be given?
3. Unborn offspring of animals, or A: The fruits accruing to the land from the time the choice
4. Uncollected income was made. All fruits already gathered previous to the choice
 BUT not the income which was due & belong to the estate. All growing fruits must of course be
unpaid before the latter's death. given to the devisee.
From the moment of the testator's death, the thing HOWEVER, if the testator has expressly ordered so, then all
bequeathed shall be at the risk of the legatee or devisee, those accruing from his death must be given.
who shall, therefore, bear its loss or deterioration, & shall
be benefited by its increase or improvement, without Class Discussion
prejudice to the responsibility of the executor or Q: Who gets the fruits of the property when there is a
administrator. (882a) suspensive term?
A: The estate, until the term arrives. When the term arrives,
Article 949. If the bequest should not be of a specific & the fruits thereafter accruing will pertain to the Lee/Dee.
determinate thing, but is generic or of quantity, its fruits &
interests from the time of the death of the testator shall Q: What about the fruits between the time the testator dies
pertain to the legatee or devisee if the testator has expressly until the time the suspensive term happens. Who gets the
so ordered. (884a) fruits?
A: These will pertain to the estate, until the term arrives.
Demandability of L/Ds When the term arrives, the fruits thereafter accruing will
Type of L/D When Demandable pertain to the Lee/Dee.
Pure & determinate Upon testator’s death
Pure & generic Q: What if the property subject to a suspensive term is
Suspensive term Upon the arrival of the term producing rent, & between the time the testator died & up to
Conditional (suspensive) Upon the happening of the the time the property is actually delivered there was a lot of
condition rent earned. Who will the fruits pertain to?
A: It will go to the estate. The rental is a civil fruit. If it
accrues when the Lee/Dee has yet to acquire ownership, then
When Ownership Vests in L/Ds
the Lee/Dee will not get those fruits. They will only get the
Type of L/D When Ownership Vests
fruits when they get the property to be inherited itself, as it is
Pure & determinate Upon testator’s death
only then that ownership vests upon them.
Pure & generic a) If from the testator’s
estate – upon the testator’s
Article 950. If the estate should not be sufficient to cover
death
all the legacies or devises, their payment shall be made in
b) If acquired from a third
the ff. order:
person – upon acquisition
(RP-SED-PRO RATA – RP said “pro rata!”)
Suspensive term Upon the arrival of the (1) Remuneratory legacies or devises;
term, but the right to it vests (2) Legacies or devises declared by the testator to be
upon the testator’s death Preferential;
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 (3) Legacies for Support;
(4) Legacies for Education; Article 953. The legatee or devisee cannot take possession
(5) Legacies or devises of a specific, Determinate thing of the thing bequeathed upon his own authority, but shall
which forms a part of the estate; request its delivery & possession of –
(6) All others PRO RATA. (887a)  The heir charged with the legacy or devise, or
 The executor or administrator of the estate should
Rules Laid Down in Art. 950 he be authorized by the court to deliver it. (885a)
This article lays down an order of preference among L/Ds in
case the estate is not sufficient for all of them. Delivery of the Thing Bequeathed
 The L/D vests upon the testator’s death, but actual
Art. 911 vis-à-vis Art. 950 delivery does not take place at that time.
 Art. 911 also contains a rule for reduction of L/Ds &  The ff. must first occur:
the order of preference there is different. 1. Debts first have to be paid,
 Art. 911 provides that – 2. Legitimes have to be determined,
o All the non-preferred L/Ds will be reduced 3. The testamentary dispositions (including
pro rata, & L/Ds) must be computed, lest they impair
o The preferred L/Ds are reduced last. the legitimes.
o This is different from Art. 950  It is only after these steps that the beneficiaries of the
 How to reconcile both Articles – will can take possession.
When Art. 911 If reductions have to be made
applies because the legitimes have been Article 954. The legatee or devisee cannot accept a part of
impaired, i.e., if the L/Ds have the legacy or devise & repudiate the other, if the latter be
exceeded the disposable portion onerous.
When Art. 950 If the reason for the reduction is Should he die before having accepted the legacy or devise,
applies NOT the impairment of legitimes; leaving several heirs, some of the latter may accept & the
examples – others may repudiate the share respectively belonging to
 There are no legitimes because them in the legacy or devise. (889a)
there are no compulsory heirs;
or Acceptance
 The legitimes have already GR: Acceptance may be total or partial
been satisfied through EXC: If the L/D is partly onerous & partly gratuitous, the
donations inter vivos. recipient can not accept the gratuitouspart & renounce the
onerous part
Class Discussion  HOWEVER, anyother combination is permitted
Q: What is meant by a remuneratory L/Ds?
A: These are the ones that come with a consideration. It is in
the form of a payment; that is why it is given priority.
Article 951. The thing bequeathed shall be delivered Acceptance or Repudiation by heirs of L/D
 With all its accessories & accessories & If the L/D dies before accepting or renouncing, his heirs
 In the condition in which it may be upon the death shall exercise such right as to their pro-indiviso share, & in
of the testator. (883a) the same manner as outlined above.

Class Discussion
Obligation to Deliver
The obligation to deliver the accessions & accessories exists Q: If X receives a legacy and also receives an inheritance as
an heir from the decedent, may he accept one and repudiate
even if the testator does not explicitly provide for it. 20
the other?
A: Yes.
Crucial Time for the Application of Art. 951
The crucial time is the testator’s death, as that is when
Q: Is the only time when X cannot make a choice be when
successional rights vest.
the thing is partly onerous and partly gratuitous?
 Thus, the thing must be delivered in the condition in
A: Yes.
which it is at that time.
Q: What is an example of an onerous legacy?
Article 952. The heir, charged with a legacy or devise, or
A: X bequeaths Y with X’s apartment in Rockwell but tells
the executor or administrator of the estate, must deliver the
Y that Y must pay all the related real estate taxes. Also,
very thing bequeathed if he is able to do so & cannot
another example is if X tells Y that Y must house X’s
discharge this obligation by paying its value.
mother until X’s mother dies.
Legacies of money must be paid in cash, even though the
heir or the estate may not have any.
Article 955. The legatee or devisee of two legacies or
The expenses necessary for the delivery of the thing
devises, one of which is onerous, cannot renounce the
bequeathed shall be for the account of the heir or the estate,
onerous one & accept the other.
but without prejudice to the legitime. (886a)
 If both are onerous or gratuitous, he shall be free to
20 accept or renounce both, or to renounce either.
Art. 1166. The obligation to give a determinate thing includes that of  BUT: If the testator intended that the two legacies
delivering all its accessions and accessories, even though they may not have
been mentioned. (1097a)
or devises should be inseparable from each other,
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 the legatee or devisee must either accept or
renounce both.
Any compulsory heir who is at the same time a legatee or
devisee may
 Waive the inheritance & accept the legacy or
devise, or
 Renounce the latter & accept the former, or
 Waive or accept both. (890a)
2 L/Ds to the Same Recipient
If both gratuitous The recipient may accept or renounce
If both onerous either or both.
If one is The recipient cannot accept the
gratuitous, & the gratuitous & renounce the onerous.
other is onerous BUT any other combination is
permitted
L/D to one who is also a compulsory heir
The recipient may accept either or both, i.e., the L/D & the
legitime.
Effect if will provides otherwise in Art. 954 & 955
All of the rules above apply in the absence of a stipulation in
the will providing 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 substitution
and of the right of accretion. (888a)
Rules in Case of Repudiation by or Incapacity of Lee/Dee
 Primarily – substitution
 Secondarily – accretion
 Tertiarily – intestacy
*J. Hofileña said this order is very important.
Article 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in
such a manner that it does not retain either the form
or the denomination it had;
(2) If the testator by any title or for any cause alienates
the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or
devise shall be without effect only with respect to
the part thus alienated.
 If, after the alienation, the thing should again
belong to the testator, even if it be by reason
of nullity of the contract, the legacy or
devise shall not thereafter be valid, unless
the reacquisition shall have been effected by
virtue of the exercise of the right of
repurchase;
(3) If the thing bequeathed is totally lost during the
lifetime of the testator, or after his death without the
heir's fault.
 Nevertheless, the person obliged to pay the
legacy or devise shall be liable for eviction
if the thing bequeathed should not have been
determinate as to its kind, in accordance
with the provisions of Art. 928. (869a)
GR: Instances when the L/D is revoked by operation of law
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 Transformation — e.g., the testator converts a
plantation into a fishpond.
 Alienation — the alienation by the testator may be
onerous or gratuitous.
o The alienation revokes the L/D even if for
any reason the thing reverts to the testator.
 Total loss — this will be a cause for revocation only
if it takes place before the testator’s death.
o Fortuitous loss after the testator’s death will
not constitute revocation
 This is true despite the wording of
par. 3 of Art. 857, because legally
the disposition takes effect upon
death.
o Therefore, fortuitous loss after the testator’s
death will simply be an instance of “res perit
domino'' and will be borne by the Lee/Dee
Exceptions
1. If the reversion is caused by the annulment of the
alienation & the cause for annulment was vitiation of
consent on the grantor’s part, either by reason of
incapacity or of duress
2. If the reversion is by virtue of redemption in a sale
with pacto de retro
Class Discussion
Q: What is meant by alienation?
A: When the testator donates or sells the property to
someone else.
Q: X, decedent, sold a property to Y. Y then lost the
property in a gambling game, so that A owned the property.
X managed to buy it back from A. Is the devise reinstated?
A: NO. The devise is not reinstated. This falls under the
general rule that when a testator reacquires the property the
property will not once more be considered an effective
devise.
Article 958. A mistake as to the name of the thing
bequeathed or devised, is of no consequence, if it is
possible to identify the thing which the testator intended to
bequeath or devise. (n)
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)
Application of Art. 959
Art. 959 applies not only to Lee/Dees, but also to all
testamentary heirs.
Relatives Referred to in Art. 959
The term “relatives” extends only up to the 5 th degree of
consanguinity (the limit in intestacy).
 BUT representation (a feature of intestate succession)
does not operate in the application of this article
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.
 BUT: An institution (by way of simple substitution,
of the legatee’s “descendientes legitimos” was valid
and covered all legitimate descendants, i.e., children,
grandchildren, etc. per capita, in accord with Art. 846
(Belen v. BPI)
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
dispose of) all the property belonging to the testator.
 In such case, legal succession shall take
place only with respect to the property of
which the testator has not disposed;
(3) If [any of the ff. occur --]
 The suspensive condition attached to the
institution of heir does not happen or is not
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fulfilled,
 The heir dies before the testator, or
 The heir repudiates the inheritance, there
being no substitution, and no right of
accretion takes place;
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code. (912a)
Intestate Succession Defined by Drafters of the Civil Code
Intestate or legal succession takes place by operation of law
in the absence of a valid will.
Art. 960 (1)
There are three instances contained in this par. which lead to
the same result, i.e., there is no will.
 A will that has subsequently lost its validity is one
that has been revoked without a later one taking its
place.
Art. 960 (2)
Intestacy here may be total or partial.
Art. 960 (3)
Intestacy here may also be total or partial.
 Dependent on the extent of the disposition that turns
out to be inoperative
Art. 960 (4)
Intestacy here may also be total or partial.
 Incapacity to succeed is found in Art. 1027, 1028 &
103221
21
Art. 1027. The ff. are incapable of succeeding:
(1) The priest who heard the confession of the testator during his last illness,
or the minister of the gospel who extended spiritual aid to him during the
same period;
(2) The relatives of such priest or minister of the gospel within the fourth
degree, the church, order, chapter, community, organization, or institution to
which such priest or minister may belong;
(3) A guardian with respect to testamentary dispositions given by a ward in
his favor before the final accounts of the guardianship have been approved,
even if the testator should die after the approval thereof; nevertheless, any
provision made by the ward in favor of the guardian when the latter is his
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;
(5) Any physician, surgeon, nurse, health officer or druggist who took care of
the testator during his last illness;
(6) Individuals, associations and corporations not permitted by law to inherit.
(745, 752, 753, 754a)
Art. 1028. The prohibitions mentioned in Art. 739, concerning donations inter
vivos shall apply to testamentary provisions. (n)
Art. 1032. The ff. are incapable of succeeding by reason of unworthiness:
(1) Parents who have abandoned their children or induced their daughters to
lead a corrupt or immoral life, or attempted
against their virtue;
(2) Any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been
found groundless;
(4) Any heir of full age who, having knowledge of the violent death of the
testator, should fail to report it to an officer of the law within a month, unless
the authorities have already taken action; this prohibition shall not apply to
cases wherein, according to law, there is no obligation to make an accusation;
(5) Any person convicted of adultery or concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence, intimidation, or undue influence
should cause the testator to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a will,
or from revoking one already made, or who supplants, conceals, or alters the
latter's will;
(8) Any person who falsifies or forges a supposed will of the decedent. (756,
673, 674a)

Other Causes of Intestacy
1. Happening of resolutory condition
2. Expiration of resolutory term
3. Preterition
Class Discussion
Q: What does legal or intestate succession mean?
A: It means the type of succession that takes place by
operation of law in the absence of a valid will.
Q: Why is the heir in intestate succession called a legal heir?
A: This is because he is an heir by operation of law.
Q: If he is an heir by virtue of a last will and testament, what
is he called?
A: He is called a testamentary heir.
Q: What is an example of a resolutory term in a will?
A: X states in his will that Y will be his heir to a property for
10 years. At the end of the 10-year period, the property will
be divided using intestate rules.
CASE: MACROHON V. SAAVEDRA (1927)
Facts: Macario & Victoria, husband & wife, executed a joint
will. The two had no kids. The provisions of the will provide
that, in the event that Macario dies first, a list of lots would
be given to his two favorite nephews. Meanwhile, if Victoria
dies first, a parcel of land would go to her sister.
Victoria died first. As such, the provisions as to Victoria’s
wishes were implemented. However, it turns out that there
was a property that was not disposed of in the provisions of
the will. The probate court partitioned this latter property
according to the rules of intestate succession. Counsel for
Macario opposed the grant of the property to the intestate
heirs of Victoria; he claimed that, as there was a will, the
will’s disposition should be followed exclusively. As such,
since the will stated that the properties should also partially
go to Macario’s beloved nephews, it should go to the latter
rather than Victoria’s intestate heirs. Is this contention valid?
Held: NO. The rule of indivisibility of a testator’s will does
not hold in the Philippine jurisdiction. This is evident from
the provisions of Art. 764 & 912. Thus, a person having
executed a will may die partially intestate.
Furthermore, as regards the conditional legacy in favor of
the beloved nephews of Macario, the conditional legatee
does not acquire the legacy, if the event on which it depends
has not occurred, in which case the legacy will pass to the
persons named to succeed the testator in accordance with
law. In other words, legal or intestate succession will take
place as to that legacy.
Finally, when a will executed jointly by husband & wife
provides that in case of the death of the husband before the
wife, certain relatives will inherit specific property, & if any
of said relatives die before the husband the survivor will
inherit all, the acquisition of the property by said relatives
depends upon the husband’s dying before the wife, the last
part of said testamentary provision being a substitution of
legatees in case some of them die before the husband.
Article 961. In default of testamentary heirs, the law vests
the inheritance, in accordance with the rules hereinafter set
forth –
 In the legitimate & illegitimate relatives of the
deceased,
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 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 Art. 1006 with respect to
relatives of the full and half blood, and of Art. 987, par. 2,
concerning division between the paternal and maternal
lines. (912a)
Exclusion & Concurrence in Intestacy
 Intestacy operates on the same principles as
succession to the legitime.
 The two principles, operate sometimes
simultaneously, sometimes singly
Basis of Intestate Succession
 The presumed will of the decedent
 Manresa: “Love, it is said, first descends, then
ascends, and, finally, spreads sideways.” So, first to
the kids, then to the parents, then to the collaterals.
Basic Rules of Intestacy
1. The rule of preference of lines
 The 3 lines are: the ascending, the
descending, & the collateral
 The descending excludes the ascending and
the collateral, and the ascending excludes the
collateral
2. The rule of proximity in degree
 The nearer exclude the more remote, without
prejudice to the right of representation
3. The rule of equality among relatives of the same
degree
 If the nearer exclude the more remote, then
those of equal degree should inherit in equal
shares
 Exceptions:
1) The rule of preference of lines;
2) The distinction between legitimate &
illegitimate filiation (2:1)
3) The rule of division by line in the
ascending line
4) The distinction between full-blood and
half-blood relationship among brothers
and sisters, as well as nephews and
nieces
5) Representation
6) Concurrence of nephews/nieces &
aunts/uncles
CASE: BAGUNU V. PIEDAD (2000)
Facts: Ofelia is the daughter of the 1st cousin of the
decedent, a collateral relative of the 5th civil degree.
Meanwhile, Pastora, maternal aunt of the decedent, is a
collateral relative of the 3rd civil degree of the decedent. The
probate court declared Pastora to be the sole heir of the
decedent. Ofelia protested that she should also be allowed to
inherit alongside Pastora. Ofelia thus posed this question:
Does the rule of proximity in intestate succession find
application among collateral relatives?
Held: YES. The rule on proximity is a concept that favors
the relatives nearest in degree to the decedent and excludes
the more distant ones, except when and to the extent that the  Direct Line — There is no legal limit to the number
right of representation can apply. of degrees for entitlement to intestate succession.
The right of representation is a rule by which a more distant o Mode of counting degrees in the direct line:
blood relative of a decedent is, by operation of law, raised to  One generation = 1 degree
the same place and degree of relationship as that of a closer  Parent-child = 1 degree;
blood relative of the same decedent. The representative  Grandparent-grandchild = 2
thereby steps into the shoes of the person he represents & degrees;
succeeds, not from the latter, but from the person to whose  Great-grandparent-great-grandchild
estate the person represented would have succeeded. In the = 3 degrees;
collateral line, the right of representation may only take  So on & so forth.
place in favor of the children of brothers or sisters of the  Collateral line — Computation of degrees is
decedent when such children survive with their uncles & particularly important in the collateral line because
aunts. However, the right of representation does not apply to intestate succession extends only to the 5th degree of
"collateral relatives within the 5th civil degree" (to which collateral relationship
group both Ofelia & Pastora belong). Among collateral o Mode of counting degrees in the collateral
relatives, except only in the case of nephews and nieces of line:
the decedent concurring with their uncles or aunts, the rule  From one reference point, ascend to
of proximity (Art. 962) is an absolute rule. In determining nearest common ancestor [If there
the degree of relationship of the collateral relatives of the are more than one, choose any one].
decedent, Art. 966 gives direction.
Thus, Pastora, being a relative within the 3rd civil degree,  Then descend to the other reference
excludes Ofelia, a relative of the 5th degree, from point.
succeeding ab intestato to the estate of the decedent.  Number of generations constituting
the ascent & the descent is the
SUBSECTION 1. Relationship. degree of collateral relationship.
o Collaterals by degrees –
Article 963. Proximity of relationship is determined by the Degrees Relatives
number of generations. Each generation forms a degree. 1st degree None
(915)
2nd degree Brothers/sisters
3rd degree 1) Uncles/Aunts
Article 964. A series of degrees forms a line, which may be 2) Nephews/Nieces
either direct or collateral.
4th degree 1) First cousins
A direct line is that constituted by the series of degrees
2) Brothers/Sisters of a
among ascendants & descendants.
grandparent (i.e., grand-
A collateral line is that constituted by the series of degrees
uncles/grand-aunts)
among persons who are not ascendants &descendants, but
3) Grandchildren of a
who come from a common ancestor. (916a)
brother/sister (i.e., grand-
nephews/grand-nieces)
Article 965. The direct line is either descending or 5th degree 1) Children of a first cousin
ascending. 2) First cousins of a parent
The former unites the head of the family with those who 3) Brothers/sisters of a
descend from him. great-grandparent
The latter binds a person with those from whom he 4) Great grandchildren of a
descends. (917) brother/sister.
Article 966. In the line, as many degrees are counted as Article 967. Full blood relationship is that existing between
there are generations or persons, excluding the progenitor. persons who have the same father & the same mother. Half
In the direct line, ascent is made to the common ancestor. blood relationship is that existing between persons who
Thus, the child is 1 degree removed from the parent, 2 from have the same father, but not the same mother, or the same
the grandfather, & 3 from the great-grandparent. mother, but not the same father. (920a)
In the collateral line, ascent is made to the common
ancestor & then descent is made to the person with whom
Importance of Distinction Between Full-Blood & Half-Blood
the computation is to be made. Thus, a person is 2 degrees
Relationship
removed from his brother, 3 from his uncle, who is the
 With reference to brothers & sisters and nephews &
brother of his father, 4 from his first cousin, & so forth.
nieces, there is a ratio of 2:1 for full-blood & half-
(918a)
blood relationship respectively
 With respect to other collateral relatives, the full-
Collateral—Article 964, par. 3.
blood & half-blood relationship is not material.
 Direct and Collateral. — Importance of distinction:
The direct is preferred over the collateral.
*Article 968. If there are several relatives of the same
 Descending direct and ascending direct. —
degree, and one or some of them are unwilling or
Importance of distinction: The descending is
incapacitated to succeed, his portion shall accrue to the
preferred over the ascending.
others of the same degree, save the right of representation
when it should take place. (922)
Computation of Degrees

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Accretion in Intestacy
There is accretion in intestacy among heirs of the same
degree, in case of predecease, incapacity, or renunciation of
any one of them.
 BUT: In case of predecease or incapacity,
representation, if proper, will prevent accretion from
occurring.
 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.
o Follows the principle of preference of lines
o Ex. 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 2nd degree) because they are not
inheriting together in the first place.
Class Discussion
Q: Which has priority in this provision, representation or
accretion?
A: Representation is preferred by the Code.
Q: What if the estate is P300,000? There are 3 heirs. One,
however, refuses or is unwilling or incapacitated to accept.
What happens to his portion?
A: If there is no right of representation, the 2 remaining heirs
will get his share and get P150,000 each.
Q: Would you apply the same rule if the 2 heirs left are the
father and the son?
A: NO. The heirs must belong to the same degree and belong
to the same line as well, due to the preference of lines.
Though father and son are both first degree heirs, there is a
preference for descendants.
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 & cannot represent the person or persons
repudiating the inheritance. (923)
Effect of Renunciation by All in the Same Degree
The right of succession should first be passed on the heirs in
succeeding degrees (in successive order) BEFORE the next
line can succeed
 Follows the rule of preference of lines
Descending line first If all the descendants of a certain
degree renounce, succession
passes to the descendants of the
next degree, & so on, ad
indefinitum
Ascending line next If there is no one left in the
descending line, the heirs in the
ascending acquire the right of
succession, again in order of
degrees of proximity
Collateral line first ONLY if all the descendants &
ascendants renounce will the
collateral relatives acquire the
right to succeed
Predecease or Incapacity by All in the Same Degree
 This eventuality is not provided for by this article
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 BUT: The rules above outlined are equally applicable
in such a situation
o EXC: In cases where representation is proper,
i.e., in the descending line
Representation Never Applies in Universal Renunciation
There is no representation in renunciation.
Class Discussion
Q: If an original heir dies, where will his share go?
A: If there is only 1 heir in that degree, it will go to the next
degree. If there are several relatives remaining in the same
degree, all must renounce.
Q: What if there are 3 children, and each of them has 2
children of his own. One of the 3 children, X, dies ahead of
the testator. Who will get the deceased child’s share?
A: The 2 children of X will inherit through the right of
representation. The 2 children will share the X’s share
equally.
Q: What is the difference of per capita and per stirpes?
A: Per capita is per individual, while stirpes is per branch.
The rule in intestacy is per branch. The inheritance will thus
go to the relatives of the same degree before going to the
next.
Q: What if there are 3 children of the decedent, all of whom
renounce, and they themselves have 2 children each. Who
will inherit?
A: The 2 children each of the 3 children will inherit per
capita in their own right & not by the right of representation.
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 & the degree of the person represented, & acquires
the rights which the latter would have if he were living or if
he could have inherited. (942a)
Representation Defined
It is a right created by fiction of law, by virtue of which the
representative is: (PDA)
 Raised to the Place & the Degree of the person
represented, &
 Acquires the rights which the latter would have if he
were living or if he could have inherited.
Instances When Representation Occurs
1. Predecease
2. Incapacity or Unworthiness
3. Disinheritance
CASE: ANG V. PACUNIO (2015)
Facts: The Pacunios allege to be the grandchildren of
Udiaan, the owner of the disputed parcel of land. They filed
suit to nullify a sale of said lot to Ang; apparently, the lot
had been sold to Ang by an imposter of Udiaan 20 year after
the latter already died. The lower courts held that the
Pacunios were not real parties-in-interest to the case; being
the grandchildren of Udiaan, they would only have a right to
succeed if their mother, one of Udiaan’s children,
predeceased Udiaan. However, this fact was never
established by the grandchildren. Nevertheless, the courts
nullified the sale, given that Udiaan was already dead when
the sale happened. Was this correct?
Held: NO. The Pacunios are not real parties-in-interest &
thus have no standing to nullify the deed of sale. For the
right of representation to be available to the Pacunios, they
should have shown, first, that their mother: (a) predeceased
Udiaan, (b) is incapacitated to inherit, or (c) was
disinherited, if Udiaan died testate. However, the Pacunios
failed to establish this. This being the case, no relief should
have been awarded by the lower courts to the Pacunios. No
relief can be granted to one who is not party to the case.
Instances When Representation Does Not Occur
Renunciation (Art. 977)
Kinds of Succession in Which Representation Operates
1. The legitime
 There is no express provision on
representation in the legitime, except Art.
923,22 in case of disinheritance
2. Intestacy
*NOTE: There is no representation in testamentary
succession.
In What Lines Does Representation Obtain
 With respect to the legitime – in the direct
descending line only
 With respect to intestacy
o In the direct descending line
o In 1 instance, in the collateral line –
nephews & nieces representing brothers &
sisters of the deceased
Representation by Illegitimate Children
1. If the child to be represented is legitimate — only
legitimate children/descendants can represent him
(Art. 992)
2. If the child to be represented is illegitimate — both
legitimate & illegitimate children/descendants can
represent him (Arts. 902, 989, 990).
 Ex. X has a legitimate child, A, & illegitimate
child B. Both of them in turn have 1
illegitimate & 1 legitimate child. If both A &
B predecease X –
o A, being legitimate can be represented
only by his 1 legitimate child.
o B, being illegitimate, can be
represented by both his kids.
Representation of & by the Adopted Child
An adopted can neither represent nor be represented.
CASE: TEOTICA V. DEL VAL
Facts: When Maria Mortera died, she left a will wherein she
disposed of P20,000 to Rene, husband of Maria’s niece,
Josefina. Josefina was made sole & universal heir.
22
Art. 923. The children & descendants of the person disinherited shall take
his or her place & shall preserve the rights of compulsory heirs with respect to
the legitime; but the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime.
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Ana, claiming to be an adopted child of Francisca Mortera, a
deceased sister of the testatrix Maria, as well as an
acknowledged natural (i.e., illegitimate) child of Jose
Mortera, a deceased brother of the same testatrix, filed an
opposition to the probate of the will.
Vicente filed a motion to dismiss the opposition of Ana,
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.
Vicente & the other heirs continue to claim that Ana has no
personality to intervene. Does Ana have a right to intervene?
Held: NO. It is a well-settled rule that in order that a person
may be allowed to intervene in a probate proceeding 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; & an interested party has been defined as one who
would be benefited by the estate (i.e., an heir or creditor).
FIRST, Ana does not have legal personality to use if based
on the will, as she was not named therein as an heir.
SECOND, assuming the will is held to be inoperative, Ana
would STILL not be entitled to intervene. Only legal heirs
are benefited by the right of representation. The law does not
give Ana any right to succeed to the estate of the deceased
sister of both Jose & Francisca. And this is so because being
an illegitimate child she is prohibited by law from
succeeding to the legitimate relatives of her natural father.
The oppositor cannot also derive comfort from the fact that
she is an adopted child of Francisca Mortera because under
the law the relationship established by adoption is limited
solely to the adopter & the adopted & 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
relationship is created between the adopted & the collaterals
of the adopting parents. As a consequence, the adopted is an
heir of the adopter but not of the relatives of the adopter.
It thus appears that Ana has no right to intervene either as
testamentary or as legal heir in this probate proceeding
contrary to the ruling of the court a quo.
Class Discussion
Q: What if the son has an adopted child? Can the adopted
child represent him in this inheritance?
A: NO. The adopted child can neither represent the son or be
represented. The relationship forged by adoption is only
between the adopted child & the adopting parents.
Article 971. The representative is called to the succession
by the law & not by the person represented. The
representative does not succeed the person represented but
the one whom the person represented would have
succeeded. (n)
Rules on Qualification
1. The representative must be qualified to succeed the
decedent (Art. 973).
 Rationale: Art. 971.
2. BUT the representative need not be qualified to
succeed the person represented (Art. 971).
3. The person represented need not be qualified to
succeed the decedent
 Reason why representation is taking place is
that the person represented is not qualified,
because of predecease, or incapacity, or
disinheritance.
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)
In What Line does Representation Obtain
1. With respect to the legitime — in the direct
descending line only (Art. 972).
2. With respect to intestacy —
a. In the direct descending line
b. In only 1 instance, collateral – nephews &
nieces representing brothers & sisters of the
deceased (Art. 975)
Class Discussion
Q: In the collateral line, who can inherit by the right of
representation?
A: The children of brothers & sisters, where the latter
predecease or become incapacitated.
Q: What if there are no brothers & sisters, but only nephews
and nieces?
A: The nephews and nieces will inherit by their own right.
Q: If any of the nephews or nieces should also predecease
the decedent, can his or her children represent him by right
of representation?
A: NO. Only nephews or nieces may inherit according to the
law and thus does not extend the right of representation to
their descendants.
However, they MUST survive together with their brothers
and sisters to inherit.
Q: What if the remaining children are 3 nephews and the
children of a predeceased niece? Can the grandnieces inherit
by the right of representation?
A: NO. The law only mentions that nephews and nieces may
inherit by the right of representation.
Article 973. In order that representation may take place, it
is necessary that the representative himself be capable of
succeeding the decedent. (n)
Article 974. Whenever there is succession by
representation, the division of the estate shall be made per
stirpes,23 in such manner that the representative or
representatives shall not inherit more than what the person
they represent would inherit, if he were living or could
inherit. (926a)
How Representation Operates
Per stirpes — the representative/s receive only what the
person represented would have received.
 If there is more than one representative in the same
degree, then divide the portion equally, without
prejudice to the distinction between legitimate and
illegitimate children, when applicable.
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 uncles or
aunts.
23
Per stirpes means per branch.
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 BUT if they alone survive, they shall inherit in
equal portions. (927)
Representation by Grandchildren & Representation by
nephews/nieces: Difference in Rule
If all the children are The grandchildren still
disqualified inherit by representation
(Art. 982)
If all the brothers/sisters are The nephews/nieces inherit
disqualified per capita
*Note: If only some, not all children or brothers/sisters are
disqualified, the rule is the same.
Article 976. A person may represent him whose inheritance
he has renounced. (928a)
Representation by a Renouncer
 Although a renouncer cannot be represented, he can
represent the person whose inheritance he has
renounced
 Reason – Art.971: “The representative does not
succeed the person represented but the one whom the
person represented would have succeeded.”
Article 977. Heirs who repudiate their share may not be
represented. (929a)
Class Discussion
Q: How many degrees away from the person represented
may one having the right of representation be?
A: He can only be raised by one degree, one degree higher
than him, and not 2 or more degrees.
BUT Tolentino said that a great grandson could be called to
the representation & inherit from his great grandfather. This
is true even if the great grandfather dies even before the
great grandson is born. But that’s Tolentino. For Justice
Hofileña thinks that this is NOT allowed. The great grandson
should be conceived or born, at the minimum, by the time
the great grandfather dies.
Illustrative Example: Kat Answered This So She Coulda
F*cked Up
Q1: X has 5 kids, A, B, C, D, & E. X makes a will instituting
all his kids to the free portion. However, C predeceases him,
D is unworthy to succeed, and E renounces. Meanwhile, C,
D & E have 2 kids each. How is X’s estate to be divided if it
is worth P600,000?
A1: The apportioning is as follows –
 A – 225K
 B – 225K
 2 kids of C – 37.5K each
 2 kids of D – 37.5K each
Q2: Supposing X dies intestate, all the other factors being
the same, how is X’s estate to be apportioned?
A2: The apportioning is as follows –
 A – 150K
 B – 150K
 2 kids of C – 75K each
 2 kids of D – 75K each
SECTION 2. Order of Intestate Succession
INTESTATE HEIRS
 1. Legitimate Children/Descendants (LC)
2. Legitimate Parents/Ascendants (LP) Excluded by: legitimate children
3. Illegitimate Children/Descendants (IC) Illegitimate Parents Exclude:
4. Illegitimate Parents (IP) 1. Collaterals
5. Surviving Spouse (SS) 2. State
6. Brothers, Sisters, Nephews, Nieces (BSNN)
7. Other Collaterals — to the 5th degree (O)
8. State (S) Concur with: Surviving Spouse

Note: The first 5 classes of intestate heirs are also Excluded by:
compulsory heirs. Consequently: 1. Legitimate children
1. There is, to a considerable extent, an overlapping of 2. Illegitimate children
compulsory & intestate succession; i.e., the legitime Surviving Spouse Excludes:
& the intestate portions merge. 1 Collaterals other than BSNN
2. There is a very close parallel between the rules of 3. State
compulsory succession & those of intestate
succession.
Concurs with:
1. Legitimate children
Class Discussion
2. Illegitimate children
Q: Who are the intestate heirs who are also compulsory
3. Legitimate parents
heirs?
4. Illegitimate parents
A: These are:
5. BSNN
1. Legitimate Children
2. Illegitimate Children
3. Legitimate Parents Excluded by: no one
4. Illegitimate Parents Brothers & Sisters, Exclude:
5. Surviving Spouse Nephews & Nieces 1. All other collaterals
(BSNN) 2. The State
Q: Who are the concurring heirs?
A: The surviving spouse & the illegitimate children. Concurs with: Surviving spouse

INTESTACY
Excluded by:
1. Legitimate children
Rules of Exclusion and Concurrence
2. Illegitimate children
Decedent Heirs
3. Legitimate parents
Legitimate Children Exclude: 4. Illegitimate parents
1. Parents
Other Collaterals Exclude:
2. Collaterals
1. Collaterals in remoter degrees
3. State
2. The State

Concur with:
Concurs with: Collaterals in the
1. Surviving spouse
same degree
2. Illegitimate Children

Excluded by:
Excluded by: no one
1. Legitimate children
Illegitimate Children Exclude: 2. Illegitimate children
1. Illegitimate parents 3. Legitimate parents
2. Collaterals 4. Illegitimate parents
3. State 5. Surviving spouse
6. BSNN
Concur with: State Excludes: no one
1. Surviving spouse
2. Legitimate Children
Concurs with: no one
3. Legitimate Parents

Excluded by: everyone

Excluded by: no one
Legitimate Parents Exclude:
Combinations in Intestate Succession
1. Collaterals
Heir Share
2. State
Legitimate children The whole estate, divided equally
alone
Concur with: Legitimate children IC gets ½ of LC’s share of the
1. Illegitimate Children & illegitimate whole estate
2. Surviving Spouse children

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Legitimate children The whole estate, divided equally full & half-bloods
& surviving spouse (like the surviving spouse is 1 LC) Other collaterals The whole estate, per capita, the
Legitimate children, The whole estate, divided equally nearer in degree excluding the more
surviving spouse & (like the surviving spouse is 1 LC) remote
illegitimate children & each IC getting ½ of the share of State The whole estate
the LC.
Legitimate parents The whole estate, divided equally A. Assignment & disposition of
alone assets
Legitimate The whole estate, observing, in 1. If decedent is PH resident at
ascendants alone proper cases, rule of division by any time
(other than parents) line a. Personal property – to
Legitimate parents LP – ½ of the estate municipality of last
& illegitimate IC – ½ of the estate residence
children b. Real property – where
Legitimate parents LP – ½ of the estate situated
& surviving spouse SS – ½ of the estate 2. If decedent was never a PH
Legitimate parents, LP – ½ of the estate resident – where property is
surviving spouse & SS – ¼ of the estate situated
illegitimate children IC – ¼ of the estate
Illegitimate children The whole estate, divided equally B. How property is used
alone 1. For the benefit of public
Illegitimate children IC – ½ of the estate educational & charitable
& surviving spouse SS – ½ of the estate institutions in the respective
Surviving spouse The whole estate municipalities/cities
alone 2. Alternatively, at the instance
Surviving spouse & IP – ½ of the estate of an interested party or motu
illegitimate parents SS – ½ of the estate proprio, court may order
Surviving spouse & SS – ½ of the estate creation of a permanent trust
legitimate or BSNN (whether legitimate or for the benefit of institutions
illegitimate brothers, illegitimate) – ½ of the estate (with concerned
sisters, nieces & NN inheriting by representation, in
nephews proper cases)
Illegitimate parents The whole estate
alone Clavano’s Diagram: State Edition
Illegitimate parents IP – excluded
& children of any LC/IC – whole estate, divided
kind equally
LC & IC – IC only get ½ the share
of a LC
Legitimate brothers Whole estate, but half-siblings only
& sisters alone get ½ the share of a full-blood
sibling
Legitimate BSNN Whole estate, but
 Half-siblings only get ½ the
share of a full-blood sibling, &
 Nephews & nieces inherit by
the right of representation in
proper cases
Nephews & nieces Nephews & nieces inherit the
with aunts & uncles whole estate per capita, while SYMBOLS:
observing the 2:1 proportion of  PP – Personal property
full- & half-blood fraternity,  RP – Real property
excluding aunts & uncles
Illegitimate brothers Whole estate, but half-siblings only
& sisters alone get ½ the share of a full-blood
sibling
Illegitimate BSNN Whole estate, but
 Half-siblings only get ½ the
share of a full-blood sibling, &
 Nephews & nieces inherit by
the right of representation in
proper cases
Nephews & nieces The whole estate, per capita, but
alone observing 2:1 proportion between

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 Class Discussion
Q: Suppose that a man, during his lifetime, entered into 3
Clavano’s Diagram: Intestate Edition valid marriages. Is there a distinction between his kids from
the 1st, 2nd & 3rd marriage?
A: NO. They are all considered legitimate even if they
should come from different marriages.

CASE: SAYSON V. CA
Facts: Eleno & Rafaela were husband & wife, with 5
children. One of these kids was Teodoro. Teodoro, in turn,
married Isabel, & with her adopted 2 kids, Delia &
Edmondo, & 1 legitimate child, Doribel. When Teodoro &
Isabel died, Teodoro’s siblings, as well as Isabel’s mother,
jointly filed a complaint for partition & accounting of
Teodoro & Isabel’s estate. The adopted children & Doribel
opposed this, claiming that only they were entitled to the
estate, being exclusive heirs of Teodoro & Isabel.
Meanwhile, the adopted children & Doribel filed a
complaint to have the partitioning & accounting of Eleno &
Rafaela’s estate, claiming to be entitled to the share of
Teodoro by right of representation. Chaos ensued. Are the
adopted children entitled to Eleno & Rafaela’s estate, as well
as Teodoro & Isabel’s?
Held: The adopted children & Doribel are entitled to their
parent’s estate, as their compulsory heirs. Doribel, as
legitimate child, is evidently entitled. And the law provides
that an adopted heir succeeds to the property of the adopting
parents like a legitimate child, & a decree of adoption cannot
be assailed indirectly via a complaint for partition.
ALONE: (Dividing the whole estate)
1. LC – divide equally HOWEVER, while Doribel is entitled to represent her
2. LP – divide equally parents in their share of the estate of her grandparents, Eleno
3. LA – division of line & Rafaela, the adopted kids, Delia & Edmondo, are not so
4. IC – divide equally
5. IP – divide equally
entitled. While it is true that the adopted child shall be
6. SS deemed to be a legitimate child & have the same right as the
7. LBS – 2:1 for full/half-blood; with NN by right of representation latter, these rights do not include the right of representation.
8. IBS – 2:1 for full/half-blood; with NN by right of representation The relationship created by the adoption is between only the
9. NN – per capita; 2:1 (nearer excludes the more remote)
10. Collaterals – per capita (nearer excludes the more remote) adopting parents and the adopted child & does not extend to
11. State the blood relatives of either party.
*NOTE: The Court completely forgot that, since Teodoro
ONLY CONCURRING: ALL getting ½ each survived Eleno, there was no question of the application of
1. SS + IC the right to representation.
2. SS + IP
3. SS + LBSNN
4. SS + IBSNN CASE: NERI V. HEIRS OF HADJI YUSOP UY & JULPHA
*NN – inherit by representation IBRAHIM-UY
Facts: Anunciacion died intestate. Her husband Enrique
SYMBOLS: executed an Extrajudicial Settlement of the Estate with
 SS – Surviving Spouse Absolute Deed of Sale, adjudicating among himself & his 5
 IC – Illegitimate Child children the homestead properties left by his wife, &
 LC – Legitimate Child thereafter conveyed them to the Sps Uy. The children later
 LA – Legitimate Ascendants
 LBS – Legitimate brothers & sisters on filed a Complaint for Annulment of Sale, assailing the
 IBS – Illegitimate brothers & sisters validity of the sale for having been sold beyond the 5-year
 NN – Nephews & nieces prohibitory period from the issuance of the homestead
patents. Also, Eutropia and Victoria (children from the 1st
SUBSECTION 1. Descending Direct LineArticle. marriage to Gonzalo) were excluded therefrom. Is their
contention correct?
Article 978. Succession pertains, in the first place, to the Held: YES. The SC held that in the execution of the
descending direct line. (930) Extrajudicial Settlement, ALL the heirs of Anunciacion
should have participated. Considering that Eutropia and
Article 979. Legitimate children & their descendants Victoria (children from 1st marriage) were admittedly
succeed the parents & other ascendants, without distinction excluded and minor child Douglas not properly represented
as to sex or age, & even if they should come from different (because his father Enrique was merely clothed with powers
marriages. of administration and bereft of any authority to dispose of
An adopted child succeeds to the property of the adopting their shares), the settlement was not valid and binding upon
parents in the same manner as a legitimate child. (931a) them and consequently, a total nullity.
However, while the settlement is void, the subsequent sale is
valid but only with respect to the proportionate shares of
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Enrique (surviving spouse) and Napoleon, Alicia, and
Visminda (legitimate children) and Rosa (minor child not
properly represented but who subsequently ratified the
defect). These heirs have acquired their respective shares in
the properties of Anunciacion from the moment of her death
and as owners thereof, they can very well sell their
undivided share in the estate.
CASE: ROSALES V. ROSALES
Facts: Petra died intestate. She was survived by her husband
Fortunato and two children Magna and Antonio, as well as
by Mackiquerox, the son of her predeceased son Carterio.
Carterio’s widow Irene insisted in getting a share of the
estate in her capacity as surviving spouse of Carterio. Does
Irene have a right to claim that she is an heir?
Held: NO. The SC held that Irene is not a compulsory heir of
Petra. The surviving spouse is considered a 3 rd person with
respect to the estate of a parents-in-law. Her son,
Mackiquerox, however, succeeds in his own right. He
succeeds not his predeceased father Carterio but his paternal
grandmother Petra. Irene’s contention that Carterio at the
time of his death had an inchoate right to the properties of
Petra must fail. Said right of Carterio was extinguished by
his death, which is why Mackiquerox succeeded from Petra
by right of representation.
CASE: BERCILES V. GSIS
Facts: Judge Pascual Berciles died intestate. Following this,
there were two sets of claimants for survivors’ benefits
under the GSIS – Iluminada & her 4 children, Flor & her 4
children. The GSIS, in a resolution, concluded that
Iluminada was able to sufficiently prove her marriage to
Pascual, whereas Flor was not. Additionally, however, the
GSIS declared that Flor’s 4 children, Voltaire, Maria, Mervy
& Rhoda, were illegitimate children of Pascual. Voltaire was
an acknowledged natural child of Pascual, while Maria,
Mervy, & Rhoda ere illegitimate children of Pascual. Was
the GSIS correct when it arrived at this conclusion?
Held: NO. The SC held that an illegitimate (spurious) child,
to be entitled to support & successional rights from his
parents, must prove his filiation. This may be done by means
of voluntary or compulsory recognition of the relationship.
For this purpose, the provisions concerning natural children
are held applicable. Thus, recognition is voluntary when
made in the record of birth, a will, a statement before a court
of record, or in any authentic writing (Art. 278), &
compulsory when made by means of a court action in the
cases enumerated in Arts. 283 & 284. Illegitimate children
are entitled to support & successional rights but for Art. 269
to be applicable, there must be admission or recognition of
the paternity of the illegitimate child. The SC held that the
baptismal & birth certificates presented, as well as the sworn
statement by the sister-in-law of Pascual as to the fact that
their two families lived closely together, and the family
pictures do not constitute proof of filiation. Thus, the SC
held that the GSIS gravely abused its discretion in approving
the assailed Resolution, which adopted the erroneous
recommendation of the Committee on Claims Settlement, a
recommendation which has no legal or factual basis to stand
on.
Class Discussion
Q: If there are still children who are all alive, may the
grandchildren, children of said children, inherit from a
decedent?
A: No, because the nearer exclude the more remote.
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Q: How about if a child dies but said child has a grandchild?
A: The grandchild will inherit by right of representation. The
grandchild may inherit as much as their ascendant would
have inherited.
Q: May there be disinheritance in intestate succession?
A: NO. Disinheritance entails testamentary succession, and
only with regard to the legitime, not the free portion.
Q: There are 4 sons, all of whom have two children. The
estate is P1M. The fourth son renounces his inheritance.
How do they divide the inheritance?
A: There is no right of representation in renunciation. Thus,
the estate will be divided by 3 instead of 4. If any of the 3
sons predecease, their share will go to their respective 2
children.
Q: Supposing all the children predecease, leaving only
grandchildren. How will the grandchildren inherit?
A: The grandchildren will inherit by the right of
representation. They will divide whatever their parents
would have received among themselves.
Q: What if all the grandchildren predecease but they have
children of their own?
A: There will still be right of representation for the great
grandchildren.
Q: Is there a need to compute for legitime first before
computing for intestate shares?
A: NO. Note that the share based on the legitime and the
intestate share actually MERGE already. Therefore there is
no need to compute for the legitime and add up the share
received via intestate succession.
Article 980. The children of the deceased shall always
inherit from him in their own right, dividing the inheritance
in equal shares. (932)
Article 981. Should children of the deceased &
descendants of other children who are dead, survive, the
former shall inherit in their own right, & the latter by right
of representation. (934a)
Article 982. The grandchildren and other descendants shall
inherit by right of representation, and if any one of them
should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal
portions. (933)
Article 983. If illegitimate children survive with legitimate
children, the shares of the former shall be in the proportions
prescribed by Art. 895. (n)
Simplified Division for Art. 983
The proportion of the shares of legitimate & illegitimate
children has been simplified to 2:1 by virtue of the
amendments in Arts. 163 & 176 of the Family Code.
Two-Step Process for Dividing Shares
1. Segregate the legitime of the children – both
legitimate & illegitimate
2. If any is left, apportion it in proportion of 2:1
  It is possible, depending on the number of
children, that the estate is not sufficient to
satisfy the legitimes. If so, the second step may
not be feasible. In that case, the legitimes of
the illegitimates will have to be reduced pro
rata.
Class Discussion
Q: The testator left 2 legitimate children & 4 illegitimate
children. What is the share of each? How do you divide P3M
among them?
A: The legitime of each legitimate child is P750,000.
Meanwhile, the legitime of each illegitimate child is
P375,000. After this, there is no longer a free portion.
This can be computed using just the equations of intestate
succession.
Q: What if, instead of 4 illegitimates, there are 6
illegitimates, while there remains to be 2 legitimate
children? If there is still P3M, how will this be divided?
Q: First, one must compute for the legitime of the legitimate
children. There are 2, so their share, together, will be P1.5M.
Meanwhile, the 4 illegitimate children will have to divide
P1.5M among themselves. They each will get P375,000.
Article 984. [Repealed by R.A. No. 8552]
SUBSECTION 2. Ascending Direct Line
Article 985. In default of legitimate children & descendants
of the deceased, his parents & ascendants shall inherit from
him, to the exclusion of collateral relatives. (935a)
Article 986. The father & mother, if living, shall inherit in
equal shares. Should one only of them survive, he or she
shall succeed to the entire estate of the child. (936)
Article 987. In default of the father & mother, the
ascendants nearest in degree shall inherit.
 Should there be more than one of equal degree
belonging to the same line they shall divide the
inheritance per capita;
 Should they be of different lines but of equal
degree, ½ shall go to the paternal and the other half
to the maternal ascendants.
In each line the division shall be made per capita. (937)
SUBSECTION 3. Illegitimate Children
Article 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the
entire estate of the deceased. (939a)
Class Discussion
Q: Who is an illegitimate child?
A: An illegitimate child is one born outside of a valid
marriage.
Q: Does it make a difference if the illegitimate child’s child
is also illegitimate?
A: NO.
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
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the latter by right of representation. (940a)
Right of Descendants to Succeed
Descendants do not only succeed by the right of
representation; they also succeed in their own right in the
proper cases.
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)
Descendants in Art. 990
This refers to both legitimate & illegitimate descendants.
Article 991. If legitimate ascendants are left, the
illegitimate children shall divide the inheritance with them,
taking ½ of the estate, whatever be the number of the
ascendants or of the illegitimate children. (942, 841a)
Article 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children & relatives of his
father or mother; nor shall such children or relatives inherit
in the same manner from the illegitimate child. (943a)
CASE: CORPUS V. ADMINISTRATOR
Facts: Teodoro was an illegitimate child of Luis, based on
the latter’s will. Luis, however, had legitimate children,
including Jose. When Teodoro died, he had no forced heirs.
However, one of his nearest relatives was Juanita, daughter
of his half brother, Jose. Juanita, in turn, had a son, Tomas.
Tomas wanted to claim Juanita’s supposed share in
Teodoro’s estate. Does Tomas have cause of action to
recover his mom’s supposed share?
Held: NO. Since Teodoro was illegitimate & since Juanita
Corpus was the legitimate child of Jose, himself a legitimate
child of Luis, Tomas has no cause of action for the recovery
of the supposed hereditary share of his mother, Juanita, as a
legal heir, in Teodoro's estate. Juanita was not a legal heir of
Teodoro because there is no reciprocal succession between
legitimate and illegitimate relatives. The rule is based on the
theory that the illegitimate child is disgracefully looked upon
by the legitimate family while the legitimate family is, in
turn, hated by the illegitimate child.
The law does not recognize the blood tie and seeks to avoid
further grounds of resentment
CASE: LEONARDO V. CA
Facts: Francisca had three daughters, Maria, Silvestra &
Pascuala. Pascuala predeceased her, but had a son, Sotero,
who in turn had an illegitimate child, Crescencio. When
Francisca died, Crescencio filed a complaint for sum of
money & property, seeking to be declared an heir of
Francisca. Will Crescendo’s complaint prosper?
Held: NO. An illegitimate child who has no right to inherit
ab intestato from the legitimate children and relatives of his
father, like the deceased Francisca.
CASE: DIAZ V. IAC
Facts: Simona is the mother of Pablo, who in turn had
illegitimate children, who are the petitioners in this case.
When Simona died, Pablo was already dead; however,
Simona was survived by a niece, Felisa, as well as Pablo’s
illegitimate children. The trial court declared the latter to be
Simona’s sole heir. The petitioners, however, protest that
they enjoy the right of representation to their father’s share
in Simona’s estate. Was the trial court correct to exclude
Pablo’s children?
Held: YES. 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 under Art. 992. Thus, petitioners
here cannot represent Pablo in the succession of the latter to
the intestate testate of his legitimate mother, Simona.
*Note from MR: While the New Civil Code may have
granted successional rights to illegitimate children (e.g., in
Art. 982), Art. 992 prohibits the right of representation from
being exercised by illegitimate children 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. Thus –
 If the person to be represented is an illegitimate
child, then his descendants, whether legitimate or
illegitimate, may represent him
 BUT if the person to be represented is legitimate, his
illegitimate ascendants cannot represent him because
the law provides that only his legitimate descendants
may exercise the right of representation by reason of
the barrier imposed
This rule applies to both collateral relatives & those in the
descending or ascending lines, excluding the parent & child.
CASE: PASCUAL V. PASCUAL-BAUTISTA
Facts: Olivia & Hermes are acknowledged natural children
of the decedent’s son. They contend that the term
“illegitimate” as provided in Art. 992 must be strictly
construed to refer only to spurious children. Is their
contention valid?
Held: NO. Olivia & Hermes are considered illegitimate
children by law; thus, they cannot represent their father in
the intestate estate of Don Andres. The interpretation of the
law desired by Olivia & Hermes may be more humane but it
is also an elementary rule in statutory construction that when
the words the statute are clear, their meaning must be
determined from the language employed and the statute must
be taken to mean exactly what it says. Clearly, the term
“illegitimate” refers to both natural & spurious. Also under
the Family Code, all illegitimate children are generally
placed under one category.
CASE: MANUEL V. FERRER
Facts: Antonio had legitimate children (Benigno, et al.) and
an illegitimate child (Juan). Juan died intestate and his ward,
Modesta (ampon without benefit of judicial decree of
adoption) executed an Affidavit of Self-Adjudication
claiming for herself 3 parcels of land left in the estate.
Benigno & his siblings (legitimate children) initiated the
suit, seeking the nullity of the instruments by which Modesta
conveyed the properties of Juan. The RTC dismissed the
complaint, holding that Benigno, et al., not being intestate
heirs of Juan, they are not the real parties-in-interest to
institute the suit. Do Benigno, et al. have legal personality to
file suit?
Held: NO. The SC held that Benigno, et al. are not the legal
heirs of Juan. By virtue of Art. 992, the legitimate brothers
& sisters cannot inherit from the illegitimate child. Thus,
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they had no standing to file the suit, which the SC held as
properly dismissed.
CASE: CENTENO V. CENTENO
Facts: Isaac died. He was survived by his spouse Melchora
& their 3 sons, Valentin, Faustino, & Antonio. In his will,
Isaac named his 3 sons as his heirs to 1/2 of his estate, to be
divided equally among them. Antonio died, leaving a
widow, Gabriela. Antonio also executed a will, where he left
his share in the estate of Isaac & his future share in the estate
of Melchora to his 3 natural children (herein defendants).
This will was probated. Melchora died, leaving in her will a
portion of the estate to be divided equally among her sons
(Antonio & Faustino, both deceased, & Valentin). Are the
defendants entitled to a share of Isaac’s & Melchora’s
properties?
Held: They are entitled to Antonio’s share in Isaac’s
property, but not in Melchora’s.
1. Regarding Isaac’s property - the defendants did not inherit
from their natural grandfather Isaac by intestate succession,
but from their natural father Antonio, who acknowledged
them in his will & named them heirs to the property he had
inherited from his deceased father Isaac, who had died
before him. The fact that the inheritance left by Isaac
remained pro indiviso when Antonio Centeno died, did not
prevent him from acquiring during his lifetime, a right to
inherit from his deceased father, since Art. 657 plainly
provides that the rights to succession of any person are
transmitted from the moment of his death.
2. Regarding Melchora’s property - While it is true that
Antonio named the defendants as his heirs not only with
respect to the hereditary portion given him in the will of his
father Isaac (who was already dead at the time) but also with
respect to the hereditary portion of the property left by his
mother Melchora (who was still alive), nevertheless said
testamentary disposition with regard to Melchora's property
is void. Since Antonio predeceased his mom, he had not
acquired any right to her inheritance & therefore could not
dispose of the property. Although Melchora named Antonio
as one of her heirs, since he died before her, the defendants
have no right to represent their deceased father.
A natural child whose deceased father was legitimate has no
right to inherit from his grandmother, even if the latter
should die without any surviving legitimate descendant. This
is a necessary consequence of the pertinent Civil Code
provision, because, as children inherit in their own right and
grandchildren by representation, it is clear that such
representation of the grandchildren only refers to and
includes those who are in the same legal status as the person
represented, & never those who are in a different legal
status.
CASE: VDA. DE CRISOLOGO V. CA
Facts: Julia maintained extramarital relations with
Victoriano & begot him one child named Lutgarda, who died
without any will. The plaintiffs, as relatives within the 5th
civil degree of Lutgarda through Julia, were consequently
instituted as Lutgarda's legal heirs. Was this institution
correct?
Held: NO. The legitimate relatives of Julia cannot inherit
from Lutgarda, an illegitimate child of Julia, because it is the
clear and unmistakable provision of Art. 992. Between
natural children and legitimate relatives of the father/mother
who acknowledge the natural child, the Civil Code denies
any right of succession. They cannot be called relatives and
they have no right to inherit.

CASE: SUNTAY III V. COJUANGCO-SUNTAY
Facts: Cristina died intestate, & she was survived by her
spouse Federico and son Emilio I. Emilio I, who
predeceased Cristina, had legitimate children (Isabel,
Margarita, & Emilio II) & illegitimate children (Emilio III &
Nenita). Despite the illegitimate status of Emilio III, he was
reared ever since he was a baby by Cristina & Federico.
Significantly, after Cristina died, Federico adopted Emilio
III & Nenita. Being an illegitimate child, should Emilio III
be excluded from the administration of Cristina’s estate?
Held: NO. Emilio III should not be excluded from the
administration of the estate. The peculiar circumstances of
this case overthrow the legal presumption in Art. 992 that
there exist animosity & antagonism between legitimate and
illegitimate descendants of a deceased. Art. 992. does not
apply in light of Emilio III being treated by Cristina &
Federico as their own son, reared from infancy, educated and
trained in their businesses, & eventually legally adopted by
Federico.
Class Discussion
Q: Supposing a decedent dies and he is illegitimate, but is
survived by an heir of the full blood who is also illegitimate.
Can that brother inherit?
A: YES, the brother may inherit from the decedent, given
they are both illegitimate.
Q: Suppose that a decedent dies, and he is illegitimate. The
decedent has a half-brother who is also illegitimate. Can they
inherit from one another?
A: They can inherit from one another (but this is not
provided in the law itself; this is just Justice Hofi’s opinion).
Q: Yangco donated a parcel of land to a charity which was
incorporated. The deed of donation provided that the charity
could not transfer the property to another person. At the end
of the corporate life of the charity, the charity incorporated
another corporation and moved the property there. The heirs
of Yangco contested, claiming they were entitled to
reversion of the property, is their contention correct?
A: NO. Yangco was an illegitimate, and, thus, died without
heirs; he only had collateral relatives whom the law did not
contemplate to be “heirs.”
Article 993. If an illegitimate child should die without
issue, either legitimate or illegitimate, his father or mother
shall succeed to his entire estate; & if the child's filiation is
duly proved as to both parents, who are both living, they
shall inherit from him share and share alike. (944a)
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 &
sisters, nephews and nieces, she or he shall inherit of ½ the
estate, & the latter the other half. (945a)
BSNN as Legal Heirs of an Illegitimate Child
When the law speaks of BSNN of illegitimate children, it
refers to both legitimate & illegitimate brothers & sisters, as
well as legitimate & illegitimate nephews & nieces.
SUBSECTION 4. Surviving Spouse
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Article 995. In the absence of legitimate descendants &
ascendants, & illegitimate children & their descendants,
whether legitimate or illegitimate, the surviving spouse
shall inherit the entire estate, without prejudice to the rights
of brothers & sisters, nephews & nieces, should there be
any, under Art. 1001. (946a)
Article 996. If a widow or widower & legitimate children
or descendants are left, the surviving spouse has in the
succession the same share as that of each of the children.
(834a)
If There is Only 1 Legitimate Child
Art. 996 applies even if there is only one legitimate child, in
which case the child & the surviving spouse will divide the
estate equally.
Class Discussion
Q: If a wife survives with 4 children, and the whole estate is
P1M, how will the estate be divided?
A: It would be dividing P1M by 5.
CASE: SANTILLON V. MIRANDA
Facts: The decedent left behind only 1 son & 1 wife. The son
was insisting that he should get a ¾ share of the properties of
the decedent after deducting his mom’s conjugal share, with
his mom getting ¼ of the remaining properties. Is his
contention correct?
Held: NO. The son is entitled to ½ and the mother ½ based
on the rules of intestate succession.
1. The divisions under the chapter on intestate succession
have different rule from those of testate succession in
relation to legitimes (in the latter, governed by Art. 892, the
son would have been entitled to 3/4).
2. The word “children” also encompasses the singular child
when looking at the provisions of the Civil Code. In
intestacy, Art. 996 applies whether or not there is one child
or many children.
Article 997. When the widow or widower survives with
legitimate parents or ascendants, the surviving spouse shall
be entitled to ½ of the estate, & the legitimate parents or
ascendants the other ½. (836a)
Article 998. If a widow or widower survives with
illegitimate children, such widow or widower shall be
entitled to ½ of the inheritance, & the illegitimate children
or their descendants, whether legitimate or illegitimate, to
the other half. (n)
CASE: LANDAYAN V. BACANI
Facts: Teodoro died. His wife, Maxima, & alleged natural,
son, Severino, executed an extrajudicial partition dividing
the decedent’s properties. The Landayan group, however,
legitimate children of Guillerma, the only daughter of the
decedent Teodoro, opposed the extrajudicial partition. They
claimed that Severino was not the illegitimate son of the
decedent, Teodoro, but of Guillerma, their mother. The
Judge dismissed the case. Was the Judge’s action correct?
Held: NO. Aside from the question of prescription, the SC
held that there were still important considerations to make in
this case, particularly as regards the true parentage of
Severino. If the Landayan group’s allegation is true, then
Severino has no right of legal succession from Teodoro, in
view of Art 992. The right of representation is denied by law
to an illegitimate child who is disqualified to inherit ab
intestato from the legitimate children and relatives of his
father. In such a case, the subject Deed of Extrajudicial
Partition insofar as it includes Severino, who is not an heir,
is void as to him. Severino, however, alleges that he is not an
illegitimate child of Guillerma, but rather of Teodoro. In this
case, his right to inherit form Teodoro is recognized by law
(Art. 998). SC thus remanded the case back to the Judge for
trial on the merits.
CASE: ADLAWAN V. ADLAWAN
Facts: Dominador, the decedent, left behind Arnelito, an
illegitimate son, & his wife, Graciana, who died 10 years
after Dominador. Arnelito instituted this ejectment
complaint against Emeterio & Narcisa, siblings of
Dominador, as regards a house & lot which Arnelito claimed
was exclusively his, as he had inherited it from Dominador.
The MTC dismissed the complaint, holding that Dominador
had no personality to file the suit, not being the only owner
of the property, as Graciana was also the owner.
Furthermore, it held that the establishment of Arnelito’s
filiation & the settlement of the estate of Dominador are
conditions precedent to the accrual of Arnelito’s action for
ejectment. Could Arnelito file the ejectment complaint
alone?
Held: NO. Arnelito is not the sole owner of the property, as
claims. Dominador was survived not only by Arnelito by
also by his legal wife Graciana. By intestate succession,
Graciana and Arnelito became co-owners of the lot. The
death of Graciana did not make Arnelito the absolute owner
of the lot because the share of Graciana passed to her
relatives by consanguinity, and not to Arnelito, with whom
she had no blood relations. Pertinently, the SC looked to Art
487 of the Civil Code: “Any one of the co-owners may bring
an action in ejectment.” Tolentino elucidates that a co-owner
may bring such an action, without necessity of joining all
other co-owners as co-plaintiffs, if the suit is instituted for
the benefit of all. BUT If the action is for the benefit of the
plaintiff alone, such that he claims possession for himself
and not for the co-ownership, the action will not prosper. In
the case at bar, Arnelito brought the suit for unlawful
detainer in his name alone and for his own benefit to the
exclusion of the heirs of Graciana.
Article 999. When the widow or widower survives with
legitimate children or their descendants & illegitimate
children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the
same share as that of a legitimate child. (n)
Article 1000. If legitimate ascendants, the surviving
spouse, & illegitimate children are left, the ascendants shall
be entitled to ½ of the inheritance, & the ½ shall be divided
between the surviving spouse & the illegitimate children so
that such widow or widower shall have ¼ of the estate, &
the illegitimate children the other ¼. (841a)
Article 1001. Should brothers & sisters or their children
survive with the widow or widower, the latter shall be
entitled to ½ of the inheritance & the brothers & sisters or
their children to the ½. (953, 837a)
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)
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Class Discussion
Q: 4 illegitimate children, 2 legitimate children, 1 surviving
spouse remain of the decedent’s heirs. How would the
division be between them if the estate is P1M?
A: Divide P1M by 5. The amount will be P200,000.
The LC will get P200,000 each.
The surviving spouse will get P200,000.
The IC will get P100,000 each because there are 4 children.
In this case, the legitime of the LC are impaired, because
they were supposed to get P250,000 each under the laws of
compulsory succession.
The spouse’s legitime was also impaired, as well as the
illegitimate children.
Tolentino states that the LC’s share is preferred. They must
both get their P250,000 each. The share of the spouse is also
preferred so she will get P250,000.
The balance of P250,000 will be divided amongst the 4
illegitimate children.
The legitime are even more important than testamentary
dispositions; thus, the legitime must be granted to the
legitimate child, and then to the spouse, as they are preferred
by the law.
Q: If the surviving spouse concurs with a legitimate
ascendant & a illegitimate child, what is the share?
A: Surviving spouse will get ¼ & the illegitimate child will
be ¼. In this case, no legitimes will be affected, since in the
law on legitimes the parents get ½ of the estate also.
Q: What if the wife is separated from the husband and she is
the sole heir?
A: If she caused the separation, she is not entitled to her
share; but if she is the innocent spouse, she is not barred
from inheriting by intestate succession.
Q: What if the marriage is declared null via Art. 36 of the
Family Code. Will the surviving spouse inherit?
A: She will no longer inherit because there is no marriage.
Thus, there is no surviving spouse.
SUBSECTION 5. Collateral Relatives
Article 1003. If there are no descendants, ascendants,
illegitimate children, or a surviving spouse, the collateral
relatives shall succeed to the entire estate of the deceased in
accordance with the following articles. (946a)
Article 1004. Should the only survivors be brothers &
sisters of the full blood, they shall inherit in equal shares.
(947)
Article 1005. Should brothers & sisters survive together
with nephews & nieces, who are the children of the
descendant's brothers & sisters of the full blood, the former
shall inherit per capita, & the latter per stirpes. (948)
Class Discussion
Q: Why is there a provision where, if the spouse concurs
with the brothers, sisters, nephews & nieces, they will divide
the estate among themselves, but the grandnephews and
grandnieces would be excluded if the spouse survived only
with the latter batch?
A: Because the brothers and sisters are nearest to the
deceased; that is probably why.

Q: If the brothers & sisters are the only survivors, how much
will they inherit?
A: They will inherit the entire estate.
Q: Can the nephews and nieces inherit with the siblings?
A: Only by right of representation & not with the siblings.
Article 1006. Should brothers & sisters of the full- blood
survive together with brothers & sisters of the half- blood,
the former shall be entitled to a share double that of the
latter. (949)
Article 1007. In case brothers & sisters of the half blood,
some on the father's & 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)
Reasoning Behind Art. 1007
Since all the siblings are of the half-blood, the division will
be equal.
Class Discussion
Q: What if the survivors are all half-brothers? One half-
brother is from the father’s side and the other from the
mother’s side. What is the effect?
A: They will inherit equally with no distinction.
Q: What if the half-brother on the father’s side is
illegitimate, & the half-brother on the mother’s side is
legitimate, how will they divide?
A: They will be able to divide the estate equally among
themselves.
Article 1008. Children of brothers & 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)
Article 1009. Should there be neither brothers nor sisters
nor children of brothers or sisters, the other collateral
relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or
preference among them by reason of relationship by the
whole blood. (954a)
Note for Art. 1009
Nephews & nieces exclude uncles & aunts, though all are 3rd
degree relatives.
Article 1010. The right to inherit ab intestato shall not
extend beyond the fifth degree of relationship in the
collateral line. (955a)
SUBSECTION 6. The State
Article 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding Sections,
the State shall inherit the whole estate. (956a)
Article 1012. In order that the State may take possession of
the property mentioned in the preceding article, the
pertinent provisions of the Rules of Court must be
observed. (958a)
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Escheat Proceedings
The State must execute escheat proceedings pursuant to the
Rules of Court in order to acquire the property.
CASE: CITY OF MANILA V. ARCHBISHOP OF MANILA
Facts: Ana Sarmiento executed a will, in which she provided
for the establishment of a Capellania de Misas. The will
contained provisions that the first chaplain of the capellania
should be her nephew Pedro, and that administration thereof
shall continue perpetually. After Ana died, for more than
200 years, the Roman Catholic Archbishop of Manila,
through various agencies, administered the property. The
City of Manila commenced the present suit to have declared
escheated to the city of Manila the property constituting the
capellania (5 parcels of land), on the theory that the owner
Ana Sarmiento died without leaving a person entitled to the
same. Is the Archbishop correct?
Held: NO. Act No 190, Sec. 750 provides when property
may be declared escheated: when a person dies intestate,
with remaining real or personal property, leaving no heir or
person by law entitled to the same. SC held that Ana did not
die intestate; in fact, she left a will which provides for the
administration of her property by her nephew as well as for
the subsequent administration of the same. She did not die
without persons entitled to administer her estate. Insofar as
the record shows, the property is still being administered in
accordance with the terms of Ana’s will for the benefit of the
real beneficiary, as was intended by the original owner Ana.
Thus, the property cannot be declared escheated.
Article 1013. After the payment of debts & charges, the
personal property shall be assigned to the municipality or
city where the deceased last resided in the Philippines, &
the real estate to the municipalities or cities, respectively, in
which the same is situated.
If the deceased never resided in the Philippines, the whole
estate shall be assigned to the respective municipalities or
cities where the same is located.
Such estate shall be for the benefit of public schools, &
public charitable institutions & centers, in such
municipalities or cities. The court shall distribute the estate
as the respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its
own motion, may order the establishment of a permanent
trust, so that only the income from the property shall be
used. (956a)
Article 1014. If a person legally entitled to the estate of the
deceased appears and files a claim thereto with the court
within 5 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)
Class Discussion
Q: The municipal council sold the lot it got by escheat
proceedings, and then used the proceeds to pay for
scholarships to the local school. Is that allowed?
A: Yes. Besides, who can complain?
PARTIAL INTESTACY
Partial Intestacy
  Partial intestacy is not provided for explicitly by the
Civil Code
 This refers to situations where the decedent left a will
disposing of part, but not all, of the disposable
portion
How to Solve Partial Intestacy Situations
1. Trace where the free portion went in total intestacy
2. Since part of that free portion was disposed of by
will, the testamentary provisions should be carried
out, & what is left of the free portion should then be
given to the intended beneficiary in intestacy
Illustrative Example
X died, leaving as his survivors his legitimate parents, A &
B, & his wife Y. X had no kids. X left a will giving 1/8 of
his entire estate to Caritas Manila. His net estate is worth
P600K.
 The will is not inofficious, since it only disposes of
1/8 of the estate, the disposable portion here being ¼.
 The legitimes of the compulsory heirs are:
o A & B – 1/2 of the estate – P300K
o Y – ¼ of the estate – P150K
 In total intestacy, the shares would have been:
o A & B – ½ of the estate – P300K
o Y – ½ of the estate – P300K
 The intended recipient of the undisposed portion is
Y, since she is the one to whom the entire free
portion went in total intestacy (A & B simple got
their legitimes)
 Since part of the free portion was given away by will,
the remainder should be given to Y, the wife.
 THUS –
o Caritas Manila – P75,000 (1/8 by will)
o A & B – P300,000 (1/2) or P150,000 each
o Y – P225,000
Class Discussion [Partial Intestacy]
Q: What if there are 2 legitimate children, 4 illegitimate
children, and a legacy of P2,000?
A: The legitimate children will get ½ of the estate, i.e.,
P250,000 each.
The 4 illegitimate children will get P125,000 each. This will
be P500,000.
There is no more room to pay for the legacy. Since it is
inofficious, the legacy will be reduced.
CHAPTER 4. Provisions Common to Testate & Intestate
Successions
SECTION 1. Right of Accretion
*Article 1015. Accretion is a right by virtue of which, when
2 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
 Died before the testator,
is added or incorporated to that of his co-heirs, co-devisees,
or co-legatees. (n)
When Accretion Operates (RIP)
1. Renunciation
2. Incapacity
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3. Predecease
*Note: These are the same occasions for simple substitution.
Article 1016. In order that the right of accretion may take
place in a testamentary succession, it shall be necessary:
(1) That 2 or more persons be called to the same
inheritance, or to the same portion thereof, pro
indiviso; &
(2) That one of the persons thus called dies before the
testator, or renounces the inheritance, or becomes
incapacitated to receive it. (928a)
Elements of Accretion
1. 2 or more persons are called to the same inheritance,
or to the same portion thereof, pro indiviso
2. Renunciation, predecease, or incapacity of one (or
more but less than all) of the instituted heirs
Pro Indiviso as Contemplated in Accretion: Two Types
 The co-heirs are instituted without individual
designation of shares, OR
o Ex. I institute A & B to ½ of my estate.
 The co-heirs are instituted with the specification that
they share equally (“in equal shares”) or that they
have the same fractional sharing for each (“1/2 for
each”), OR
o Ex. “I institute A, B, & C to ½ of my estate in
equal shares.”
o Ex. “I institute A, B, & C to ½ of my estate,
each of them to take 1/3 of that 1/2.”
 The co-heirs are instituted with fractional shares, but
the sharing between the co-heirs is unequal.
o Reason: Pro indiviso as a term means “in
common” & does not import equality.
Accretion thus occurs even if the sharing is
unequal, as long as it results in co-ownership.
o Ex. “I institute A, B, & C to ½ of my estate.
Of this ½, A gets ½, B gets 1/3 & C gets 1/6.”
CASE: TORRES V. LOPEZ (1926)
Facts: Tomas had been judicially declared incapable of
taking care of himself & was placed under the guardianship
of his cousin Vicente. Tomas executed a will, in which he
declared, “I institute as the only & universal heirs to all my
property my cousin Vicente Lopez & his daughter Luz.”
Four days after the will was made, Vicente died. Later, the
testator Tomas died. At the time of the execution of the will,
Vicente had not presented his final accounts as guardian.
Who is entitled to be Tomas’ universal heir?
Held: Luz is entitled.
1. The SC referred to Art. 753 of the old Civil Code which
declares that no testamentary provision shall be valid when
made by a ward in favor of his guardian before the final
accounts of the latter have been approved. Art. 753 applies
in the case at bar and the provision made in the will in favor
of Vicente was not any general incapacity on his part, but a
special incapacity due to the relation of guardian & ward
existing between the parties.
2. Following the answer to this question, SC considered
which provisions would apply in this case where the ward’s
daughter was named as an heir in the will. Did the disability
of Vicente bring Luz’s case under Art. 912 of the Civil Code
rather than Art. 982 of the old Civil Code (now Art. 1016)?
 If under. Art 912, legal succession takes place if the
heir dies before the testator & also when the heir
 instituted is disqualified to succeed. Under this
theory, Margarita Lopez (a cousin & nearest relative
of the decedent) is entitled to inherit the share of the
disqualified heir, Vicente.
 If under Art. 982, accretion takes place in
testamentary succession, first when 2 or more
persons are called to the same inheritance or the
same portion thereof without special designation of
shares, and secondly, when one of the persons so
called dies before the testator or renounces the
inheritance or is qualified to receive it. Under this
theory, Luz, who was called to the same inheritance
without designation of shares alongside Vicente,
would receive the property.
SC held that as between Arts. 912 & 982, the former is the
more general of the two, dealing as it does with the general
topic of intestate succession while the latter is more specific,
defining the particular conditions under which accretion
takes place. Thus, In case of conflict, Art. 912 must be
considered limited by Art. 982. Indeed, Art, 912(3), the
provision with respect to intestate succession is expressly
subordinated to Art 983 by the expression “and (if) there is
no right of accretion.” Thus, Luz succeeds to the entire
estate.
Article 1017. The words "1/2 for each" or "in equal shares"
or any others which, though designating an aliquot part, do
not identify it by such description as shall make each heir the
exclusive owner of determinate property, shall not exclude
the right of accretion.
In case of money or fungible goods, if the share of each heir
is not earmarked, there shall be a right of accretion. (983a)
Class Discussion
Q: What does the term “earmarked” mean in this provision?
A: Earmarked means that it is clear who the amount or
goods are designated to. It will result in a situation where
there is no co-ownership between 2 or more heirs, because it
is clear which portion belongs to whom.
Q: X, the decedent, provided that A & B would each inherit
½ of P1M. Is this considered a situation where there can be
accretion? Is this considered earmarked?
A:
Q: X says, I leave to A the money in the left drawer of my
desk, & B the money in the right drawer of my desk. Is this
considered earmarked?
A: This is considered earmarked.
Article 1018. In legal succession the share of the person
who repudiates the inheritance shall always accrue to his co-
heirs. (981)
Accretion in Intestate Succession – When it Occurs
1. Repudiation or renunciation
2. Incapacity or unworthiness, only if representation
does not take place
3. Predecease, only if representation does not take place
Accretion vis-à-vis Representation in Intestacy
In intestacy, accretion is subordinate to representation.
Co-Heirs Must be in the Same Category
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The co-heirs in whose favor accretion occurs must be co-
heirs in the same category as the excluded heir.
 Ex. X dies intestate, survived by his wife Y & his
brothers, A, B, & C.
o If C renounces, only A & B will split his
share, not Y.
Article 1019. The heirs to whom the portion goes by the
right of accretion take it in the same proportion that they
inherit. (n)
Article 1020. The heirs to whom the inheritance accrues
shall succeed to all the rights & obligations which the heir
who renounced or could not receive it would have had. (984)
Exceptions to Art. 1020
1. In testamentary succession, if the testator provides
otherwise;
2. If the obligation is purely personal, & hence
intransmissible
Article 1021. Among the compulsory heirs the right of
accretion shall take place only when the free portion is left to
2 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)
Accretion in Compulsory Succession
 Accretion is restricted in its operation within the
confines of the particular kind of succession
involved, whether it is testamentary, intestate or
compulsory.
 In compulsory succession, there is no accretion in the
legitime when there is repudiation; the heirs instead
inherit the excluded heir’s share in their own right.
o This rule does not substantially affect the
operation of the legitime, except in
 The computation of legitime of
illegitimate children
 The computation of legitime of the
surviving spouse when concurring
with legitimate children
Article 1022. In testamentary succession, when the right of
accretion does not take place, the vacant portion of the
instituted heirs, if no substitute has been designated, shall
pass to the legal heirs of the testator, who shall receive it
with the same charges & obligations. (986)
Hierarchy in Situations Where Succession Testamentary in
Nature
1. Substitution takes into account the testator’s will;
thus, it will be prioritized.
2. If there is no substitution, there will be accretion.
3. If there is no accretion, there will instead be intestate
succession.
Article 1023. Accretion shall also take place among
devisees, legatees & usufructuaries under the same
conditions established for heirs. (987a)
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)
General Rule: Capacity to Succeed
The general rule is in favor of capacity to succeed, as long as
the successor has juridical personality.
2nd Par. is Incorrect
Note that some grounds for incapacity to succeed by will
have no application to compulsory or intestate succession.
*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 born later
under the conditions prescribed in Art. 41. (n)
Requisites for Natural Persons to Inherit
Type of Succession Requirement
Default Rule Must be living when
succession opens
If institution is subject to a Must be living –
suspensive condition 1. When succession opens
2. When the condition
happens
If institution is subject to a Must be living when the
suspensive term succession opens
When Succession Opens
Succession opens at the decedent’s death.
Meaning of “Living”
It is enough that the heir, devisee or legatee is already
conceived when the decedent dies, provided that he or she
will be born later, in accordance with Art. 40 & 41. 24
Representation Not an Exception to the Requirement
 In the right of representation, the heir must also
already be at least conceived when the decedent dies.
(Art. 971 & 973)
 Thus, the requirement that the successor should be
alive when the decedent dies is absolute & applies in
both representation & accretion.
Illustrative Example
Q: X has two sons, A & B, & B was disinherited by X. X
died in 1985. In 1988 B begot a child. Can B’s child
represent B?
24
Article 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born
later with the conditions specified in the following article. (29a)
Article 41. For civil purposes, the fetus is considered born if it is alive at the
time it is completely delivered from the mother's womb. However, if the fetus
had an intra-uterine life of less than 7 months, it is not deemed born if it dies
within 24 hours after its complete delivery from the maternal womb. (30a)
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A: NO. B’s child cannot represent B in the succession to X,
because the child was not alive when the decedent died.
Question on Illegitimate Children
Q: X was validly disinherited by his dad, A. A died, leaving
X with an illegitimate son, Y. Can Y represent X?
A: NO. As it is, he cannot.
Q: What is Y is subsequently legitimated?
A: Y can now represent X. This is because legitimation is
retroactive.
CASE: PARISH PRIEST OF CATHOLIC CHURCH OF VICTORIA
V. RIGOR
Facts: Fr. Rigor, the testator, provided in his will that a lot he
owned would be granted to his nearest male relative who
would enter the priesthood. At the time he died, none of his
heirs were in the priesthood. Thus, the testate proceedings
remained pending. 13 years after his death, however, the
parish priest of Victoria filed a petition praying for the
delivery of the lot, for Edgardo, the grandson of Fr. Rigor’s
first cousin, became a seminarian of the Jesuit Fathers in
Q.C. The other heirs prayed that the provision in Fr. Rigor’s
will be declared inoperative for such a proviso could not go
on into perpetuity. Is the contention of the other heirs
correct?
Held: YES. As a general rule, the stipulation should refer to
a relative already living at the time of the death of the
testator. The life of the stipulation cannot go on into
perpetuity, unless the testator explicitly so provides (i.e., that
the property would be bequeathed to the relative who
became a priest even after the decedent’s death). Here, there
was no mention in the will as to the period. The provision
should thus be reasonably construed, in a way that would
remove any uncertainty as to the disposition of the estate.
Class Discussion
Q: Give an example of a suspensive term.
A: X is made an heir provided that he receives it 1 year after
the death of the decedent.
In this situation, if X died after the decedent died, but prior
to the end of the 1 year, his heirs would be able to inherit,
since this is a suspensive term.
Article 1026. A testamentary disposition may be made to the
State, provinces, municipal corporations, private
corporations, organizations, or associations for religious,
scientific, cultural, educational, or charitable purposes.
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, & always subject to the same.
(746a)
Requirement for Juridical Persons to Succeed
1. It must possess juridical personality, as provided in
Art. 44.25
2. It must already exist as a juridical person when the
decedent dies.
25
Article 44. The ff. 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. (35a)
Class Discussion
Q: When is a juridical person considered alive?
A: It is considered alive when the State grants it juridical
personality. For ordinary corporations, this is when they are
registered with the SEC.
Article 1027. The ff. are incapable of succeeding:
(1) The priest who heard the confession of the testator
during his last illness, or the minister of the gospel
who extended spiritual aid to him during the same
period;
(2) The relatives of such priest or minister of the gospel
within the 4th degree, the church, order, chapter,
community, organization, or institution to which such
priest or minister may belong;
(3) A guardian with respect to testamentary dispositions
given by a ward in his favor before the final accounts
of the guardianship have been approved, even if the
testator should die after the approval thereof;
 BUT: 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;
(5) Any physician, surgeon, nurse, health officer or
druggist who took care of the testator during his last
illness;
(6) Individuals, associations, & corporations not
permitted by law to inherit. (745, 752, 753, 754a)
Commentary on Art. 1027, Pars. 1-5
 These are referred to as “relative incapacity,”
because they are based on the relationship. This is
unlike death, for example, which is absolute
 No actual duress or influence need be shown to apply
these provisions; the Code seeks to prevent even just
the possibility
 Pars. 1-5 only apply to testamentary succession
 THUS: A person may be disqualified to succeed by
will under these paragraphs, but be entitled to a
legitime or to an intestate portion
Paragraph (1): Requisites
1. The will must have been executed during the
testator’s last illness;
2. The spiritual ministration must have been extended
during the last illness;
3. The will must have been executed during or after the
spiritual ministration.
Class Discussion
Q: Would violations of paragraph (1) would make the whole
will void or just the designation to the priest?
A: It would just affect the designation to the priest;
otherwise, the will would still be valid.
Paragraph (2)
A spouse of a religious minister would also likely be covered
by this provision.
Class Discussion
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Q: Suppose that the testator made a will donating P5M to the
Society of Jesus when Fr. Bernas ministered his last gospel.
Is the designation of the Society of Jesus valid?
A: NO, this is prohibited under par. (2) of this Art.
Paragraph (3): Requisites
1. The guardian is over persons or property
2. The ward executes the will during the effectivity of
the guardianship, i.e., at anytime between the
commencement of the guardianship & its dissolution
3. The guardian is NOT the –
a. Ascendant;
b. Descendant;
c. Sibling; or
d. Spouse of the ward-testator.
Paragraph (4)
Expands the disqualification in Art. 823 to include not just
legacies & devises, but also, testamentary dispositions made
in the witness’ favor.
 BUT: The Art. 823 exception – i.e., if there are 3
other competent witnesses – should also apply in Par.
4
Class Discussion
Q: Under par. 4, what if the will is attested & there are more
than 3 attesting witnesses?
A: Then the designation would be valid, since the ratio
behind the prohibition is not really affected.
Paragraph (5)
The person must have taken care of the testator during the
latter’s final illness.
 Taking care – medical attendance with some
regularity or continuity.
Class Discussion
Q: Under par. 5, would the caregiver be capacitated to
receive?
A: The Civil Code did not contemplate a caregiver, but the
caregiver would most likely also be considered a nurse.
Article 1028. The prohibitions mentioned in Art. 739,
concerning donations inter vivos shall apply to testamentary
provisions. (n)
Applicability of Art. 1028
Art. 1028 applies only to situations where there is
testamentary succession.
Additionally Disqualified Under Art. 739
(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
CASE: NEPOMUCENO V. CA
Facts: Martin died. In his last will, he bequeathed Sofia as
his heir & executor. Sofia, however, was in an adulterous
affair with him. Martin was actually married to Rufina &
had two kids with her. In the will, Martin made explicit
mention of his wife & kids as well, but prioritized Sofia.
Sofia sought to have the will of Martin admitted into
probate, but this was opposed by Rufina. The probate court,
while ruling that the will was extrinsically valid, also ruled
that the will was intrinsically void, & disallowed the will.
Sofia protested that the probate court should not have ruled
on the intrinsic validity when it was merely tasked with
admitting the will into probate. Was Sofia’s contention
correct?
Held: NO. The court acted within its jurisdiction 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 Sofia void.
Art. 739 of the Civil Code provides: “The ff. donations shall
be void: (1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation.” Also,
Article 1028 of the Code provides: “The prohibitions
mentioned in Art. 739, concerning donations inter vivos shall
apply to testamentary provisions.” From the face of the will,
it was already obvious that it was void, for Martin already
admitted that he was married to Rufina & had kids with her
but bequeathed Sofia with everything.
The general rule is that in probate proceedings, the court’s
area of inquiry is limited to an examination & resolution of
the extrinsic validity of the will. But as an exception, when
there are “practical considerations,” a probate court may
already rule on the intrinsic validity of the will. The probate
of a will might become an idle ceremony if on its face it
appears to be intrinsically void.
The prohibition in Art. 739 is against the making of a
donation between persons who are living in adultery or
concubinage. It is the donation which becomes void. The
giver cannot give even assuming that the recipient may
receive. The very wordings of the Will invalidate the legacy
because the testator admitted he was disposing the properties
to a person with whom he had been living in concubinage.
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 –
 1/2 thereof or its proceeds to the church or
denomination to which the testator may belong, to be
used for such prayers and pious works, &
 1/2 to the State, for the purposes mentioned in Art.
1013. (747a)
Requisites in Art. 1029
1. Disposition for prayers & pious works for the benefit
of the testator’s soul
2. No specification of the application of the disposition
CASE: VILLAVICENCIO V. QUINIO
Facts: Eugenia executed a will, which was probated over the
opposition of some relatives. The will provided that the
fruits of the land and the incomes of the house & warehouse
Eugenia owned would be invested in the Roman Catholic
Apostolic Church of Batangas, by way of daily Masses held
for the decedent for 3 years, as well as for the repose of the
souls of her parents, brothers, & sisters, alms, etc. 29
relatives of the testatrix within the 5th civil degree filed a
Motion to be charged with the duty to comply with the
provisions of the will, alleging that they reached an
agreement with the Bishop of Lipa, wherein they would
deposit with the Bishop the necessary amount to defray the
Masses for 3 years. Quinio, et al., who could have been
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intestate heirs, contended that a substantial balance would
still remain after deducting the necessary expenses for
Masses & alms, in accordance with Eugenia’s wishes. As to
that balance, Quinio, et al. contended that Eugenia died
partly intestate & that they were entitled to succeed her with
respect thereto. Is their contention correct?
Held: NO. Their proposition would be inconsistent with
what Eugenia ordered in her Will. Quinio, et al. proceed on
the false assumption that for every Mass celebrated, some
determinate amount from the fruits of Eugenia’s properties
had to be given. Proceeding on this assumption, it is possible
that the fruits would leave an excess amount which Eugenia
had not disposed of. However, such an assumption is
untenable because Eugenia ordered “that the fruits of the
lands and the income of the house and warehouse, be spent
for Masses…” Hence, Eugenia intended that all fruits of the
lands and all income be spent for the Masses. For the
purpose of the Masses, etc., Eugenie also provided that if
necessary, her properties be sold with leave of court. In view
of these provisions in the will, Eugenia’s collateral relatives,
not being forced heirs, are not entitled to succeed her as to
the remainder of her properties, which does not exist, or as
to the naked ownership thereof.
Article 1030. Testamentary provisions in favor of the poor
in general, without designation of particular persons or of
any community, shall be deemed limited to the poor living in
the domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as
poor & the distribution of the property shall be made by the
person appointed by the testator for the purpose; in default of
such person, by the executor, & should there be no executor,
by the justice of the peace, the mayor, and the municipal
treasurer, who shall decide by a majority of votes all
questions that may arise. In all these cases, the approval of
the CFI shall be necessary.
The preceding paragraph shall apply when the testator has
disposed of his property in favor of the poor of a definite
locality. (749a)
Which Poor Are Referred To
 The poor of a definite locality (par. 3), or
 The poor of no designated locality (par. 1)
Who Determine Individual Beneficiaries Within the Class
Designated by the Testator?
1. The person designated by the testator; in his default,
2. The executor; in his default,
3. The administrator
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)
Who Can Claim Nullity
The intestate heirs, to whom the property would go, have the
right to claim the nullity
Article 1032. The ff. are incapable of succeeding by reason
of unworthiness:
(1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or immoral
life, or attempted against their virtue;
 (2) Any person who has been convicted of an attempt or minister of the gospel
against the life of the testator, his or her spouse, within the 4th degree, the
descendants, or ascendants; church, order, chapter,
(3) Any person who has accused the testator of a crime community, organization, or
for which the law prescribes imprisonment for 6 institution to which such
years or more, if the accusation has been found priest or minister may
groundless; belong;
(4) Any heir of full age who, having knowledge of the (3) A guardian with respect to
violent death of the testator, should fail to report it to testamentary dispositions
an officer of the law within a month, unless the given by a ward in his favor
authorities have already taken action; this prohibition before the final accounts of
shall not apply to cases wherein, according to law, the guardianship have been
there is no obligation to make an accusation; approved, even if the
(5) Any person convicted of adultery or concubinage testator should die after the
with the spouse of the testator; approval thereof;
(6) Any person who by fraud, violence, intimidation, or (4) Any attesting witness to the
undue influence should cause the testator to make a execution of a will, the
will or to change one already made; spouse, parents, or children,
(7) Any person who by the same means prevents another or any one claiming under
from making a will, or from revoking one already such witness, spouse,
made, or who supplants, conceals, or alters the parents, or children;
latter's will; (5) Any physician, surgeon,
(8) Any person who falsifies or forges a supposed will of nurse, health officer or
the decedent. (756, 673, 674a) druggist who took care of
the testator during his last
Application of Art. 1032 illness;
Applies to all kinds of succession (6) Those made between
persons who were guilty of
Grounds Under Par. (1) adultery or concubinage at
1. Abandonment of the child the time of the donation;
2. Inducement of a daughter to lead a corrupt or (7) Those made between
immoral life persons found guilty of the
3. Attempt against a daughter’s virtue same criminal offense, in
consideration thereof;
Pars. (1)-(5) (8) Those made to a public
These are also grounds for disinheritance officer or his wife,
descendants and ascendants,
Par. (4) – Technically Inoperative, because of (5) by reason of his office.
1. The heir has knowledge of the violent death of the All Types of Succession (1) Parents who have
decedent abandoned their children or
2. The heir is of legal age induced their daughters to
3. The heir fails to report it to an officer of the law lead a corrupt or immoral
within a month (after learning of it) life, or attempted against
4. The authorities have yet to take action their virtue;
5. There is a legal obligation to make an accusation – (2) Any person who has been
makes the provision inoperative, because there is no convicted of an attempt
such legal obligation under the law against the life of the
testator, his or her spouse,
Effect of Unworthiness descendants, or ascendants;
 Unworthiness gives rise to total disqualification (3) Any person who has
o The unworthy heir is incapacitated to accused the testator of a
succeed from the offended party by any crime for which the law
form of succession (even legitimes) prescribes imprisonment for
 THUS: Unworthiness and disinheritance have 6 years or more, if the
identical effects accusation has been found
groundless;
Summary of Causes of Incapacity (4) Any heir of full age who,
Type of Succession Causes of Incapacity having knowledge of the
Testamentary Only (1) The priest who heard the violent death of the testator,
confession of the testator should fail to report it to an
during his last illness, or the officer of the law within a
minister of the gospel who month, unless the
extended spiritual aid to authorities have already
him during the same period; taken action; this
(2) The relatives of such priest prohibition shall not apply

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 to cases wherein, according
to law, there is no
obligation to make an
accusation;
(5) Any person convicted of
adultery or concubinage
with the spouse of the
testator;
(6) Any person who by fraud,
violence, intimidation, or
undue influence should
cause the testator to make a
will or to change one
already made;
(7) Any person who by the
same means prevents
another from making a will,
or from revoking one
already made, or who
supplants, conceals, or
alters the latter's will;
(8) Any person who falsifies or
forges a supposed will of
the decedent.
(9) Individuals, associations
and corporations not
permitted by law to inherit.
Article 1033. The cause of unworthiness shall be without
effect if the testator had knowledge thereof at the time he
made the will, or if, having known of them subsequently, he
should condone them in writing. (757a)
Two Ways By Which There is Restoration to Capacity
 A written condonation
 The execution by the offended party of a will with
knowledge of the cause of unworthiness
o For this mode, the will must also either
institute the unworthy heir or restore him to
capacity
Overlap of Rules on Unworthiness & Disinheritance (Art.
1033 & 922)26
A. If offended party does not make a will subsequent to the
occurrence of the common cause
 Unworthiness sets in ipso facto & written
condonation is necessary to restore to capacity
B. If offended party makes a will subsequent to the
occurrence of the common cause, apply this:
1. If He Knew Of the Cause
If he disinherits Art. 922 – Subsequent
reconciliation cures
If he institutes or pardons Offender restored to capacity
the offender
If will is silent Disputed; but for Balane,
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
26
Art. 922. A subsequent reconciliation between the offender & the
offended person deprives the latter of the right to disinherit, & renders
ineffectual any disinheritance that may have been made. (856)
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of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Art. 1032, it shall be
necessary to wait until final judgment is rendered, & in the
case falling under No. 4, the expiration of the month allowed
for the report.
If the institution, devise, or legacy should be conditional, the
time of the compliance with the condition shall also be
considered. (758a)
When Capacity is to be Determined
General Rule Time of the decedent’s death
If subject to a Time of decedent’s death +
suspensive Time of happening of the condition
condition
If final judgment Time of final judgment
is a requisite of
unworthiness Exact situations covered:
1. Person was convicted of an
attempt against the life of the
testator, his or her spouse,
descendants, or ascendants;
2. Person accused the testator of a
crime for which the law
prescribes imprisonment for 6
years or more, if the accusation
has been found groundless;
3. Any person convicted of adultery
or concubinage with the spouse
of the testator (No. 2, 3, 5 of Art.
1032)
If final judgment The expiration of the month allowed
& report is for the report
needed
Situation covered: An 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 (No. 4 of Art. 1032)
Article 1035. If the person excluded from the inheritance by
reason of incapacity should be a child or descendant of the
decedent & should have children or descendants, the latter
shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct &
administration of the property thus inherited by his children.
(761a)
Representation in Unworthiness
Unworthiness is one of 3 instances where representation may
operate. The 3 are: [DUP]
1. Disinheritance
2. Unworthiness
3. Predecease
Extent of Representation
Applies to –
1. The legitime
2. Whatever portion in intestate succession the person
represented may have been entitled to
Representation in the Collateral Line
If the unworthy heir is a brother or sister, his children (i.e.,
nephews & nieces of the decedent) will represent
Those Excluded From Usufruct or Representation
The basis for this is Art. 225-226 of the Family Code
Usufruct The prohibition is now unnecessary,
because FC states – the right of the
parents over the fruits & in the child’s
property is limited primarily to –
1. The child’s support
2. Secondarily, the collective daily
needs of the family
Administration The disqualification remains; the right
shall be exercised either by –
1. A judicially appointed guardian, or
2. Those vested by law with
substitute parental authority (Art.
216, FC)
Article 1036. Alienations of hereditary property, & acts of
administration performed by the excluded heir, before the
judicial order of exclusion, are valid as to the third persons
who acted in good faith; but the co-heirs shall have a right to
recover damages from the disqualified heir. (n)
Good Faith of Transferee as Determinant of Validity
The transferee’s good or bad faith determines the validity of
the transfer, NOT the transferor’s (i.e., the excluded heir)
Requisites for a Transferee to be in Good Faith
1. Acquired the thing for value
 Thus, a donee cannot claim to be a transferee
in good faith
2. Acquired without knowledge of the defect of the
transferor’s title
3. Good faith
Remedy of Rightful Heirs
If there is a valid alienation by a disqualified heir, the heirs
can go after the disqualified heir for damages.
Article 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity or any expenses
incurred in the preservation of the hereditary property, and to
enforce such credits as he may have against the estate. (n)
Right to Reimbursement of the Unworthy Heir
This is not dependent on the unworthy heir’s good or bad
faith because these refer to necessary expenses
 Property law: necessary expenses may be reimbursed
even to a possessor in bad faith
Class Discussion
Q: What are necessary expenses?
A: These are expenses that pertain to the preservation of the
property.
Article 1038. Any person incapable of succession, who,
disregarding the prohibition stated in the preceding articles,
entered into the possession of the hereditary property, shall
be obliged to return it together it its accessions.
He shall be liable for all the fruits & rents he may have
received, or could have received through the exercise of due
diligence. (760a)
Disqualified Heir in Art. 1038 is Possessor in Bad Faith
Because he is a possessor in bad faith, the heir must –
1. Return the property, with accessions
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2. Incur liability for fruits which was received, & could
have been received
Period for Action to Recover
4 years from the time the disqualified person took possession
thereof (Art. 1040)
Q: What is meant by accession?
A: Whatever is attached to the property, whether these
property may be natural, civil or industrial.
Article 1039. Capacity to succeed is governed by the law of
the nation of the decedent. (n)
National Law of Decedent Governs Capacity
It is the national law of the decedent – NOT that of the heir –
that governs capacity to succeed
CASE: CAYETANO V. LEONIDAS
Facts: Adoracion Campos died, leaving her father
Hermogenes as her sole compulsory heir under Philippine
law. Her father thus adjudicated the entire estate to himself.
However, Adoracion disposed of all of her properties via
will, as shown by her sister, leaving none for her father.
Adoracion was at the time of her death an American citizen
& a permanent resident of Philadelphia, USA. The trial court
allowed Adoracion’s will into probate, thus excluding her
father from the inheritance. Her father opposed, claiming
that this would violate his right to his legitime as a
compulsory heir & could not be countenanced. Is his
contention correct?
Held: NO. Under Art. 16(2) of the Civil Code, 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
regulated by the national law of the person whose succession
is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property
may be found. Also, under Art. 1039 of the Civil Code,
capacity to succeed is governed by the law of the nation of
the decedent. Thus, the law which governs Adoracion’s will
is the law of Pennsylvania, USA, which does not provide for
legitimes and that all the estate may be given away by the
testatrix to a complete stranger. Whatever public policy or
good customs may be involved in our system of legitimes,
Congress has not intended to extend the same to succession
of foreign nationals.
Article 1040. The action for a declaration of incapacity and
for the recovery of the inheritance, devise or legacy shall be
brought within 5 years from the time the disqualified person
took possession thereof. It may be brought by any one who
may have an interest in the succession. (762a)
Prescriptive Period under Art. 1040
5-year prescriptive period applies both to the:
1. Declaration of incapacity of the heir
2. Recover of the inheritance or portion thereof
wrongfully possessed by the disqualified heir
Counted from the time the disqualified person takes
possession thereof
SECTION 3. Acceptance and Repudiation of the
Inheritance
 belong to the persons designated by the testator to
Article 1041. The acceptance or repudiation of the determine the beneficiaries & distribute the property, or in
inheritance is an act which is purely voluntary & free. (988) their default, to those mentioned in Art. 1030. (992a)

Acceptance of Inheritance as a Free Act Requirement for Personal Acceptance or Renunciation

The acceptance of inheritance, in any form of succession, is Capacity to act is required for personal acceptance or
like the acceptance of a donation – free & voluntary. renunciation.

Rules More Liberal for Acceptance Acceptance & Repudiation in Art. 1044
The rules for acceptance are more liberal than those for Heirs Acceptance Repudiation
repudiation, because acceptance is beneficial to the Minors or By their parents or By parents, but
successor. incapacitated guardians only with court
persons approval
Article 1042. The effects of the acceptance or repudiation Poor people By the persons By persons
shall always retroact to the moment of the death of the (via designated by the selected as
decedent. (989) testamentary testator to determine qualified
dispositions) the beneficiaries & recipients
Retroactivity to the Moment of Decedent’s Death distribute the property
Of acceptance Heir will be deemed to have owned &
possessed the property from the precise In default, those
moment of the decedent’s death. designated in Art.
1030 (i.e., executor,
This affects: acquisitive prescription, mayor, municipal
capacity to succeed, representation, etc. treasurer, or justice of
Of renunciation Renouncer is deemed never to have the peace with
owned or possessed the property. approval of court

Thus: The substitute, co-heir, or *NOTE: The above

intestate heir who inherits in default of persons may only
the renouncer is deemed the owner & accept grants, & NOT
possessor from the moment of the reject them
decedent’s death.
Conditional Retroactive effect still applies. Article 1045. The lawful representatives of corporations,
Institutions*  Upon the happening of the associations, institutions, & entities qualified to acquire
condition, the property passes to property may accept any inheritance left to the latter, but in
the heir but with retroactive effect. order to repudiate it, the approval of the court shall be
 If the condition does not happen, necessary. (993a)
*NOTE: Art.
the property goes to the
880 must be Article 1046. Public official establishments can neither
appropriate successor, with the
followed; the
same retroactive effect accept nor repudiate an inheritance without the approval of
property should the government. (994)
be placed under
administration
Article 1047. A married woman of age may repudiate an
during the
inheritance without the consent of her husband. (995a)
interim.
Article 1048. Deaf-mutes who can read & write may
Article 1043. No person may accept or repudiate an
accept or repudiate the inheritance personally or through an
inheritance unless he is certain –
agent.
1. Of the death of the person from whom he is to
Should they not be able to read & write, the inheritance
inherit, &
shall be accepted by their guardians. These guardians may
2. Of his right to the inheritance. (991)
repudiate the same with judicial approval. (996a)
Class Discussion
Deaf-Mutes (Art. 1327)
Q: What if everyone thought the testator died, but it turns out
he is alive afterwards?  Deaf-mutes who can read & write have contractual
A: The heir will not be considered to have inherited their capacity
property.  Illiterate deaf-mutes are considered by law as
incompetent
Article 1044. Any person having the free disposal of his
property may accept or repudiate an inheritance. Summary of Persons Who May Accept & Repudiate
Any inheritance left to minors or incapacitated persons may Heirs Acceptance Repudiation
be accepted by their parents or guardians. Parents or Default Rule Heir himself will accept if he has
guardians may repudiate the inheritance left to their wards capacity to act
only by judicial authorization. Deaf-mutes who
Deaf-mute himself
The right to accept an inheritance left to the poor shall can read & write

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Minors or other By their parents It is inferred from acts revealing intent to accept, i.e., acts of
incapacitated or guardians ownership performed by the heir over the property.
persons
Deaf-mutes who By their Only with court Illustrative Enumeration Only
don’t read & guardians This list is illustrative, not exclusive.
approval
write
Corporations, Lawful Onerous Transfer in Favor of Co-Heirs/Stranger (Par. 1)
associations, representatives of Onerous or gratuitous conveyance in favor of one, some, or
institutions, said juridical all of his co-heirs, or to a stranger
entities entity  This is an act of ownership, which necessarily
Public official With government approval implies that the heir accepted the inheritance.
establishments
Gratuitous Renunciation in Favor of Co-Heir/s (Par. 2)
The poor (via GR: By persons By persons
 Gratuitous renunciation in favor of one or some of
testamentary designated by the selected as
his co-heirs
dispositions) decedent to qualified
o This is not really a renunciation, but a
decide who will beneficiaries (i.e.,
be the the poor) conveyance in favor of the co-heirs specified.
beneficiaries o It partakes of the nature of donation & must
follow forms for donations.
In default: Art. Onerous Renunciation (Par. 3)
1030 persons Onerous renunciation in favor of all the co-heirs
(executor, mayor, indiscriminately is NOT in fact a renunciation but a sale of
treasurer, justice his portion & thus, constitutes a tacit acceptance.
of the peace with
court approval) Gratuitous Renunciation in Favor of All Co-Heirs
If it is in proportions It is still a conveyance &
Article 1049. Acceptance may be express or tacit. different from those in must be treated as a tacit
 An express acceptance must be made in a public or which they would receive acceptance
private document. by accretion
 A tacit acceptance is one resulting from acts by
which the intention to accept is necessarily implied, If the transfer by gratuitous This is a true renunciation
renunciation is to the co- and cannot be treated as a
or which one would have no right to do except in the
capacity of an heir. heirs indiscriminately, same tacit acceptance.
as what the co-heirs would
Acts of mere preservation or provisional administration do
not imply an acceptance of the inheritance if, through such have received by virtue of
accretion.
acts, the title or capacity of an heir has not been assumed. *NOTE: The same rule
(999a) applies even if the part
renounced in this manner is
Kinds of Acceptance the legitime,
(1) Express notwithstanding that there is
a. Public document no accretion in the legitime,
b. Private writing as long as the renunciation
(2) Tacit – deemed accepted due to acts of ownership is indiscriminate.
performed by successor
(3) Implied – failure to accept or repudiate within 30 Article 1051. The repudiation of an inheritance shall be
days after court issues an order for the distribution of made [either] –
the estate (1) In a public or authentic instrument, or
(2) By petition presented to the court having
Article 1050. An inheritance is deemed accepted: jurisdiction over the testamentary or intestate
(1) If the heirs sells, donates, or assigns his right to a proceedings. (1008)
stranger, or to his co-heirs, or to any of them;
(2) If the heir renounces the same, even though Form of Renunciation
gratuitously, for the benefit of one or more of his co- (1) Public or authentic instrument
heirs; (2) Petition filed in the settlement proceedings
(3) If he renounces it for a price in favor of all his co-
heirs indiscriminately; Form of Renunciation Stricter
 BUT if this renunciation should be gratuitous,
& 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)

Tacit Acceptance

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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 petition the
court to authorize them to accept it in the name of the heir.
The acceptance shall benefit the creditors only to an extent
sufficient to cover the amount of their credits. The excess,
should there be any, shall in no case pertain to the
renouncer, but shall be adjudicated to the persons to whom,
in accordance with the rules established in this Code, it may
belong. (1001)
Art. 1052 is Accion Pauliana
Accion pauliana – the right given to creditors to impugn or
set aside contracts, or dispositions of their debtors which will
prejudice or defraud them.27
Extent of Right of Creditor to Inheritance
 Right of the creditor to accept the inheritance in
debtor’s name extends only to the amount necessary
to satisfy the credit
 Any amount in excess of that may be validly
renounced by the debtor-heir
CASE: AVELINO V. CA
Facts: Avelino, Sr. died & was survived by his spouse
Angelina, daughter Ma. Socorro (petitioner), & other
compulsory heirs (respondents). Ma. Socorro filed a Petition
for the Issuance of Letters of Administration, asking to be
appointed the administrator of the estate. Angelina & the
others filed an Opposition by filing a Motion to Convert the
Judicial Proceedings to an Action for Judicial Partition. The
lower court granted this & ordered the parties to submit a
complete inventory of all the real and personal properties left
by the decedent. Was the lower court correct?
Held: YES. In this case, the decedent left no debts and the
heirs and legatees are all of age. Thus, Rule 74, Sec. 1 of the
Rules of Court should apply – 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.
Thus, the RTC did not err in converting Ma. Socorro’s
Petition for Issuance of Letters of Administration into an
action for judicial partition.
Article 1053. If the heir should die without having
accepted or repudiated the inheritance his right shall be
transmitted to his heirs. (1006)
Basis of Above Provision
 This rule is a consequence of the principle that the
right of succession vests at the moment of death (Art.
777).
 The right of the heir who dies before accepting or
renouncing is already vested & transmitted to the
heir’s heirs.
27
Art. 1177. The creditors, after having pursued the property in possession of
the debtor to satisfy their claims, may exercise all the rights & 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.
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Right to Inheritance is Also Inherited
THUS: 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 inheritance. 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 others may
repudiate it. (1007a)
Right to Accept or Repudiate is Proportionate
If there are several heirs, their right to accept or repudiate
corresponds to the aliquot share to which they are entitled.
Illustrative Scenario
If X dies & Y, his heir, himself dies before accepting or
renouncing the inheritance, leaving A, B, & C as his own
heirs — A, B, & C each has the right to accept or renounce
his corresponding 1/3 interest in whatever Y was entitled to
inherit from X.
Article 1055. If a person who is called to the same
inheritance as an heir, by will & ab intestato, repudiates the
inheritance in his capacity as a testamentary heir, he is
understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without
knowledge of his being a testamentary heir, he may still
accept it in the latter capacity. (1009)
Scenario Contemplated by this Provision
A person is both a (1) testamentary heir (or legatee or
devisee) & (2) an intestate heir, with respect to the same
inheritance.
1. If he renounces as testamentary heir (or legateeor
devisee) — he is deemed to have renounced
EVERYTHING, including being an intestate heir as
well.
2. If he renounces as intestate heir without knowledge of
his being a testamentary heir (or legatee or devisee)
— he is NOT deemed to have renounced as
testamentary heir & may therefore accept or
renounce separately in the latter capacity.
Rational Behind the Rule
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.
What If Scenario – Intestacy & Testacy
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.
 Wording of par. 2 - he cannot accept as testamentary
heir.
 Rationale of the rule - it seems he can; this is what
Balane thinks, too
Non-Applicability of Art. 1055 to Legitime
If an heir is BOTH a compulsory heir & a testamentary heir,
he can accept either or both.
 The legitime passes by strict operation of law,
irrespective of the decedent’s wishes.
 The term ab intestato in this Art. refers solely to
intestate succession.
  For compulsory heirs, look to Art. 955, par. 228
Class Discussion
Q: What happens if an heir who is both a testamentary heir
& intestate heir. What about the intestate?
A: There is a presumption that when the heir accepts the
testamentary, then he also accepts the intestate.
Q: What if the intestate heir knew he was also a testamentary
heir, but the intestate heir accepted only the intestate portion
of the inheritance, OR he repudiates the intestate portion,
knowing he is also a testamentary heir. Is he still free to
accept or reject the testamentary portion?
A: The intestate heir may appear as if he had no more
choice; BUT Professor Balane believes that the intestate heir
would still be free to accept or repudiate the testamentary
portion, as the testamentary portion pertains to the will of the
testator.
Article 1056. The acceptance or repudiation of an
inheritance, once made, is irrevocable & cannot be
impugned, EXCEPT
 When it was made through any of the causes that
vitiate consent, or
 When an unknown will appears. (997)
Rule in Art. 1056
GR: Acceptance or repudiation is irrevocable.
EXC: Such is still revocable if –
(1) It was made through causes which vitiate consent
(VIFUM)
a. Violence
b. Intimidation
c. Fraud
d. Undue influence
e. Mistake
(2) An unknown will appears
 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 (if valid & admitted to probate)
reopens the whole affair & will call for a new
acceptance or renunciation.
Article 1057. Within 30 days after the court has issued an
order for the distribution of the estate in accordance with
the Rules of Court, the heirs, devisees & legatees shall
signify to the court having jurisdiction whether they accept
or repudiate the inheritance.
If they do not do so within that time, they are deemed to
have accepted the inheritance. (n)
Implied Acceptance
This Art. pertains to implied acceptance, i.e., failure to
signify acceptance or renunciation within the 30-day period
specified by this article.
Class Discussion
Q: What does the 30-day period pertain to?
A: It pertains to testamentary succession.
Q: Is there a period for accepting an intestate share?
28
Art. 955, par. 2. 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)
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A: The law does not provide a period.
SECTION 4. Executors and Administrators
*Justice Hofileña said he would not discuss these parts.
Article 1058. All matters relating to the appointment,
powers and duties of executors and administrators and
concerning the administration of estates of deceased
persons shall be governed by the Rules of Court. (n)
Article 1059. If the assets of the estate of a decedent which
can be applied to the payment of debts are not sufficient for
that purpose, the provisions of Arts. 2239 to 2251 on
Preference of Credits shall be observed, provided that the
expenses referred to in Art. 2244, No. 8, shall be those
involved in the administration of the decedent's estate. (n)
Article 1060. A corporation or association authorized to
conduct the business of a trust company in the Philippines
may be appointed as an executor, administrator, guardian of
an estate, or trustee, in like manner as an individual; but it
shall not be appointed guardian of the person of a ward. (n)
SECTION 5. Collation
Three Meanings of Collation in this Section
1. Collation as computation
 Simple math
 Where the value of all donations inter vivos
made by the decedent is added to his
available assets to arrive at the value of the
net hereditary estate
 Discussed in Art. 90829
2. Collation as imputation
 Donations inter vivos are correspondingly
charged either –
o To the donee’s legitime, or
o Against the disposable portion30
3. Collation as return
 Takes place when a donation inter vivos is
found to be inofficous (i.e., exceeds the
disposable portion)
 So much of its value as is inofficious is
returned to the decedent’s estate to satisfy the
legitimes31
*NOTE: The meaning of collation in this Section swings
from one to another; that is why it is important to define
collation in this manner.
29
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)
30
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 disposed of, they shall be
reduced in the manner prescribed by this Code. (847a)
31
Also referenced in Art. 909 & 910.

Class Discussion
Q: What is the purpose of collation?
A: It is so that the legitimes of the compulsory heirs may be
properly computed.
Q: What does it mean to say that the donation inter vivos is
imputed to an heir’s legitime?
A: It means that the donation previously received will be
deducted from the heir’s legitime. Thus, if during his
lifetime the testator donates to an heir P100,000, if the heir’s
share of the testator’s estate at the time of death is P400,000,
then the heir will only get P300,000, subtracting the
P100,000 the heir received during the testator’s lifetime.
Q: Why do you also have to impute the donation of the
testator to a stranger to the free portion?
A: This is because the legitime must still be unimpaired; if
the donation impairs the legitime, it will be an inofficious
donation. The collation thus determines if the donation is
inofficious or not.
Q: What happens if the donation inter vivos to a stranger is
found to be inofficious?
A: The donation is subject to reduction.
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 received
from the decedent, during the lifetime of the latter, by way
of donation, or any other gratuitous title, in order that it
may be computed in the determination of the legitime of
each heir, & in the account of the partition. (1035a)
Meaning of Art. 1061
This refers to the computation of all donations inter vivos
made by the decedent
 Determines the net value of the estate
 Purely computational
What is Included in the Computation
 ALL donations inter vivos are included, whether to
compulsory heirs or strangers, are added to the net
hereditary estate
o NOT JUST what is to be given to compulsory
heirs
CASE: ZARAGOZA V. CA
Facts: Flavio (decedent) was survived by his 4 children. His
daughter Alberta filed a complaint for the delivery of her
share in the decedent’s estate, according to a partition made
by Flavio which distributed his properties among 3 out of the
4 children excepting Alberta through Deeds of Sale. Her
brother Florentino, along with his wife, was impleaded.
Florentino filed a Motion to Dismiss on the ground that the
complaint failed to implead indispensable parties (i.e., Gloria
& Zacariaz, their other siblings). Will the Motion prosper?
Held: YES. Collation cannot be done in this case, where the
conjugal petition for delivery of one heir’s share in the
inheritance only impleaded one of the other compulsory
heirs. The petition must be dismissed without prejudice to
the institution of a new proceeding where all the
indispensable parties are present for the rightful
determination of their respective legitime. If the legitimes
were prejudiced by the partitioning inter vivos.
Article 1062. Collation shall not take place among
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compulsory heirs –
 If the donor should have so expressly provided, or
 If the donee should repudiate the inheritance
UNLESS the donation should be reduced as inofficious.
(1036)
Rules on Imputation of Donations Inter Vivos to Compulsory
Heirs
GR Should be imputed to the heir’s legitime (i.e.,
considered as an advance to the legitime)
EX 1. If the donor provides otherwise
C 2. If the donee renounces the inheritance; because
he would be giving up his status as a
compulsory heir & thus will not be considered
as one
*If these exceptions apply, the donation will be
imputed to the free portion
Balane’s Querendums
Q: What happens if the compulsory heir received a donation
inter vivos from the decedent but the value of the donation
exceeds the legitime?
A: The donation will be imputed to the donee’s legitime to
the extent of the legitime’s value & the excess, to the free
portion.
Donations Inter Vivos to Strangers
This will be imputed to the free portion.
Instances When Donations Inter Vivos are to be Imputed to
the Free Portion
1. When made to strangers
2. When made to compulsory heirs, & the donor so
provides
3. When made to compulsory heirs who renounce their
inheritance
4. When, in excess of compulsory heir’s legitime, as to
the excess
Class Discussion
Q: What happens when the heir repudiates or the testator
expressly provides that there will be no collation, as stated in
Art. 1062?
A: The donation will be attributed to the free portion instead
of the legitime; thus, the donation may still be reduced if
found to be inofficious.
Article 1063. Property left by will is NOT deemed subject
to collation, if the testator has not otherwise provide, but
the legitime shall in any case remain unimpaired. (1037)
Collation as Imputation
This case refers to collation as imputation, because it
distinguishes between what will pertain to the legitime &
what to the free portion.
Rule on Testamentary Dispositions to Compulsory Heirs
GR: The legitime should not be imputed to the legitime, but
to the free portion
 Thus, the GR is that the compulsory heir gets the
legitime + the testamentary disposition
EXC: If the testator provides otherwise
 The testamentary disposition made in favor of the
heir will be merged with his legitime

Class Discussion
Q: What does it mean when Art. 1063 says it will “not be
subject to collation”?
A: It will still be counted with the free portion, rather than
the legitime.
CASE: DIZON-RIVERA V. RIVERA
Facts: The decedent in this case executed a will where she
explicitly divided & bequeathed her properties to her
compulsory heirs, delineating the partitions herself. Is there
need for collation in this case?
Held: NO. Collation would not apply in this case. The
decedent already took care of the distribution & partition of
the entire estate in her will, without her having made any
previous donations during her lifetime which would require
collation to determine the legitime of each heir nor having
left merely some properties by will which would call for the
application of Arts. 1061-1063 Civil Code on collation.
Article 1064. When the grandchildren, who survive with
their uncles, aunts, or cousins, inherit from their
grandparents in representation of their father or mother,
they shall bring to collation all that their parents, if alive,
would have been obliged to bring, even though such
grandchildren have not inherited the property.
They shall also bring to collation all that they may have
received from the decedent during his lifetime, unless the
testator has provided otherwise, in which case his wishes
must be respected, if the legitime of the co-heirs is not
prejudiced. (1038)
Collation as Imputation
This case refers to collation as imputation, because it
distinguishes between what will pertain to the legitime &
what to the free portion.
Situations Covered by Art. 1064
Grandchildren who are inheriting –
 By representation concurrently with children (uncles
& aunts of the grandchildren) who are inheriting in
their own right, or
 With other grandchildren (cousins of the
grandchildren).
What the Grandchildren have to Collate (i.e., impute to their
legitime)
 Whatever the parent whom they are representing
would have been obliged to collate; &
 Whatever they themselves have received from the
grandparent by gratuitous title (subject to the same
rules & exceptions in Art. 1062)32
Question & Answer
Q: Let’s say a father inherited from the grandfather a car.
The father has died. But before he died he sold the property.
When the grandfather dies must the value of the car still be
collated by the heirs?
A: Yes, the heirs would have to collate.
Class Discussion
32
Art. 1062. Collation shall not take place among compulsory heirs if the
donor should have so expressly provided, or if the donee should repudiate the
inheritance, unless the donation should be reduced as inofficious. (1036)
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Q: If X dies & he has, as his heirs, a son & daughter and the
children of a predeceased son. May the children of the
predeceased son inherit?
A: The children of the predeceased son may inherit by right
of representation, representing their father, X’s predeceased
son.
However, the children will also be obliged to collate the
donations which their parents received & the donations they
themselves received from X.
Q: Why would the children of the predeceased son of X be
required to collate the gifts they themselves personally
received to X?
A: Because the gifts are still subject to imputation; the
children of the predeceased son of X are to receive from X’s
estate, & must thus also collate.
Article 1065. Parents are not obliged to bring to collation
in the inheritance of their ascendants any property which
may have been donated by the latter [i.e., the ascendant] to
their children [i.e., grandchildren]. (1039)
Collation as Imputation
This case refers to collation as imputation, because it
distinguishes between what will pertain to the legitime &
what to the free portion.
Against What Part of the Estate Imputable
The donation to the grandchild should be imputed to the free
portion; it is considered 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 ½ of the thing donated. (1040)
Collation as Imputation
This case refers to collation as imputation, because it
distinguishes between what will pertain to the legitime &
what to the free portion.
Donations to Son-in-Law or Daughter-in-Law
 Considered as donations made to a stranger
 These are considered separate properties of the
donee, & should thus not be imputed to the legitime
of the donor’s child (i.e., the donee’s spouse)
o UNLESS the donor provides for a different
designation
Donations Made to Spouses Jointly
 If the donation is made to the spouses jointly –
o ½ belongs to the donor’s child & is treated in
accordance with Art. 1062 (i.e., imputed to
the compulsory heir’s legitime) &
o ½ is the property of the donor’s son- or
daughter-in-law & should be treated as a
donation to a stranger.
 BUT: The presumption of equality of aliquot shares
will yield to a different designation by the donor.
Consistency with Family Code
 For absolute community regime
o Art. 92 – exclusions from community
property include gifts property acquired by a
 spouse during the marriage by gratuitous title,
including its fruits & income
 UNLESS it is expressly provided by
the donor, testator, or grantor that they
shall form part of the community
property.
 For conjugal partnership regime
o Art. 109 – exclusive property of each spouse
includes that which is acquired by gratuitous
title
o Art. 113 – Property donated or left by will to
the spouses, jointly & with designation of
determinate shares, shall pertain to the donee-
spouse as his or her own exclusive property,
& in the absence of designation, share and
share alike, without prejudice to the right of
accretion when proper.
Class Discussion
Q: What happens to the share imputed to the compulsory
heir’s wife?
A: It would go into the computation of the free portion,
instead of the legitime of the compulsory heir.
Q: What if the donation is made by the decedent to both of
them?
A: Then ½ will be included in the computation of the
legitime, while the other is included in the free portion.
Article 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts are not subject to
collation. (1041)
Collation as Computation
The expenses mentioned in this Art. are not included in the
computation of the decedent’s estate.
 This is a qualification of or an exception to the rule
in Art. 1061 (i.e., general rule on collation of
compulsory heirs)
Support in this Article
It does not fully follow the definition in Art. 194 of the
Family Code;33 HOWEVER, the definition is not the same,
because Art. 1067 does NOT include professional,
vocational or other career expenses, because that is dealt
with under Art. 1068.
Class Discussion
Q: What happens to the amounts spent in Art. 1067 for the
child’s support? Will it be imputed in the legitime or the free
portion?
A: NO, the amounts will not be included in the computation
of either the legitime or the free portion.
Article 1068. Expenses incurred by the parents in giving
their children a professional, vocational or other career
shall not be brought to collation unless
33
Art. 194: Support comprises everything indispensable for dwelling,
clothing, medical attendance, education, & 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
profession, trade or vocation, even beyond the age of majority. Transportation
shall include expenses going to & from school, or to & from work.
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 The parents so provide, or
 They impair the legitime;
BUT when their collation is required, the sum which the
child would have spent if he had lived in the house &
company of his parents shall be deducted therefrom.
(1042a)
Collation as Imputation
This case refers to collation as imputation, because it
distinguishes between what will pertain to the legitime &
what to the free portion.
Rules in Art. 1068
 Expenses incurred by the parents for the child’s
professional, vocational or other career (i.e., courses
beyond secondary level) are NOT collated & imputed
to said child’s legitime, if they are not inofficious
o UNLESS the parents provide otherwise
 These expenses should be computed for the
determination of the value of the decedent’s estate
Effect of Contrary Provision by Parents
Under Art. 1068, the child is entitled to deduct from the said
amount the sum corresponding to what his parents would
have spent on him had he stayed at home & loafed.
Class Discussion
Q: What happens to the amounts spent in Art. 1068 for the
child’s support? Will it be imputed in the legitime or the free
portion?
A: They will be imputed in the free portion, not the legitime,
but the amount will be included when computing the value
of the decedent’s estate.
Q: What is considered as secondary?
A: All the way up to high school.
Q: What if you pass the bar exam & your father gives you
law books; is this collatable?
A: In terms of computation, it is collatable; but in terms of
imputation, it may only be added to the free portion, and not
to the legitime.
CASE: ADAN V. CASILI
Facts: Felix Adan received from his mother (decedent)
during her lifetime various sums aggregating P3,000 for his
expenses while studying surveying in Manila. The other
heirs claimed that ½ of the sums (i.e., P1,500) should be
brought into collation, as it encroached upon their legitime.
Is their contention correct?
Held: YES. The career of surveyor is a professional one.
Since the expenses incurred by Felix’s mother in giving him
that career encroached upon the legitime, it is proper to
collate ½ of the amount spent by her for him during the 2
years he studied surveying, the other ½ being considered as
the amount which Felix would have spent if he had lived in
the house & company of his mother.
Article 1069. Any sums paid by a parent –
 In satisfaction of the debts of his children,
 Election expenses,
 Fines, &
 Similar expenses
shall be brought to collation. (1043a)
Collation as Imputation
This case refers to collation as imputation, because it
distinguishes between what will pertain to the legitime &
what to the free portion.
Ratio Behind Art. 1069
The items in the Art. are donations by the parent to the child;
they are thus treated like other donations to compulsory heirs
under Art. 1062.
Q: X runs for the office of barangay chairman. Y, his father,
contributes P1,000 to X for the electoral campaign. Is this
considered collatable?
A: Yes, this is collatable & will be imputed to Y’s legitime.
Q: What if the son of X, Y, goes to the casino & loses
P1,000 & weeps. X then gives him P1M. Is this considered a
donation?
A: Yes, falling under the “similar expenses.”
Article 1070. Wedding gifts by parents & ascendants
consisting of jewelry, clothing, & outfit, shall not be reduced
as inofficious except insofar as they may exceed 1/10 of the
sum which is disposable by will. (1044)
Scope & Operation of Art. 1070
 Covered: Wedding gifts consisting of –
o Jewelry
o Clothing
o Wedding outfit
 Other properties, real or personal, are governed by
Art. 1062 (i.e., generally subject to collation)
Literal Construction of Art. 1070
 The value of the wedding gifts CANNOT go beyond
1/10 of the free portion of the donor’s estate
 Any excess will be considered inofficious & will b
returned as if it were an inofficious donation
 As to the allowable 1/10, that will be imputable to
the free portion
Manresa’s Construction of Art. 1070
 The gift will be imputed to the free portion to the
extent of the 1/10 of the free portion
 Beyond the value, the excess will be imputable to the
recipient’s legitime
Balane’s Take on Art. 1070
 They should have just put this under the general rule
in Art. 1062
 Let’s just bury this provision alive. Fo srs.
Article 1071. The same things donated are not to be brought
to collation & 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 & even their total
loss or destruction, be it accidental or culpable, shall be for
the benefit or account & risk of the donee. (1045a)
Type of Collation
Art. 1071 pertains to collation as both computation &
imputation.
What Value is to be Computed & Imputed
1. Only the value of the thing donated at the time the
donation was made should be considered in the
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computation of the donor’s estate. (Art. 90834
provides the same)
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.
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.
 This it the principle of res perit domino.
 The value of the property after the date of the giving
is not subject to collation.
Article 1072. In the collation of a donation made by both
parents, ½ shall be brought to the inheritance of the father, &
the ½, to that of the mother. That given by one alone shall be
brought to collation in his or her inheritance. (1046a)
Type of Collation
Art. 1072 pertains to collation as both computation &
imputation.
Joint Donations
 The first sentence of this Art. presupposes either a
regime of absolute community or of conjugal
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.
Donations by One Parent Alone
Donation will be of separately-owned property & 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;
& his co-heirs shall receive an equivalent, as much as
possible, in property of the same nature, class, & quality.
(1047)
Type of Collation
Art. 1072 pertains to collation as imputation.
Requirement of Art. 1073
 Art. 1073 requires not only equivalence in amount,
but, as far as possible, also in the kind of property
received.
 BUT: This yields to a different agreement among the
heirs.
Article 1074. Should the provisions of the preceding article
be impracticable –
 If the property donated was immovable, the co-heirs
shall be entitled to receive its equivalent in cash or
securities, at the rate of quotation; & should there be
[no] cash or marketable securities in the estate, so
much of the other property as may be necessary shall
34
Art. 908. To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts & 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)
 be sold at public auction. the full extent of the
 If the property donated was movable, the co-heirs expenses incurred
shall only have a right to select an equivalent of other Useful expenses Reimbursement must be to
personal property of the inheritance at its just price. the full extent, provided that
(1048) the improvement is still in
existence
Contrary Agreements Ornamental expenses No reimbursement
This Art. yields to a contrary agreement among the heirs. demandable, but right of
removal granted if no injury
Article 1075. The fruits & interest of the property subject to to the estate will be caused
collation shall not pertain to the estate except from the day
on which the succession is opened. If Thing is Only Partially Inofficious (Partial Return)
For the purpose of ascertaining their amount, the fruits & Necessary expenses The reimbursement is also
interest of the property of the estate of the same kind & partial, in proportion to the
Useful expenses
quality as that subject to collation shall be made the standard value to be returned
of assessment. (1049) Ornamental expenses No reimbursement
demandable, but right of
Type of Collation removal granted if no injury
Art. 1075 pertains to collation in terms of return. to the estate will be caused
 UNLESS the property is
Rationale physically divided & the
If any donation turns out to be inofficious, then the ornament happens to be
obligation to return it to the estate arises as of the time the located in the portion
succession vests (i.e., the time of the decedent’s death), assigned to the donee, in
because it is from that time that the compulsory heir’s right which case he will have
to the inheritance becomes absolute. From that time, the all the rights of ownership
compulsory heir is entitled to the fruits.
Confusion in Terminology
Extent of Right to Fruits  The situation treated in this article is really a case of
If the donation is totally The entirety of the fruits & reduction of inofficious donations (NOT strictly
inofficious interests shall pertain to the collation)
compulsory heir  The rules set forth in this article really belong in the
If the donation is partially The right to the fruits & provisions on inofficious donations in Arts. 909, 910,
inofficious interests shall be prorated & 91136
between the compulsory heir
& the donee, in proportion Article 1077. Should any question arise among the co-heirs
to their respective interests upon the obligation to bring to collation or as to the things
over the property. which are subject to collation, the distribution of the estate
shall not be interrupted for this reason, provided adequate
Article 1076. The co-heirs are bound to reimburse to the security is given. (1050)
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. thereof. (453a) [Useful expenses – increases the value of the property; is
The donee who collates in kind an immovable which has beneficial for everyone]
ART. 548. Expenses for pure luxury or mere pleasure shall not be refunded to
been given to him must be reimbursed by his co-heirs for the the possessor in good faith; but he may remove the ornaments with which he
improvements which have increased the value of the has embellished the principal thing if it suffers no injury thereby, and if his
property, & which exist at the time the partition if effected. successor in the possession does not prefer to refund the amount expended.
(454) [Ornamental expenses – for luxury]
As to works made on the estate for the mere pleasure of the 36
donee, no reimbursement is due him for them; he has, Art. 909. Donations given to children shall be charged to their legitime.
however, the right to remove them, if he can do so without Donations made to strangers shall be charged to that part of the estate of
which the testator could have disposed by his last will.
injuring the estate. (n) 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)
Type of Collation Art. 910. Donations which an illegitimate child may have received during the
lifetime of his father or mother, shall be charged to his legitime.
Art. 1076 pertains to collation in terms of return. Should they exceed the portion that can be freely disposed of, they shall be
reduced in the manner prescribed by this Code. (847a)
If Thing Has to be Returned in its Entirety (Total Return) Art. 911. After the legitime has been determined in accordance with the three
Necessary expenses35 Reimbursement must be to preceding articles, the reduction shall be made as
(1) Donations shall be respected as long as the legitime can be covered,
reducing or annulling, if necessary, the devises or legacies made in the will;
35 (2) The reduction of the devises or legacies shall be pro rata, without any
ART. 546, par. 1. Necessary expenses shall be refunded to every distinction whatever. If the testator has directed that a certain devise or legacy
possessor; but only the possessor in good faith may retain the thing until he be paid in preference to others, it shall not suffer any reduction until the latter
has been reimbursed therefor. [Necessary expenses – necessary for have been applied in full to the payment of the legitime.
reservation] (3) If the devise or legacy consists of a usufruct or life annuity, whose value
ART. 546, par. 2. Useful expenses shall be refunded only to the possessor in may be considered greater than that of the disposable portion, the compulsory
good faith with the same right of retention, the person who has defeated him heirs may choose between complying with the testamentary provision and
in the possession having the option of refunding the amount of the expenses or delivering to the devisee or legatee the part of the inheritance of which the
of paying the increase in value which the thing may have acquired by reason testator could freely dispose. (820a)
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Partial Division & Distribution
 The division & distribution of the estate can be made
partially, should there be dispute as to the inclusion
of certain 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 the Estate
SUBSECTION 1. Partition
GENERAL DISCUSSION
Partition & Succession
 Successional rights vest upon the successors
(H/L/D)37 upon the decedent’s death
o What the successors acquire vested rights over
is the net estate, which consists of –
 What remains after all debts are paid
 The value of all donations inter vivos
 BUT: If the decedent’s gross assets exceed his
liabilities, or if there are inofficious donations to be
returned, his net passes to his successors at the
precise moment of his death
Immediate Effect of Decedent’s Death
 The estate consists of a mass of properties, usually of
various items.
 THUS: The immediate effect of the decedent’s death
— as far as succession is concerned — is a co-
ownership of the heirs over the entire mass.
 The Lee/Dees will also acquire a right to the specific
items given to them, assuming the legacies & devises
are not inofficious
Sequence of Events: Partition
1. Upon decedent’s death — co-ownership of heirs over
net hereditary or partible estate
2. Subsequent partition, either through –
a. By extrajudicial agreement among the heirs
(Rule 74, Sec. 1, RRC), or
b. Through judicial order in appropriate
settlement proceedings (Rule 90, RRC)
 Partition involves substantive & procedural law
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)
Article 1079. Partition, in general, is the separation,
division, & assignment of a thing held in common among
those to whom it may belong. The thing itself may be
divided, or its value. (n)
Effect of Partition
Partition ends the co-ownership among the co-heirs as
regards the thing partitioned.
Kinds of Partition
1. Actual – physical division of the thing among co-
heirs
37
Heirs, legatees, devisees
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2. Constructive – any act, other than physical division,
which terminates the co-ownership (such as sale to a
third person
*Article 1080. Should a person make partition of his estate
by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime of
the compulsory heirs.
A parent who, in the interest of his or her family, desires to
keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him
in this Art., by ordering that the legitime of the other
children to whom the property is not assigned, be paid in
cash. (1056a)
Partition by the Causante (Decedent)
The decedent himself can effect the partition of his estate
Characteristics of Partition by the Causante
1. It takes effect only upon death
 This is because succession as a mode of
transfer is necessarily mortis causa
2. It is revocable as long as the causante is alive; hence,
the causante can change, modify, rescind it during his
lifetime
Legitime Cannot be Impaired
In no case may the legitime of compulsory heirs be impaired
by partition.
How Causante May Make the Partition
1. By will
2. By act inter vivos
 Oral Partitions
o Some authorities believe that a
partition inter vivos should be in
writing & in a public instrument to be
valid (Fajardo v. Fajardo, 1930)
o BUT there is also authority to state
that oral partitions are valid (Chavez
v. IAC, 1990)
o Oral partition as between heirs is valid
as long as no creditors are affected
(Heirs of P. Ureta v. Heirs of L. Ureta,
2011)
 In a partition inter vivos, must there be a prior
will?
CASE: CHAVEZ V. IAC
Facts: Manuela had 6 children. During Manuela’s lifetime,
her daughter Concepcion had already acquired the undivided
shares of her siblings Presentacion, Florsepina, & Raquel to
property they would eventually have inherited via Deeds of
Sale, becoming the owner of a total of 4/6 of the land, with
her brothers as owners of the remaining 2/6 shares. Despite
the transfers or assignments her children had executed with
her conformity, 10 years later, Manuela signed a Deed of
Sale of the entire property in favor of her daughter Raquel &
her husband Gerardo.
Held: The SC held that Deeds of Sale (among the siblings)
were evidence of a valid partition of the land to which
Manuela gave her authority. They are not contracts entered
into with respect to a future inheritance but a contract
perfected and consummated during the lifetime of Manuela
& are thus a partition inter vivos which is valid. Under Art.
1080, when a person makes a partition by will, it is
imperative that such partition be executed in accordance
with the provisions of the law on will. However, when a
person makes the partition of his estate by an act inter vivos,
such partition may even be oral or written & need not be in
the form of a will, provided the partition does not prejudice
the legitime of compulsory heirs. An oral partition may be
sustained on the ground that the parties have acquiesced in &
ratified the partition by taking possession in severalty,
exercising acts of ownership with respect thereto, or
otherwise recognizing the existence of the partition. It would
be unjust & inequitable to allow Manuela to revoke the sales
she herself authorized only to execute a simulated sale in
favor of her daughter Raquel who already profited from the
sale.
CASE: LEGASTO V. VERSOZA
Facts: Sabina executed a will devising certain parcels of land
to her 4 nieces, giving parcels of land to each. After, she
partitioned the property among her sisters & nieces. The
assignee-nieces already took over possession of their
designated parcels. When Sabina died, however, her will
was not admitted into probate for it lacked some essential
requisites for validity. Did Sabina validly make a partition of
her property among her nieces?
Held: NO. A distinction must be made between the
disposition of property & its partition.
When it comes to the disposition of the property of the
decedent, the decedent designates who will be considered his
H/L/Ds. Said act must necessarily appear in a will, for it
must comply with the appropriate formalities.
When it comes to the partition or division of the properties
in conformity with that disposition, the testator may make
this division in the same will or in another will, or by an act
inter vivos. In making the partition, the formal solemnities
needed in testamentary wills are not necessary. Neither is it
necessary to observe the special formalities required 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.
Thus, 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. Without a will, there can be
no testator; when the law, therefore, speaks of the partition
inter vivos made by the testator of his property, it necessarily
refers to that property which he has already devised, via will,
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 “testator,” 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.
In this case, Sabina’s will was disallowed for not having all
essential requisites. Thus, the partition made by the same
testatrix, in accordance with her will, is invalid.
Legasto Era under the Old Civil Code
 A partition inter vivos is valid only if there is a
supporting will on which the partition is based
 The partition inter vivos is void even if a subsequent
will is executed in conformity
Changes in the New Civil Code
The old Civil Code used to say “testator,” but the new Civil
Code now states “person.”
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 Because this, under the PRESENT provision, a
partition inter vivos can be validly made even
without a supporting will, provided it is not used to
make mortis causa dispositions
 BUT: The ONLY type of partition without a will that
can still be valid is one which follows strictly the
intestate portions provided by law
o THUS: 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 succession
Class Discussion
Q: Supposing the testator left 2 documents, one in the form
of a will and the other not in the form of a will. In the
document in the form of the will he designated his heirs, but
the document not in the form of the will stated that there will
be a partition in accordance with the will that is in proper
form. Is this valid?
A: The partitioning would be valid because it relies on the
valid formal will.
Q: Can the decedent make a valid act inter vivos without a
will?
A: Yes, if it conforms with the rules on intestate succession.
Limitation on Partition by Causante
The legitimes of the causante’s compulsory heirs cannot be
impaired by partition made by him, whether in a will or by
an act inter vivos.
Partition to Keep an Enterprise Intact (Par. 2)
 Only a parent has this privilege
 Privilege can only be exercised if there is enough
cash or property available to satisfy the legitimes of
the other children, since legitimes cannot be impaired
CASE: JLT AGRO, INC. V. BALANSAG
Facts: Don Julian Teves had 2 marriages, first with Antonia
(with whom he had 2 children) & after her death with
Milagros (with whom he had 4 children). The present
controversy involves a parcel of land which was originally
registered in the name of the conjugal partnership of Don
Julian & Antonia. When Antonia died, the land was included
in an Action for Partition & Damages, after which the parties
entered into a Compromise Agreement which embodied the
partition of all the properties of Don Julian. The CFI
declared a tract of land (Hacienda Medalla Milagrosa) as
property owned in common by Don Julian and the 2 children
from his 1st marriage.
Don Julian & his children from the 1 st marriage executed a
Deed of Assignment of Assets with Assumption of
Liabilities in favor of J.L.T. Agro, Inc. Afterwards, Don
Julian died intestate. J.L.T. Agro sought registration of the
property in its name, and it appeared that a court ordered a
TCT to be issued in its name.
Meanwhile, the 2nd wife, Milagros & her children, had taken
possession over the subject lot pursuant to the Compromise
Agreement. Subsequently, they executed a Deed of
Extrajudicial Partition. Unaware that the subject lot was
already registered in JLT Agro’s name, Antonio Ba& Hilaria
purchased the lot from Milagros. It was only at the Register
of Deeds that Balansag & Cadayday discovered that the lot
was already titled in JLT Agro’s name. Was the partitioning
of Don Julian’s property during his lifetime valid?
Held: YES. The general rule is that all things, even future
ones, which are not outside the commerce of man, may be
the object of a contract. The exception is that no contract
may be entered into with respect to future inheritance.
However, an exception to this exception is partition inter
vivos under Art. 1080. Such partition is neither a donation
nor a testament, but an instrument of a special character, sui
generis, which is revocable at any time by the causante
during his lifetime & does not operate as a conveyance of
title until his death.
The partition is undoubtedly valid; however, considering that
it would become legally operative only upon the death of
Don Julian, the right of his heirs from the 2 nd marriage to the
properties adjudicated to him under the Compromise
Agreement was but a mere expectancy. It was a bare hope of
succession to the property of their father. Thus, at the time of
execution of the Deed of Assignment (in favor of JLT Agro),
Don Julian remained the owner of the property, and thus it
was he who retained the absolute right to dispose of it during
his lifetime. His right cannot be challenged by Milagros (2 nd
wife) & her children on the ground that it had already been
adjudicated to them by virtue of the Compromise
Agreement.
CASE: CASILANG V. CASILANG-DIZON
Facts: Liborio & Francisco had 8 kids, including Jose &
Ireneo. Ireneo’s kid, Rosario, filed an action for unlawful
detainer against her uncle, Jose, over a piece of property.
The tax declaration of the property was under her father’s
name. However, Jose claimed he acquired the property via
intestate succession from his parents. The trial court ruled in
favor of Rosario. Afterwards, however, the children of the
other kids filed an action for annulment of the documents,
etc. which showed Rosario as owner. They alleged that all 8
kids of Liborio & Francisco had already entered into an oral
partitioning of the property in question, & Jose was precisely
living on said property during the oral partition, & that for
years, all kids respected this oral partition. Rosario claims
that, at most, this agreement was valid but unenforceable.
Was the oral partition valid?
Held: YES. The parties’ verbal partition is valid & has been
ratified by their taking possession of their respective shares.
The Statute of Frauds has no operation in oral agreements
for the partition of property owned in common, for partition
is not a conveyance of property but simply a segregation and
designation of the part of the property which belong to the
co-owners. A parol partition may be sustained:
 On the ground of estoppel of the parties
 On the ground that the parties have acquiesced in and
ratified the partition by taking possession in
severalty, exercising acts of ownership with respect
thereto, or otherwise recognizing the existence of the
partition (partial performance)
In the case at bar, Jose’s possession of the lot under claim of
ownership is well-borne out of the records & consistent with
the claimed verbal partition with his siblings & fully
corroborated by his sisters.
A possessor of real estate property is presumed to have title
thereto unless the adverse claimant establishes a better right.
Actual possession under a claim of ownership raises a
disputable presumption of ownership. Thus, actual
possession and exercise of dominion over definite portions
of the property in accordance with an alleged partition are
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considered strong proof of an oral partition which the Court
will not hesitate to uphold.
CASE: ALEJANDRA ARADO HEIRS V. ALCORAN
Facts: Raymundo & Joaquina had 1 child, Nicolas. Nicolas,
on the other hand, though married to Florencia (with whom
he had no children), had 1 illegitimate child, Anacleto, from
an extramarital affair. After Nicole, Raymundo & Joaquina
died, Anacleto took over their properties. The heirs of
Florencia (petitioners) filed suit against Anacleto, claiming
that the latter had no right to inherit from his grandparents,
Raymundo & Joaquina. Anacleto, however, said that he was
named as an heir by Joaquina in the latter’s will. Can
Anacleto inherit from his grandparents? And if so, do the
petitioners in this case have a right to seek reconvenyance of
the property to them?
Held: NO to both.
1. Anacleto was barred by law from inheriting from the
estate of Joaquina. To start with, Anacleto could not inherit
from Joaquina by right of representation of Nicolas, the
legitimate son of Joaquina. An illegitimate child has no right
to inherit ab intestato from the legitimate children &
relatives of his parents. The right of representation is not
available to illegitimate descendants of legitimate children in
the inheritance of a legitimate grandparent. Also, Anacleto
could not inherit from the estate of Joaquina by virtue of the
latter's last will, as no will shall pass either real or personal
property unless the same is proved and allowed in
accordance with the Rules of Court. And 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." It appears that such will remained
ineffective considering that the records are silent as to
whether it had ever been presented for probate, and had been
allowed by a court of competent jurisdiction. In the absence
of proof showing that the supposed will of Joaquina had
been duly approved by the competent court, it cannot be
considered as proved. Hence, Joaquina cannot have
bequeathed her properties to Anacleto by will. As the
petitioners were among the collateral relatives of Joaquina,
they are the ones entitled to inherit from her estate.
2. Nonetheless, the petitioners' appeal still fails because the
parties did not establish that the estates of Raymundo,
Nicolas and Joaquina had been respectively settled with
finality through the appropriate testate or intestate
proceedings, and partitioned in due course. Unless there was
a proper and valid partition of the assets of the respective
estates of Raymundo, Nicolas and Joaquina, whether
extrajudicially or judicially, their heirs could not adjudicate
unto themselves and claim specific portions of their estates.
Unless a project of partition is effected, each heir cannot
claim ownership over a definite portion of the inheritance.
Without partition, either by agreement between the parties or
by judicial proceeding, a co-heir cannot dispose of a specific
portion of the estate. For where there are two or more heirs,
the whole estate of the decedent is, before its partition,
owned in common by such heirs. Upon the death of a
person, each of his heirs becomes the undivided owner of the
whole estate left with respect to the part or portion which
might be adjudicated to him, a community of ownership
being thus formed among the co-owners of the estate or co-
heirs while it remains undivided.
Without the showing that the respective estates of
Raymundo, Nicolas and Joaquina had been previously
partitioned, none of the parties herein can lay claim over any
of the disputed specific properties. The petitioners cannot
contend, therefore, that they were the rightful owners of the
properties of the late Joaquina to the exclusion of Anacleto.
Article 1081. A person may, by an act inter vivos or mortis
causa, in trust the mere power to make the partition after his
death to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or
a person subject to guardianship; but the mandatory, 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 Co-Heir
This is for the sake of fairness & impartiality.
Class Discussion
Q: If among the heirs, there is a minor, can there be an
extrajudicial partition?
A: As a general rule, NO, unless the minor is represented by
a guardian. But in Art. 1080 & 1081, even if there is no
guardian for the minor, the partition would be allowed.
Article 1082. Every act which is intended to put an end to
indivision among co-heirs & 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
Art. 1082 pertains to situations where there is actual
partition.
CASE: TUASON & TUASON, JR. V. GREGORIO ARANETA, INC.
Facts: Angela, Nieves & Antonio were co-owners of a parcel
of land. The 3 of them agreed to sell their 1/3 shares to
Gregorio Araneta, Inc. (GAI), after subdividing the property
into small lots. This was embodied in a written
memorandum. Before, during, & after this transaction was
perfected, Angela was being represented by Antonio
Araneta; the latter was also a member of the Board of GAI.
Later, however, Angela wanted the contract rescinded, &
revoked the power of attorney she granted to Antonio. She
asked instead that the property in common be partitioned.
For this, she filed a complaint asking the court to order a
partition of the property & that she be given 1/3 of the same.
She anchored her case on Art. 400, which provides that no
co-owner is obliged to remain a party to the community &
each may, at any time, demand the partition. Will her
petition prosper?
Held: NO. The contract, 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 the
dissolution of the co-ownership & of the community by
selling the parcel held in common & dividing the proceeds
of the sale among the co-owners. The obligation imposed in
the contract to preserve the co-ownership until all the lots
shall have been sold, is a mere incident to the main object of
dissolving the co-ownership. By virtue of their agreement,
the parties thereto practically entered into a contract of
partnership as the most expedient means of eventually
dissolving the co-ownership, the life of said partnership to
end when the object of its creation shall have been attained.
Class Notes: In this case, it was essentially held that there
was constructive partition, which is why the limitations on
the prohibition on partition would not apply.
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CASE: ALEJANDRINO V. CA
Facts: The late Sps. Alejandrino left their 6 children
(Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia,
Abundio) a 219-sq. m. lot, with each child supposedly
receiving 36.5 sq. m. However, the estate of the Sps.
Alejandrino was not settled in accordance with the procedure
outlined in the Rules of Court. Mauricia, one of the children,
allegedly purchased some of Gregorio’s & Abundio’s share
as well as the whole of Ciriaco’s share. However, a 3 rd party,
Licerio Nique, allegedly purchased specific portions of the
property from the children through Laurencia. Was the sale
to Licerio of specific property validly made?
Held: NO. The sale of specific portions of property were not
validly made; however, the acts of the heirs in this case in
attempting to alienate their properties can be deemed a
partition as contemplated by Art. 1082.
1. SC held that a co-owner has the right to alienate his pro-
indiviso share in the co-owned property even without the
consent of the other owners; nevertheless, as a mere part
owner, he cannot alienate the shares of the other co-owners.
2. Art 1082 provides that every act which is intended to put
an end to indivision among co-heirs … is deemed to be a
partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction. IN the
case at bar, Laurencia expressed her intention to terminate
the co-ownership by selling her share to Nique. Further, the
execution of the Deed of Extrajudicial Settlement of the
Estate reflected the intention of both Mauricia & Laurence to
physically divide the property. Both of them had acquired
the shares of their brothers and therefore it was only the 2 of
them that needed to settle the estate. Thus, the RTC did not
abuse its discretion in issuing the Order for the Segregation
of the Property because in so doing, it merely reiterated the
partition by Mauricia & Laurencia embodied in the Deed of
Extrajudicial Settlement.
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 20 years as provided in Art. 494.
This power of the testator to prohibit division applies to the
legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one
of the co-heirs. (1051a)
Partition
GR: Any co-heir may demand partition at any time as a
matter of right.
EXC: Partition may not be demanded when –
(1) The testator forbids it, but only for a period not
exceeding 20 years
 This may cover even the legitimes
 EXC: Despite the imposed indivision,
partition may be demanded when –
o Any of the causes for the dissolution
of a partnership38 occurs
38
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;
 o
The court finds compelling reasons
for partition
(2) When the co-heirs agree on indivision
(3) When the law prohibits partition
 Art. 159, Family Code – Art. The family
home shall continue despite the death of one
or both spouses or of the unmarried head of
the family for a period of 10 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 regardless of whoever
owns the property or constituted the family
home.
CASE: SANTIAGO V. SANTIAGO
Facts: Basilio contracted 3 marriages: the first to Bibiana,
the second to Irene, & the third to Cecilia. Basilio and his
first wife bore two offsprings, Irene & Marta, the mother of
herein oppositors. Basilio & his second wife had 6
offsprings, including respondents Zoilo & Felicidad, &
petitioner Ma. Pilar, all surnamed Santiago. Basilio & his
third wife bore three children, Eugenia herein petitioner
Clemente, and Cleotilde, all surnamed Santiago.
One of the provision of the will state that “e) Ang lupat
bahay sa Lunsod ng Maynila na nasasaysay sa itaas na 2(c)
ay ililipat at ilalagay sa pangalan nila Ma. Pilar at Clemente
hindi bilang pamana ko sa kanila kundi upang pamahalaan at
pangalagaan lamang nila at nang ang sinoman sa aking mga
anak sampu ng apo at kaapuapuhan ko sa habang panahon ay
may tutuluyan kung magnanais na mag-aral sa Maynila o
kalapit na mga lunsod x x x.”
After the executrix-petitioner Ma. Pilar filed a Final
Accounting, Partition and Distribution in Accordance with
the Will, the probate court approved the will by Order of
August 14, 1978 and directed the registers of deeds of
Bulacan and Manila to register the certificates of title
indicated therein. The oppositors-heirs of the first marriage
thereupon filed a complaint for completion of legitime
against the heirs of the second and third marriages. The latter
opposed, claiming that the decree of distribution of Basilio’s
estate should be undisturbed. Is this contention correct?
Held: NO. It is clear from Basilio’s will that he intended the
house and lot in Manila to be transferred in petitioners’
names for administration purposes only, & that the property
be owned by the heirs in common. But the condition set by
(b) By the express will of any partner, who must act in good faith, when
no definite term or particular 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
accordance 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 partnership
to be carried on or for the members to carry 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 decree of court under the following article. (1700a and 1701a)
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the decedent on the property’s indivisibility is subject to a
statutory limitation. On this point, the Court agrees with the
ruling of the appellate court: “ For this Court to sustain
without qualification petitioners’ contention is to go against
the provisions of law, particularly Articles 494, 870, & 1083
of the Civil Code, which provide that the prohibition to
divide a property in a co-ownership can only last for 20
years. Although the Civil Code is silent as to the effect of the
indivision of a property for more than 20 years, it would be
contrary to public policy to sanction co-ownership beyond
the period expressly mandated by the Civil Code
CASE: INANG V. VEGA
Facts: Leon Roldan died without issue & was survived by
his siblings Romana & Gregoria. Romana was survived by
her daughter Anunciacion Vega & grandson Leonardo.
Leonardo, acting on the claim that Romana’s ½ share in
Leon’s estate belonged to him as Romana’s surviving heir,
filed an Action for Partition, alleging that he made demands
therefor which demands were refused by Gregoria’s heirs,
who traced their ownership to a disposition made by Leon
(decedent) to Enriquez who sold it to Lucimo Sr. The
complaint (of Leonardo for partition) was dismissed on the
ground that the right of action had prescribed. Has the action
prescribed?
Held: NO. Since Leon (decedent) died without issues, his
heirs were his siblings Romana and Gregoria and their heirs
became co-owners of the property. Each co-owner may
demand at any time the partition of the thing owned in
common insofar as his share is concerned. No prescription
shall run in favor of one of the co-heirs against the others so
long as he expressly or impliedly recognizes the co-
ownership. For prescription to set in, repudiation must be
done by a co-owner.
Lucimo Sr.’s acts of challenging Leonardo’s ownership (by
executing an Affidavit of Ownership of Land, obtaining a
new tax declaration exclusively in his name, withholding
Leonardo’s share in the fruits of the property) in 1979/1980
– were erroneously appreciated by the lower courts. The SC
said that while it may be argued that these acts were of
repudiation by Lucimo Sr., the fact remains that he is not a
co-owner of the property. He is not even an heir of Gregoria;
he is merely a relative by affinity, being married to
Antipolo’s daughter Teodora. Not being a co-owner,
consequently Lucimo Sr. cannot validly effect a repudiation
of the co-ownership, of which he was never a part. For this
reason, prescription did not run adversely against Leonardo
and his right to seek a partition of the property has not been
lost.
Article 1084. Voluntary heirs upon whom some condition
has been imposed cannot demand a partition until the
condition has been fulfilled
 BUT the other co-heirs may demand it by giving
sufficient security for the rights which the former
may have in case the condition should be complied
with, & until it is known that the condition has not
been fulfilled or can never be complied with, the
partition shall be understood to be provisional.
(1054a)
When Art. 1084 Applies
In institutions with a suspensive condition
Rationale Behind Art. 1084
 1. The heir instituted under a suspensive condition
acquires no rights unless & until the condition
happens
2. The other heirs not so instituted, however, should not
be deprived of their right to demand partition as long
as they protect the inchoate right of the conditional
heir
Class Discussion
Q: Can this Art. apply to compulsory heirs?
A: NO. This can only apply to voluntary heirs where there is
a suspensive condition.
Article 1085. In the partition of the estate, equality shall be
observed as far as possible, dividing the property into lots, or
assigning to each of the co-heirs things of the same nature,
quality & kind. (1061)
Equality Among Co-Heirs
1. Quantitative – the shares of the co-heirs are not
necessarily equal in value, but are determined by law
& by will
2. Qualitative – whatever aliquot portions be, however,
the law mandates equality in nature, kind, & quality
a. Ex. If A gets a parcel of Riceland, B should
also be given one.
*NOTE: The law considers both qualitative & quantitative
equality as ideal.
Exceptions to Qualitative Equality
1. If the causante has made the partition himself
2. If the co-heirs otherwise agree
3. If qualitative equality is impossible or impracticable
Class Discussion
Q: There is a property that is 100 hectares. Can this property
just be divided equally among the heirs?
A: YES, that is possible.
Q: But that would be numerical equality. What about
qualitative equality?
A: Qualitative equality must also be observed as much as
possible; so this should also be considered.
Q: Supposing the estate consists of 4 houses. Can they just
decide to divide one house per heir?
A: NO, it must be determined that the houses are of equal
value,
Q: What about if each of the 4 house have only a P10
difference between one another. Is it valid to give each heir
one?
A: YES, the difference is quite minor.
Article 1086. Should a thing be indivisible, or would be
much impaired by its being divided, it may be adjudicated to
one of the heirs,
 PROVIDED he shall pay the others the excess in
cash.
Nevertheless, if any of the heirs should demand that the
thing be sold at public auction & that strangers be allowed to
bid, this must be done. (1062)
Art. 1086 as Another Instance of Constructive Partition
 Happens When: Thing is essentially indivisible or
physical partition would so diminish its value
 Result: The thing may be sold & the proceeds
divided among the heirs.
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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
interested
 If more than 1 heir is interested, they may buy
it jointly & have the proceeds distributed
among the others to the extent of their
respective shares
o Co-ownership will continue as to the
buyers
Article 1087. In the partition the co-heirs shall reimburse
one another –
 For the income & fruits which each one of them may
have received from any property of the estate,
 For any useful & necessary expenses made upon
such property, &
 For any damage thereto through malice or neglect.
(1063)
Mutual Accounting
Upon partition, the co-heirs must render a mutual accounting
of benefits received & useful & necessary expenses incurred.
 Any heir who, between the decedent’s death &
partition, receives fruits from the estate has to
reimburse his co-heirs their respective shares, in
proportion to the hereditary shares of each
 Any heir who incurs necessary & useful expenses
within that period may also seek reimbursement from
his co-heirs
Article 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of the co-
heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale,
 PROVIDED: they do so within the period of 1 month
from the time they were notified in writing of the sale
by the vendor. (1067a)
Right of Heir to Convey His Share Before Partition
Since successional rights vest upon the decedent’s death, any
heir may, after that time dispose of his aliquot share,
gratuitously or onerously
Right of Redemption in Case of Sale
If a co-heir sells his share prior to partition, any co-heir may
redeem the portion sold, but –
1. Sale must be to a stranger (i.e., not a co-heir)
2. The right is exercised before partition, not after
3. The demand to redeem must be made within 1 month
from written notice of the sale
 The requirement of a written notice is strictly
construed by the courts
*NOTE: Co-heirs or co-owners are not granted redemption
rights when the alienation is gratuitous.
CASE: GARCIA V. CALALIMAN
Facts: Gelacio died intestate. Group 1, 2 & 3 inherited a
parcel of land from Gelacio. Group 1 & 2 executed deeds of
sale wherein they conveyed the property to the Spouses
Calaliman. However, they never sent notice of this sale to
Group 3. Group 3 filed a complaint to have ¾ of the property
redeemed by them, 1 year after the contested property was
sold to the Spouses Calaliman. It was shown that the Group
3 heirs never received notice of the sale to the spouses;
however, months before the suit was filed –
 Francisco, from Group 3 wrote the heirs in the other
groups, proposing to buy their interests in the
unpartitioned property
 Group 3 came to know about the sale to the Spouses
Calaliman when one of the heirs from Group 2 asked
Group 3 heirs to sign a document as regards the
property
 Francisco had also gone to the Registry of Deeds &
had seen the deed of sale
Despite technical knowledge of the sale, & the passage of 1
year, should Group 3 be allowed to redeem the property?
Held: YES. The failure of Groups 1 & 2 to notify the Group
3 heirs in writing 1 month after the sale meant that Group 3’s
right to redeem never prescribed.
1. SC did not consider the registration of the deed of sale
with the Register of Deeds sufficient notice, most especially
because the property involved was unregistered land, as in
the instant case. The registration of the deed of sale as
sufficient notice applies only to registered lands and has no
application whatsoever to a case where the property involved
is, admittedly, unregistered land.
2. The written notice requirement is indispensable, actual
knowledge of the sale acquired in some other manners by the
redemptioner, notwithstanding. The co-heir is still entitled to
written notice, to remove all uncertainty as to the sale, its
terms and its validity, and to quiet any doubt that the
alienation is not definitive. The law not having provided for
any alternative, the method of notifications remains
exclusive, though the Code does not prescribe any particular
form of written notice or any distinctive method for written
notification of redemption.
Conflicting Jurisprudence on Written Notice
 In 3 cases, written notice was not required; actual
knowledge or notice to the co-heirs was already
considered proper notice, but only when there are
“peculiar circumstances” (Alonzo v. IAC)
 But in a 2003 case, it was reiterated again that
written notice is mandatory (Primary Structures v.
Valencia)
Art. 1088 & Art. 1620 Distinguished
 Art. 1620 applies where the co-ownership covers
specific property
o Art 1620. A co-owner of a thing may
exercise the right of redemption in case the
shares of all the other co-owners or of any of
them, are sold to a third person. If the price
of the alienation is grossly excessive, the
redemptioner shall pay only a reasonable
one.
Should 2 or more co-owners desire to
exercise the right of redemption, they may
only do so in proportion to the share they
may respectively have in the thing owned in
common.
 Art. 1088 applies where the co-ownership covers the
mass of the hereditary estate
 HOWEVER, the effect of both is the same
Where More than One Co-Owner Wants to Redeem
ALL the co-owners wishing to redeem may do so, but in
proportion to each one’s hereditary interest over the mass
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CASE: CUA V. VARGAS
Facts: Paulina (decedent) left behind a parcel of residential
land. A notarized Extrajudicial Settlement Among Heirs was
executed by and among her heirs, partitioning the subject lot
so that each got a share of 11 sqm. However, only 5 out of
Paulina’s 9 heirs signed the same. By virtue of said the
Settlement, Joseph was able to acquire the shares of the 5
signatory heirs totaling 55 sqm. Gloria, one of the excluded
co-heirs, only came to know of the Extrajudicial Settlement
when the original house built on the lot was demolished. She
tried to redeem the property with a letter from her counsel to
Joseph, but the latter refused. This prompted Gloria to file
for the Annulment of the Extrajudicial Settlement which was
dismissed by the MTC, which held that although there was a
failure to strictly comply with the requirements under Art.
1088 for a written notice of sale to be served upon
respondents by the vendors, this deficiency was cured by
Gloria’s actual knowledge of the sale, which was more than
30 days before the filing of the complaint. Thus, the action
came too late. Was the MTC correct?
Held: NO. The right to redeem was never lost because
Gloria because she & her fellow excluded co-heirs were
never notified in writing of the actual sale by the others.
Written notice is indispensable and mandatory; actual
knowledge of the sale acquired in some other manner by the
redemptioner notwithstanding. The obligation to serve
written notice devolves on the vendor co-heirs because it is
they who are in the best position to know the other co-
owners who must be notified of the sale. Considering that
Gloria’s co-heirs failed to comply with this requirement,
there is no legal impediment to allowing her to redeem the
shares sold to Joseph.
Class Discussion
Q: What is meant by the right of redemption?
A: The heir can buy back the property from the person who
bought it.
Q: What if the heir sold his share after partition?
A: This Art. would not apply because the Art. refers to the
sale of the aliquot portion prior to partition.
Q: How much do the heirs have to pay the one who bought?
A: The price that the purchaser gave to the co-heir who sold
the property. The purchaser cannot ask for a price increase.
It is a simple reimbursement.
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)
Article 1090. When the title comprises 2 or more pieces of
land which have been assigned to 2 or more co-heirs, or
when it covers one piece of land which has been divided
between 2 or more co-heirs, the title shall be delivered to the
one having the largest interest, & 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)
Right Over the Registered Title
This Art. provides for the right over the registered title (the
document)
 BUT: The co-heirs 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 adjudicated to
him. (1068)
Notes on Art. 1091
The article merely points out the obvious effect of partition –
the termination of co-ownership
Class Discussion
Q: When does ownership begin?
A: From the moment of the death of the decedent; the title
only gives him stronger proof that he is the owner.
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)
Obligation of Mutual Warranty
As provided in Art. 501 (for co-owners, applicable to co-
heirs): Every co-owner shall, after partition, be liable for
defects of title & quality of the portion assigned to each of
the other co-owners.
Applicability of General Rules on Warranties
Rules on Warranties under Arts. 1547-1580 will apply
insofar as they are not inconsistent with the rules here.
Class Discussion
Q: What is meant by warranty of quality?
A: An heir was promised 100 sqm. of fertile agricultural
lands, but he was given 100 sqm. of dry agricultural land.
The heir can contest this using the provisions on warranty.
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 financial
condition improve. (1071)
Proportional Liability of Co-Heirs on Warranty
Burdens should be proportional to benefits.
Insolvency of One of the Obligors
Should one of the co-heirs bound to make good the warranty
be insolvent, his portion shall be borne proportionally by all,
including the one entitled to the warranty.
Illustrative Example
Q1: Co-heirs A, B, C, D & E own equal shares of P60K
each. B was evicted from the property he got during
partition; he thus claims warranty for the total amount of his
share. How will the co-heirs contribute?
A1: A, C, D, & E have to contribute P12K each to make
good the warranty.
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 Since there was eviction to the amount of P60K, it
follows that the total value to be partitioned is only
P240K; hence, P48K each.
Q2: What if A is insolvent?
A2: A’s share of P12K will be borne by the others, including
B. Hence, C, D, & E have to contribute P3K more, making
their individual liability P15K. B will receive a total of P45K
having borne his own share of P3K from A’s insolvency.
Exception to Right to Reimbursement from Insolvent Obligor
Judicially declared insolvency; this would extinguish all
obligations of the insolvent.
Article 1094. An action to enforce the warranty among heirs
must be brought within 10 years from the date the right of
action accrues. (n)
Article 1095. If a credit should be assigned as collectible,
the co-heirs shall not be liable for the subsequent insolvency
of the debtor of the estate, but only for his insolvency at the
time the partition is made.
The warranty of the solvency of the debtor can only be
enforced during the 5 years following the partition.
Co-heirs do not warrant bad debts, if so known to, &
accepted by, the distributee.
 BUT if such debts are not assigned to a co-heir, &
should be collected, in whole or in part, the amount
collected shall be distributed proportionately among
the heirs. (1072a)
Credit Assigned to Co-Heir in Partition
 The warranty covers ONLY the insolvency of the
decedent’s debtor at the time of partition
 Subsequent insolvency is NOT covered, as the co-
heir would have taken the risk
 Warranty has a special prescriptive period of 5 years
Bad Debt Assigned to a Co-Heir
You be foolish, bitch. No refund for you.
Class Discussion
Q1: What if the heir’s share is the payment of a debtor, but
years later it is found that the debtor has become insolvent.
Can said heir ask to be reimbursed by the other co-heirs?
A1: Yes, based on Art. 1095.
Q2: What if the creditor is insolvent at the time of partition?
A2: The heir can no longer ask for reimbursement from his
co-heirs, because the heir knew he was insolvent & yet he
accepted.
Article 1096. The obligation of warranty among co-heirs
shall cease in the ff. cases:
(1) When the testator himself has made the partition,
unless it appears, or it may be reasonably presumed,
that his intention was otherwise, but the legitime
shall always remain unimpaired;
(2) When it has been so expressly stipulated in the
agreement of partition, unless there has been bad
faith;
(3) When the eviction is due to a cause subsequent to
the partition, or has been caused by the fault of the
distributee of the property. (1070a)
Instances When There is No Mutual Warranty
1. Partition by the testator himself
  EXC: Where the legitime has been impaired
2. Agreement among the co-heirs to suppress the
warranty
3. Supervening events causing the loss or the
diminution of value
4. Fault of the co-heir
5. Waiver
SUBSECTION 3. Rescission & Nullity of Partition
Article 1097. A partition may be rescinded or annulled for
the same causes as contracts. (1073a)
Causes for Annulment
Art. 1390. The ff. contracts are voidable or annullable, even
though there may have been no damage to the contracting
parties:
(1) Those where one of the parties is incapable of giving
consent to a contract;
(2) Those where the consent is vitiated by mistake,
violence, intimidation, undue influence or fraud.
These contracts are binding, unless they are annulled
by a proper action in court. They are susceptible of
ratification.
Causes for Rescission
Art. 1381. The ff. contracts are rescissible:
(1) Those which are entered into by guardians whenever
the wards whom they represent suffer lesion by more
than ¼ of the value of the things which are the object
thereof:
(2) Those agreed upon in representation of absentees, if
the latter suffer the lesion stated in the preceding
number;
(3) Those undertaken in fraud of creditors when the
latter cannot in any other manner collect the claims
due them;
(4) Those which refer to things under litigation if they
have been entered into by the defendants without the
knowledge and approval of the litigants or of
competent judicial authority;
(5) All other contracts specially declared by law to be
subject to rescission.
Important Note for Art. 1097
Pars. 1 & 2 are modified by the following Art.
CASE: BAUTISTA V. BAUTISTA
Facts: Teodoro died, leaving her husband, Isidro, & 5 kids,
with a piece of property from her. Isidro & 4 of the kids
executed a Deed of Extrajudicial Partition, with dad waiving
his share, leaving out 1 brother. This 1 brother sought to
have the extrajudicial partition annulled on the ground that
he was excluded. RTC ruled in his favor, but CA reversed on
the ground that the brother’s action for reconveyance had
already prescribed. Was the CA’s contention correct?
Held: NO. No extra-judicial settlement shall be binding upon
any person who has not participated therein or had no notice
thereof. As the partition was a total nullity and did not affect
the excluded heirs, it was not correct for the trial court to
hold that their right to challenge the partition had prescribed
after 2 years.
The deed of extra-judicial partition in the case at bar being
invalid, the action to have it annulled does not prescribe.
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Furthermore, the deed of extra-judicial partition is invalid, it
transmitted no rights to Teofilo’s co-heirs.
CASE: REYES V. RTC OF MAKATI
Facts: Pedro (father), Anastacia (mother), Oscar (son), &
Pedro (son) owned shares of stock of Zenith Insurance.
Pedro died & his estate was judicially partitioned among his
heirs. Anastacia subsequently died. Anastacia’s estate
(included shareholdings in Zenith) had not been partitioned.
Rodrigo learned that the shareholdings of Anastacia were
fraudulently transferred to Oscar. Rodrigo and Zenith filed a
derivative suit to obtain an accounting of the assets of Zenith
and to determine shares of stocks appropriated by Oscar for
himself. Oscar denied the allegations and challenged the
jurisdiction of RTC (initially the SEC, prior to transfer of
jurisdiction made by RA 8799) as a special commercial
court since the action pertains to the settlement of the estate
of Anastacia. Did the RTC, as a special commercial court,
have jurisdiction to rule on the matter?
Held: NO. Rodrigo’s action is based on successional rights
and not of those of a stockholder. Therefore, the action is not
an intra-corporate controversy.
The RTC, as special commercial court has no jurisdiction to
hear Rodrigo’s complaint since what is involved is the
determination and distribution of successional rights to the
shareholdings of Anastacia. Rodrigo’s proper remedy is to
institute a special proceeding for the settlement of the estate
of the deceased Anastacia.
Article 1098. A partition, judicial or extra-judicial, may also
be rescinded on account of lesion, when any one of the co-
heirs received things whose value is less, by at least ¼, than
the share to which he is entitled, considering the value of the
things at the time they were adjudicated. (1074a)
Lesion
Lesion is economic injury, where the party receives less than
he is entitled to receive.
Amount of Lesion
 The minimum extent of lesion for rescission to be
available is ¼ (25%).
 Note the slight variation from pars. 1 & 2 of Art.
1381,39 which specifies more than ¼.
o Evidently, in cases of partition of the
inheritance, Art. 1098 applies.
Class Discussion
Q: Who can the aggrieved heir sue?
A: Those who received more only, not those who received
less or their proper share.
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)
39
Article 1381. The following contracts are rescissible:
(1) Those which are entered into by guardians whenever the wards whom they
represent suffer lesion by more than ¼ of the value of the things which are the
object thereof;
(2) Those agreed upon in representation of absentees, if the latter suffer the
lesion stated in the preceding number; […]
Art. 1099 is Exception to Art. 1098
A partition made by the testator himself is not subject to
rescission even in case of lesion in the amount specified in
Art. 1098, except in the ff. cases:
1. Impairment of the legitime
 EVEN IF the lesion is less than ¼
2. Mistake by the testator or vitiation of his intent
Article 1100. The action for rescission on account of lesion
shall prescribe after 4 years from the time the partition was
made. (1076)
Art. 854 v. Art. 1004
 This is not preterition under Art. 854
 In Art. 1004, there is an omission of a compulsory
heir in the partition
o The assumption is that something is left for
him in the form of an undisposed portion of
the estate. The omitted heir simply gets his
rightful share
 In Art. 854, preterition pertains to a compulsory heir
is direct line who is excluded from the inheritance in
terms of designation, & not just partition

Article 1101. The heir who is sued shall have the option of –
 Indemnifying the plaintiff for the loss, or
 Consenting to a new partition.
Indemnity may be made –
 By payment in cash or
 By the delivery of a thing of the same kind & 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 have not received more than their just share.
(1077a)
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)
An Outsider Mistakenly Included
 In Art. 1105, an outsider is mistakenly included in
the partition.
 Remedy: Recover the property from him & have it
redistributed among the proper recipients.

Obligor’s Options
It is the co-heir who is sued for rescission 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)

Notes on Art. 1102

Correlated with Art. 1101, this Art. is unnecessary, since
anyway it is the party sued who is given the option.

Article 1103. The omission of one or more objects or

securities of the inheritance shall not cause the rescission of
the partition on the ground of lesion, but the partition shall
be completed by the distribution of the objects or securities
which have been omitted. (1079a)

Incompleteness of the Partition

 Incompleteness of the partition is not a ground for
rescission.
 The remedy is a supplemental partition.

Class Discussion
One example of this situation: There was a car parked in the
house in Baguio that the heirs forgot to include in the
partitioning. Art. 1103 would be used in such a case.

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 proportionately
obliged to pay to the person omitted the share which belongs
to him. (1080)

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