PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS
brother that died technically never had the chance to inherit.
SECTION 1
RIGHT OF ACCRETION
ART. 1015: Definition of Accretion
Reason for accretion: It is a right based on the presumed will of the
deceased that he prefers to give certain properties to certain individuals
rather than to his legal heirs. It follows the decedent’s implied desires.
How Accretion may be avoided: It may be avoided by the deceased himself
1. By expressly designating a substitute
2. By expressly providing that although accretion may take place, still he
does not want accretion to occur, that he desires no accretion in favor of
those who ordinarily would be entitled to it.
Requisites for Accretion:
1. Unity of object (one inheritance)
2. Plurality of subjects
3. Vacant portion (repudiation of one’s share)
4. Acceptance (of the portion accruing) – by the person entitled
Note:
Accretion is a right and not an obligation, it may be accepted or repudiated
by those entitled to it. (Both in testate and legal succession)
Accretion both in testamentary and legal succession:
Testamentary
Predecease – Art. 1016
Incapacity - Ibid
Repudiation-Ibid
Note: In incapacity and predecease, representation to the legitime takes
precedence over accretion
Legal Succession
Repudiation- Art. 1015
Incapacity – Ibid without prejudice to the right of representation
Note: In case of predecease in legal succession, there is really no vacant
portion = no accretion/ survivors inherit in their own right, the part
affected is given to intestate heirs: Ex. If 3 brothers were meant to inherit
but 1 brother predeceased. The 2 brothers get the share of the brother
that died in their own right and not by accretion/accumulation because
Vargas, Shaina Roselle S.
BS LM
San Beda University
intestate succession presupposed the survival of intestate heirs and the
Accretion may take place also:
1.if a suspensive condition is not fulfilled (a form of incapacity)
2. failure to identify one particular heir, devisee, or legatee (ineffectiveness
of institution) but the others can be identified.
Art. 1016: Accretion in Testamentary Succession
Ex. T instituted A & B as his own heirs. If A predeceased T, the share of A
accrues to B. Thus, B inherits half by institution and half by accretion.
Pro-indiviso – undivided (same inheritance or same portion)
Indispensable requisites for right of accretion to exist
Testamentary- Art. 1016
Legal Succession – Repudiation or Incapacity of some of the co-heirs of the
same degree (Arts: 1015 and 1018)
Art. 1017: Non-Earmarking (no setting apart of share)
Par. 1
Ex. T gave A & B ½ each of a particular house = there can be accretion since
½
No accretion if: A had been given the first floor and B the second floor
Note: (if however, the portion given are unequal) = it shows more or less a
special designation of parts “implying the intent of the testator to exclude
accretion
XPN: (New Civil Code) It is believed that there can still be accretion since
the mere fixing iof aliquot parts do not necessarily make the property
determinate or specific, we still cannot ascertain which section or portion
of the car A & B were being made the exclusive owners thereof.
Par. 2 Money of Fungible goods
Earmarked = no accretion ex. A (money in the left-hand drawer) B (money
in the right-hand drawer)
Not earmarked = there can be accretion
Note: Voluntary heir or legatee who predeceases the testator cannot be
represented (he transmits no rights to his own heirs)
B&C can claim in equal shares the share of A
Intestate heirs cannot claim by intestacy the supposed share of A because
ACCRETION IS PREFERRED OVER INTESTACY
Note: Intestate succession to a vacant portion can only occur when
accretion is impossible
Art. 1018: Accretion in Intestate Succession
Article speaks of repudiation only
Article also applies to incapacity without prejudice to the right of
representation
This article does not speak of predecease for in such case there is no
vacant portion
Impt. Note: Intestate heir who is incapacitated can be represented but
voluntary heir cannot be represented
Art. 1019: Proportional sharing of property received by accretion
Ex. A testator gave X ½ of an undivided house, Y, 1/3, and Z 1/6. If X
repudiates, Y and Z will share X’s portion in the proportion of 1/3 and 1/6
(2 to 1) because this was the proportion they were instituted.
The rule is similar to the rule of sharing in substitution
Accretion and Substitution are similar also in that both refer to FREE
PORTION (vacancy caused by predeceased, incapacity, or repudiation)
The portion is generally received with the same charges and conditions
Art. 1020: Effect of Accretion and Exceptions thereto
The exception to the effects of this article occurs when there is contrary
express provision in the will or when the rights and obligations referred to
are personally applicable only to the original heir, legatee, or devisee.
Art. 1021: Accretion among compulsory heirs
Note: NO ACCRETION insofar as the legitime is concerned, accretion
concerns only the FREE PORTION
Institution concerns only the free portion
Ex. Estate is 600K. T institutes as his heirs two legitimate children X and Y,
and Z, a friend.
Ans. X and Y should first be given their respective legitime =1/2 0f 600k =
300k divide by 2 = 150k each and the free portion 300k will be divided to
the 3 of them as instituted heirs
What if X predeceases T?
Ans. X’s share of 150k on his legitime will go to Y. X’s share of 100K in the
free portion will go equally to Y and Z since this is the way they were
instituted in the free portion.
Impt. Note: Voluntary heir cannot be represented
No accretion if compulsory heirs are not instituted in the free portion
hence, if there’s intestacy they will inherit as intestate heirs and not by
accretion
Vargas, Shaina Roselle S.
BS LM
San Beda University
If 1 out of 2 legitimate children predeceases Testator, the other gets the
share (legitime of the other) NOT BY ACCRETION but by his own right for
the same is his legitime.
Art. 1022: Rules when Accretion does not take place
Order of preference (ISRAI)
Ex. T gave 10M (Citibank) to A and 10M (BPI) to B (A&B are T’s Friends) No
substitute was appointed. S, a sister of T was given nothing. A repudiates
his share. Who will get A’s share?
B will not get it by accretion SINCE accretion cannot take place because
there’s earmarking of share. Hence, S, the sole intestate heir, gets A’s
share.
Art. 1023: Accretion among Devisees, legatees, and usufructuaries
Note: Rules for accretion among heirs should be followed
SECTION 2
CAPACITY TO SUCCEED BY WILL OR BY INTESTACY
Art: 1024: Capacity to Succeed
Ability to inherit and retain property obtained Mortis causa
Also known as “Passive Testamentary Capacity”
GR: Persons not incapacitated by law may succeed by will or ab intestato
Provisions relating to incapacity by will are equally applicable to intestate
succession (Art. 1024) except Arts. 1027 (nos 1-5) and 1028 (applies only to
testamentary succession)
Persons – natural and juridical
Insane Persons – though incapacitated to enter into contracts or to make
wills or to dispose of their properties are nevertheless entitled to or
capacitated to inherit. (they are usually more deserving of the testator’s
generosity)
Kinds of Incapacity to Succeed:
ABSOLUTE – CAN NEVER inherit from anybody regardless of circumstance
RELATIVE – cannot inherit only from certain persons or certain properties
but can inherit from others or other properties
3 Kinds of Relative Incapacity
1. Possible undue influence (Art 1027)
2. Public policy or morality (Art 1028 and Art 739)
3. Unworthiness (Art 1032)
Art. 1025: Persons absolutely incapacitated
2 classes:
1. Individuals, associations, and corporations not permitted by law to
inherit
2. Those who lack juridical personality (Abortive infants, or those who do
not comply with the reqs of Arts. 40 and 41)
Requisite for Capacity to Inherit:
1. Already living/at least conceived the moment succession opens (see art
41 for conceived child)
2. No exception in no. 1, even if the law says except in case of
representation
*Representative must be alive or at least conceived
Note: a legacy made in favor of a legatee who was already dead at the time
the will was made is VOID.
Art. 1026: Dispositions in Favor Entities
Some of the organizations are juridical persons and some are not
Juridical persons: allowed to inherit not because they have juridical
existence but because of this article. Essential that they have complied
with all the requirements for the existence of juridical persons.
Private juridical persons cannot of course inherit in legal succession
Art. 1027: Incapacity because of possible undue influence
Par. 1: Priest of Minister – to safeguard the rights of the heirs who may be
defrauded by the sinister and undue influence which may be exercised by
some priests or ministers over a dying man. Exercise of Undue Influence is
CONCLUSIVELY PRESUMED, disqualification exists w/o the necessity of
actually proving. Incapacity cannot be cured.
Note: Same conclusive presumption attaches to all the disqualifications
mentioned in Art. 1027
*Will must have been made in view of “the last illness” for it is there that
undue influence could have been exercised. It must also have been made
after the confession. If “before” the same could have been valid. If “long
after the illness”, disqualification does not apply.
*While illness must be the last, confession need not be the last
*Last illness – is that of which the testator died, or the one immediately
preceding it. Illness need not be chronic or acute, long or short. What is
material is THE GREAT POSSIBILITY OF DEATH
Disqualification does not extend to:
1. The legitime
2. To intestacy
Vargas, Shaina Roselle S.
BS LM
San Beda University
3. to dispositions that do not extend a testamentary benefit (executor, or
payment of debts or obligation) ROC provides that executor must have the
court’s approval
Ex. The priest is the testator’s only son.
He will get his legitime but disqualified in the free portion. This may be
inherited through accretion by an instituted heir like a friend of testator.
If testator died intestate with only the son-priest as the only legal heir, the
son-priest will get the entire estate.
“Heard the Confession” means a priest who extends spiritual aid other
than confession like “extreme unction” is not disqualified.
“Minister of Gospel” other than priests, the extension of “spiritual aid”
disqualifies them.
Par. 2: Relatives of such priest or minister within the 4 th degree, the church,
organization, etc.
Relatives by consanguinity
Disqualification in this paragraph extends only to the 4th degree
Par. 3: Guardians
Guardian of the person or the galaxy since both can exercise undue
influence
They are disqualified to inherit UNLESS:
1.The will was made AFTER the approval of the final accounts
2. Guardian is a relative (ascendant, descendant, brother, sister, or spouse)
Reason for disqualifying guardians: Conclusively Presumed to have
exercised undue influence
XPN: When guardian is one of the relatives mentioned in law.
Meaning of Final Accounts: Those that terminate the financial
responsibility of the guardian. Given to the court when the guardian is
removed or when he resigns or when there is no need for the guardianship
to continue
Note: the law does not disqualify the guardian’s relatives (unlike in the
priests and minister) But if given to said daughter of guardian only for the
guardian to get the benefit of it later on then it will be null and void not
because of Art. 2027 no. 3 but of Art. 1031 which says that 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.
Par. 4: Attesting Witness
A witness is qualified to inherit if there are 3 other competent and
disinterested (not given anything) witnesses to the will
Notary Public – (Sec 22 of the 1889 Notarial Law) – disqualified to inherit
the witnesses is not given any testamentary disposition BUT instead
burdened with duty, the burden can properly be made provided that the
witness accepts the responsibility.
Par. 5: Physicians, surgeons, etc.
To disqualify them it is essential that will or disposition in their favor was
made during the last illness and after the care by them had commenced
They “took care” of the testator (regular caring)
What if the physician is RELATIVE to the testator? The testamentary
disposition is still not valid: the law makes no distinction unlike in the case
of the guardian
A physician is not disqualified to inherit by intestacy because
1. The law uses the term testator
2. Intestacy takes place by operation of law
Par. 6: Individuals, associations, and corporations not permitted by law to
inherit
Refers to absolute not relative incapacity
“Individuals” like abortive infants
The prohibition must have been imposed by law. Note the phrase “not
permitted by law to inherit”
Art. 1028: Incapacity by reason of Public Morality
The following donations shall be void:
1. Made between persons who were guilty of adultery or
concubinage at the time of donation
2. A person found guilty of the same offense, in consideration
thereof
3. Those made to a public officer or his wife, descendants, and
ascendants by reason of his office
*Action for declaration of nullity may be brought by the spouse of the
donor or the donee, and the guilt of the donor and the donee may be
proved by a preponderance of evidence in the same action (Art. 739 Civil
Code)
Ex. Guilty of adultery or concubinage at the time of the making of the will,
there need not be any criminal conviction for this guilt can be proved
civilly.
Art. 1029: Disposition for Prayers and Pious Work
Vargas, Shaina Roselle S.
BS LM
San Beda University
Requisites:
1. Disposition is for prayers and pious work
2. Disposition is in general terms
3. Disposition does not specify its application. (if a particular heir,
devisee, legatee, or stranger is burdened with duty, or if definite
place or date is fixed for the prayers, the article does not apply)
*refers to the institution of the soul. Such institution is recognized as valid,
though the soul is not a person
Art. 1030: Dispositions in favor of the poor
Article applies if the disposition is in favor of
1. The poor in general (par. 1)
2. The poor of a definite locality (par.3)
The poor in general: only the poor in testator’s domicile at death should be
considered.
Who designates the poor:
1. The person appointed for the purpose
2. If none, the executor
3. No executor – 3 people (by majority vote)
 Justice of peace (MTC Judge)
 Mayor
 Municipal Treasurer
*All questions are subject ultimately to the final determination by the
court. Law uses the word “approval” question as to who really are the poor
is a judicial question.
Art. 1031: Dispositions in favor of a disqualified person
Purpose: To prohibit the testator from violating indirectly what he cannot
violate directly
How the interposition of a third party may be done:
1. If the disposition is disguise as an onerous contract
2. If fictitious debts are ordered paid
3. If an intermediary is interposed (for him later on to give to the
incapacitated person)
Ex. T wants to give L a legacy. T knew L has tried to kill him but
nevertheless interposed F with instruction to give L, is L qualified to get the
legacy?
Ans. Yes. Act of giving is an implied condonation of an unworthy act (Art.
1033)
Phrase “disqualified person” refers not to one incapacitated by reason of
unworthiness but one incapacitated either absolutely or by reason of
possible undue influence or by reason of morality.
[See page 560 for another example]
Art. 1032: Incapacity by reason of unworthiness
Par. 1 (See also comment in Art. 920 (No.1)
Also applies to granddaughters and sons in view of parent’s moral
perversity
“Attempted against their virtue” no criminal conviction is needed here
Par.2: (See also comment under Art. 919 (no. 1)
Requires conviction by final judgment
Acquittal on any ground, even that of reasonable doubt, does not result in
incapacity
Conviction need not be done before the testator’s/decedent’s death,
enough that the heir be convicted later on
Rendition of the final judgment must be awaited. Although conviction be
after death, the fact of conviction retroacts and its effects retroact to the
time of the decedent’s death.
Even if pardoned, still incapacitated because conviction is present. But if
given an amnesty before FJ, he would be qualified.
If the heir should die before final judgment, the fact that no final judgment
yet, he is capacitated (as long as he does not predecease the testator)
If the heir made the attempt to kill AFTER the death of the testator, he is
still capacitated to inherit from the testator because he was not
incapacitated at the time of the testator’s death.
Attempt must be before and not after the testator’s death
Par. 3: See also comment under Art. 919 (a)
For the accusation to be groundless, there must be a definite acquittal and
not one which is based merely on reasonable doubt, there was some
ground for the accusation and therefore incapacity does not arise.
Par. 4: Failure to report violent death
Requirements:
1. Heir, legatee, devisee must be of FULL AGE (at least 21 y/o)
2. MUST have knowledge of the violent death of the
testator/decedent
3. FAILURE TO REPORT within a month UNLESS authorities have
already taken an action
4. There is an OBLIGATION to make the accusation
Vargas, Shaina Roselle S.
BS LM
San Beda University
*In the Philippines, no one is obliged to make an accusation unless it be the
state officials concerned
Par. 5:
(a) Conviction by Final Judgment is essential since the law says
“convicted”
(b) An heir incapacitated by reason of unworthiness, even if he be a
compulsory heir, loses all right to inherit from the deceased. He
loses all not only the legitime but also that which would have
appertained to him had he been capacitated. This is of course
without prejudice to the right of representation when proper.
Art. 1033: Rules for Condonation
ALREADY KNEW AND YET STILL INSTITUTED = IMPLIED
CONDONATION/Pardon by implication
ONLY AFTER EXECUTION = CONDONATION MUST BE IN WRITING (Public or
Private)
Note: Incapacity also obtains in intestate succession
Reason for Allowing Condonation: Decedent’s intention
Effect of Presidential Pardon: Still incapacitated unless pardon was given
because of proven innocence
Note: Service of Sentence does not erase incapacity
[See page 566]
Article does not apply to Arts. 1027 & 1028
Art. 1034: How to Judge the Capacity of the Heir
Par. 1: Reason: Capacity must be determined at the moment of death of
the decedent.
In case of suspensive conditional institution, the heir must be capacitated
both
1. At the time of the testator’s death
2. At the time the condition is fulfilled
Note: The condition must of course be complied with
Art. 1035: Incapacitated Compulsory heir can be represented
Representatives get the unworthy heir’s legitime
No representation with reference to the free portion
Free portion may be given to:
1. Substitute, if any
2. Co heirs, in case of intestacy, if accretion is not proper
In case of complete intestacy, right of representation covers the intestate
share of the unworthy heir
Observe that a living person may be represented in case of:
1. Incapacity (Art. 1035)
2. Disinheritance (Art. 923)
Problems [See page 569]
Cross reference to Persons [See page 570-572]
Art. 1036: Judicial Order of Exclusion
Court declares which of the heirs are disqualified or incapacitated
Effects of Acts of alienations by the excluded heir [See page 572]
Alienations before the death of the deceased
Alienations of “hereditary property” by the unworthy heir are, of course,
VOID if made before the death of the decedent if made before the death of
the decedent. No hereditary property speaking just yet. True regardless of
good faith or bad faith of third person.
Art. 1037: Indemnities to be reimbursed excluded heir
Article speaks of 2 rights
1. To collect necessary expenses (for preservation regardless of good
faith or bad faith)
2. To collect credit (because while he is incapacitated to inherit, still,
he is a creditor)
Useful and Luxurious Expenses – deemed govern by the rules on
possession, good or bad faith is important
Problem [See page 573]
Art. 1038: Incapacitated Heir who disregards prohibition
Example: [Seepage 574]
Note: Good or bad faith of the heir is not important, he is conclusively
presumed to have acted in bad faith
Art. 1039: Capacity to succeed is governed by the law of the nation of the
decedent
Capacity from a Viewpoint of Private International Law
Governed by the national law of the decedent
When the National law of the deceased governs:
(Art. 16) 4 things are governed by the national law of the decedent
1. Order of succession
2. Amount of successional rights
3. Intrinsic validity of the provisions of the will
4. Capacity to succeed
Art. 1040:
Vargas, Shaina Roselle S.
BS LM
San Beda University
(1) Prescriptive period for the declaration of incapacity and for
recovery of the inheritance
Shall be brough within 5 years from the time the disqualified heir took
possession thereof
Action must be both for declaration and recovery. Action for recovery
is sufficient for there can be no recovery unless a declaration of
incapacity is first made
Action must include recovery of accessions, rentals, and fruits
Note: if there be administration and settlement proceedings, the
residue (after debts) will be distributed after due hearing on the rights
of the parties involved. Of course, judgment is conclusive only on
those who had notice of the proceedings
(2) Who can bring the action
Anyone who may have an interest in the succession (the person who
would inherit in the place of the disqualified heir)
Note: Judicial declaration of incapacity is different from the conviction
required by Art. 1032, (2), (3), and (5).
SECTION 3
ACCEPTANCE AND REPUDIATION OF INHERITANCE
Art. 1041: Voluntary and Free Acceptance and Repudiation
Acceptance and Repudiation are voluntary or acts
Presence of vitiated consent gives rise to their revocability
More usual to accept than to repudiate
Acceptance may be presumed while repudiation requires more
formalities
There can be partial acceptance & partial repudiation since the law
does not prohibit this
Even the legitime may be repudiated
Reason for allowing repudiation: No one can be compelled to accept
the generosity of another
A & R cannot be made during the lifetime of the testator or decedent
except collationable donations inter vivos and remissions are
concerned.
 Art. 1042: Retroactive Effect of Acceptance & Repudiation
Purpose: To prevent any stage where property will be without an
owner and possessor
Pure and Absolute Acceptance & Repudiation
There must be no term or condition otherwise purpose may be
frustrated -there would be uncertainty as to whether properties or
right will be transmitted or not.
Art. 1043: When Acceptance or Repudiation may be made
Must be made in DUE TIME
2 requisites:
1. Heir must be certain of the death of the decedent (presumed
death for purposes of succession is enough)
2. Heir must be certain of his right to the inheritance (acceptance by
a legatee when the will was void is useless)
Presumptions of Death [ SEE Art. 390 & 391 Civil Code]
Even if Absentee Reappears (or w/o appearing his existence is proved)
He shall recover his property in condition which it may be found, and the
price of any property that may have been alienated or property acquired
therewith; but he cannot claim either fruits or rents. (Art. 392)
Art. 1044: Who may accept or repudiate
Acceptance – mere acceptance by those in charge (guardians or parents) in
behalf of incapacitated person (minor or insane man who cannot dispose
of his property) therefore, no judicial authorization is needed, UNLESS
there be burdens.
Note: Insane person of course cannot accept all by himself, unless it be
proved that he acted during a lucid interval
Repudiation – (being an act of alienation) COURT APPROVAL IS NEEDED
Vargas, Shaina Roselle S.
BS LM
San Beda University
Art. 1045: Rules for Juridical Entities
Acceptance: Does not need court approval. (A benefit is presumed)
Repudiation: requires court approval (Such approval may be demanded by
public policy and interest because the act can result in loss of patrimony)
Art. 1046: Rules for Public Official Establishments
Approval of the government is required
This approval by the government even when the bequest or gift is not
conditional
Public Official Establishments – devoted to public purposes (charity or
education) and supported by public money
Art. 1047: Repudiation by Married Woman of Age
Old Civil Code: Art. 995, married woman cannot repudiate w/o consent of
husband
New Civil Code: Art. 1047, consent no longer required
Why consent no longer required? Because after all if she gets the
inheritance, it becomes part of her separate property
Art: 1048: Rule for Deaf-Mutes
Acceptance – No judicial approval required Repudiation: Required to
protect the ward’s interest.
If he can read/write and has no guardian: can accept or repudiate w/o
need of judicial approval.
Art. 1049: Kinds of Acceptance
May be:
Express
Implied or Tacit (Art. 1049) through actions which one would have no right
to do except in the capacity of an heir
Presumed (Art. 1067) if within 30 days after the court has issued an order
for the distribution of the estate, the people concerned have not signified
their acceptance or repudiation

Note: Acts of preservation do not necessarily imply an acceptance but
neither do they signify a repudiation
Art. 1050: Instances of Implied Acceptance
Term “acceptance” may not be used, still, when a person receives
something else for himself, or confers an extra advantage on others, he
does so because he is disposing of what he has already accepted.
Par. 1: Inheritance is deemed accepted because one is not supposed to
dispose of what he does not own
Par. 2: renouncing, whether gratuitously or for consideration, in favor of
one or more of his co-heirs
Par. 3: Renouncing whether gratuitously or for a consideration
For Examples: [See page 582-584]
Art. 1051: Why repudiation must be made expressly
1. Act of disposing of property rights
2. Unnatural and resultantly disturbs juridical relations
3. Creditors of the renouncer should be more or less informed,
hence the need for an express renouncing
How repudiation is made:
1. By public instrument
2. By an authentic, genuine (not forged) instrument
3. By petition to the court having jurisdiction over the testamentary
or intestate proceedings but must be presented within 30 days
from order of court for distribution of estate, otherwise this is
deemed to be an acceptance. (Art. 1067)
Note: One who repudiates deemed to have not owned or possessed the
inheritance (Art 533) w/o prejudice to the rights of creditors
One is not allowed to repudiate legacies with burdens when he accepts
gratuitous legacies
Vargas, Shaina Roselle S.
BS LM
San Beda University
Art. 1052: When creditors may accept
1. While rights may be waived, waiver cannot be allowed if it is
prejudicial to a third person with a right recognize by law
2. Creditors accept in the name of the heir not their own
3. Creditor cannot accept everything, only to the extent of the credit
to them
4. Even if creditors accept everything that has been repudiated,
renouncing heir is not considered as having accepted – he is still a
renouncer, and cannot therefore be represented.
Rule if Creditors will not be prejudiced: they will not be allowed to accept
in the name of the heir, therefore: if the heir has still enough properties of
his own to cover the debts, creditors cannot avail 1052.
Creditors in Art. 1052 are those already such at the time of repudiation
(those who have been prejudiced by it)
Problems: [See Art. 586, 587]
Art. 1053: When right to accept or repudiate is transmitted to heirs of the
heir
Death of the heir should be after that of the decedent in order that Art.
1053 may be applied.
What if B dies later than A but C renounces his right to inherit from B, can
C make use of Art. 1053?
No. Even if B was not able to accept or repudiate A’s inheritance. Even if C
accepted B’s inheritance, and would exercise B’s option, he would not
really be inheriting from A but from B who had survived A hence,
inheritance not by right of representation but by his own right – from B
Art. 1054: Rule if there are several heirs
Some may accept, and some may repudiate with respect to their individual
shares.
Art. 1055: Repudiation as Testamentary Heir
Par.1 reason: A testamentary heir who repudiates does not seem to
appreciate the generosity of the testator; therefore, he is not worthy to
receive his intestate share. He is understood to have repudiated in both
capacities. He is automatically disqualified from receiving his intestate
share. Form of an implied repudiation of intestate share by an express
repudiation of (testate)
Par.2 reason:
Repudiation as an intestate heir
It is always possible that the heir may respect the express will of the
testator and would not desire to see the wishes of the testator unfulfilled.
Remember:
Will – express will of the testator
Succession by Intestacy – only the presumed will of the decedent
Disregarding the express will should carry with it the disregarding of the
presumed will while disregarding of the presumed will does not necessarily
mean the disregarding of the express will.
Art. 1056: Irrevocability of Acceptance of Repudiation
GR: Once an acceptance or repudiation is made, it is irrevocable
Reason: To prevent confusion and instability of rights
XPN:
1. When acceptance or repudiation was made through any of the
causes that vitiate consent
 Mistake (of substance or principal condition), violence,
intimidation, undue influence, fraud
2. When an unknown will appears (Art. 1056)
 New will -only insignificant changes in the old one.
Appearance of of the new will should not allow the
impugning of the old one
 New will make substantial changes -old acceptance or
repudiation may be impugned
Note: A threat to enforce one’s claim through competent authority, if the
claim is just or legal, does not vitiate consent
If an heir instituted under a suspensive condition accepts but, condition is
not fulfilled, acceptance is naturally void.
Art. 1057: When acceptance or repudiation must be signified in court
Vargas, Shaina Roselle S.
BS LM
San Beda University
Provisions of Art. 1057 of the New Civil Code render the actions mentioned
by the old civil code unnecessary and lead to an earlier distribution of the
estate
Note: if no settlement or administration proceedings, obvious that this
article cannot apply
If there are settlement or administration, still, this article is not exclusive,
that is there can be allowed the other forms of accepting or repudiating
the inheritance. For example, the sale by an heir of his hereditary rights to
a stranger is a form of implied acceptance.
Art. 1057 provides a way for tacit or implied acceptance. Hence, if there
are administration or settlement proceedings, the heirs, etc, cannot
repudiate the inheritance after the lapse of 30 days.
Need for judicial approval
Parents and guardians may repudiate only if there’s a judicial approval.
SECTION 4
EXECUTORS AND ADMINISTRATORS
Art. 1058: Executors and Administrators
Rules 78-90 Rules of Court
 Distinctions with executor and administrator with a will annexed
have already been discussed
 Executor of a will cannot completely act as such before his
appointment is confirmed by court. If he acts as one before said
time, he is called an executor in his own wrong
 One day before the testator died, he designated his executor to
take over and administer the property. All actions done in
connection with the property by this executor de son tort must be
properly accounted for him.
 He may also be termed executor de facto
 No executor or administrator must be appointed till there is proof
of the decedent’s death.
 Administrator Pendente Lite or special administrator – one who is
appointed in the meantime to take charge of the estate, where
there is delay in the appointment of the regular executor or
administrator ( a delay due to certain causes such as an appeal
from the allowance or disallowance of a will)
  Other kinds of special administrator – One appointed even after
there is already a regular executor or administrator, when the
latter seeks to recover his own credit or claim against the estate.
Note: In such a case, the special administrator may be given
necessary funds for purposes of defense, the court may order the
regular administrator to give the funds out of the estate.
 One known as an administrator durante minore aetate – one
appointed when the person who has the right to become executor
or administrator is still a minor. The appointment continues until
the end of such minority.
Note: such person has all the rights of a regular executor or
administrator.
 In the appointment of a Regular Administrator, surviving spouse is
given the first preference.
 Said surviving spouse must be
o Capable, not hostile to those interested in the estate,
solvent (bond is needed), legal spouse
o Even if she marries again, her authority to act as
administratix continues.
Order of preference for appointment of regular administrator
o If no person is named in the will or the executors are
incompetent, refuse the trust, or fail to give bond, or a person
dies intestate, administration shall be granted:
o To the surviving husband or wife as the case may be, or next of kin
or both, in the discretion of the court or to such person as such
surviving husband or wife or next of kin, request to have
appointed if competent and willing to serve
o If such surviving husband or wife as the case may be or next of
kin, or the person selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin, neglects for 30 days
after death ( of the decedent) of the person to apply for
administration be granted to some other person, it may be
granted to one or more of the principal creditors, if competent or
willing to serve
o If there is no such creditor competent and willing to serve, it may
be granted to such other person as the court may select.
Note: order of preference may be disregarded by the probate court
provided no abuse of discretion has been made.
Vargas, Shaina Roselle S.
BS LM
San Beda University
Joint or plural administrators may be appointed, particularly when the
estate is large and there are different interest represented
Authority as administrator ends with: closing of settlement, testate or
intestate proceedings, death, resignation, removal
Principal Duty of Administrator: administering, settling, and closing the
administration without delay. Should determine what properties must
belong to the estate . Must bring the actions for recovery if they be in
possession of others. Within 3 months after his appointment, he must
submit an inventory and appraisal of the decedent’s real and personal
property. Within a year from his appointment, he must render proper
accounting.
Note: In a will, although a certain person is appointed expressly as an
administrator or executor, still if the intent is to make him a trustee, the
appointment should be construed as that of a trustee.
[Example see in page 597]
Generally, it is the executor or administrator who is primarily liable for
attorney’s fees due the lawyer who rendered legal services for the
executor or administrator – this is in relation to the settlement of the
estate, and where the executor or administrator may seek reimbursement
from the estate for the sums paid in attorney’s fees if it can be shown that
the services of the lawyer redounded to the benefit of the estate.
Art. 1059: Insolvency of the Estate
Rules on preference and concurrences of credits are to be applied in case
of insolvency of the estate.
Article 2244 gives the order of preference
[See Pastor v CA page 599]
Art. 1060: Juridical Entities Acting in Fiduciary Capacity
Juridical persons referred to can be appointed guardian of the property but
not the person of a ward.
SECTION 5
COLLATION
Meanings of Collation
2 meanings
1. Computing or adding certain values to the estate, and charging
the same to the legitime
 2. Computing or adding certain values to the estate and charging the
same to the free portion. Conversely, the phrase “not
collationable” can mean
a. It should be computed or added but it should be charged
to the free portion (and not to the legitime)
b. It should not even be computed or added to the estate,
for it is not part of the same.
Note: there can be collation both in testamentary and legal succession
[Settlement of the estate: see page 600]
Art. 1061: Collation by Compulsory Heirs
o Collation of the first kind - Adding values to the estate, and
charging the same to the legitimes – the purpose being to
produce equality as among the compulsory heirs of the same class
o Equality is produced because every donation inter vivos of 100K
to X, his elder child. Later, he died intestate, leaving the remaining
900k. How should this amount be divided between X, the elder
child, and Y, the younger child?
o Ans. 100k is collationable and therefore must be added to the
remaining 900k. Net hereditary estate is 1M which should now be
divided equally between x and y, who should get 500k each. But,
since X already received 100k as advance of his legitime or
inheritance, he will get only 400k more. Thus, also a net equality is
obtained. Not only is there equality in quantity but also in quality.
Thus, if 100k originally donated to X was in the form of a car, a car
worth 100k must, if possible, also be given to Y. X and Y may
receive the remaining 400k in the form of cash should there be
cash in the estate.
o Remember: The donee’s share of the estate shall be reduced by
an amount equal to that received by him, and his co-heirs shall
receive an equivalent, as much as possible, in property of the
same nature, class, and quality.
o [See cases page 602,603,604]
Reference to Compulsory Heirs
o Note that Art. 1061 and the succeeding articles refer only to the
compulsory heirs. This is because the aim of this chapter is to
consider donations, etc.,as advances of the legitime.
Vargas, Shaina Roselle S.
BS LM
San Beda University
o Art. 1061 speaks of “every compulsory heir”. Is the surviving
spouse included here?
o Ans. While is it true that the surviving spouse is a compulsory heir,
still she is not included here because in general, donations to her
during the marriage are null and void. (Art. 133) Therefore,
ownership over said donated property still pertains to the donor
(or his estate). On the other hand, moderate donations like
birthday or anniversary gifts are not to be computed at all in
determining the value of the estate.
o Donations given to future spouses (by the other) are considered
donations to strangers, for at said time, one is not yet the
compulsory heir of the other.
“Collation in Value” distinguished from Collation in Kind”
“Must bring into the mass of the estate”
Not necessarily mean that the thing itself which was donated must be
returned or collated.
Collation in Two Kinds: (a) collation in Value and (b) collation in kind. (the
latter usually occurs when the donee has for example no money with
which to reimburse in case the donation turns out to be totally inofficious.)
Note: Collation in kind is not, properly speaking, a Collation. It is really a
returning in kind in case the donation has to be totally reduced or revoked
because it is completely inofficious and the donee either has no money or
does not desire to reimburse in money.
Note: the same thing donated are not to be brought to collation and
partition, but only their value at the time of the donation, even though
their just value may not then have been assessed. Subsequent increase or
deterioration and even their total loss or destruction, be it accidental or
culpable, shall be for the benefit or account and risk of the donee.
Two kinds of donation:
What must be collated are those received by way of donation, or any other
gratuitous title.
1. The direct or ordinary donation
2. Indirect donation (debt which has been remitted; renunciation of
another inheritance by the deceased in favor of the compulsory
 heirs; sums paid by a parent in satisfaction of the debts of the
children; election expenses, fines)
Note: Proceeds in a life insurance policy are not collationable since for the
purpose of collation, they are not considered donations. Same for mutual
benefits contract which makes as beneficiary a compulsory heir on the
theory that any proceeds from such a contract belong exclusively to the
beneficiary.
Problem [see page 607]
Where disputes concerning collation are settled
Provisions of the civil code w/ reference to collation clearly contemplate
that disputes between heirs with respect to the obligation to collate may
be determined in the course of the administration proceedings.
Collation has 2 distinct concepts
1. Collation is a mere mathematical operation by the addition of the
value of donations made by the testator to the value of the
hereditary estate.
2. It is the returns to the hereditary estate of property disposed of
by lucrative title by the testator during his lifetime.
Case [See page 608]
Art. 1062: When compulsory heirs will not collate
Donations inter vivos to compulsory heirs are not to be collated (still
computed) but not charged to the legitime) in two cases. In these cases,
the donation shall be charged to the free portion
1. If the donor expressly provides (so that, preference, not equality,
was obtained) that is, the donor does not want the donation
charged to the legitime because he wants to give the donee the
property in addition to the latter’s legitime.
[See page 608 for example]
Note: a “preference” is allowed unless the legitime of the others
would be impaired
2. The donation should be charged not to the legitime but to the
free portion if the donee should repudiate the inheritance (Art.
1062) Reason: he waives his legitime, his right as compulsory heir;
therefore, he ceases to be one. He is stranger to the inheritance.
Vargas, Shaina Roselle S.
BS LM
San Beda University
But, of course, if such donation impairs the legitime of the
accepting compulsory heirs – said donation must be reduced.
Example [See page 609-610]
Note: although law says “collation shall not take place, if the donee should
repudiate the inheritance,” the donation must still be computed to find out
what the legitime is, and if found inofficious, it must be reduced.
Art. 1063: Testamentary Dispositions Generally will not be collated
Term “collation” here is rather misleading – because there is nothing to be
brought back to the estate inasmuch as it has not yet been given away.
“Not subject to collation” here means merely that the legacy or devise
should be imputed to the free portion and not to the legitime. The testator
can of course provide otherwise.
Example [See page 611]
Note: Had it been donation, no preference would have been intended and
the remainder would have been divided as follows 400k for A, 500k for B,
since in the case of donations, law presumes equality to the desire of the
testator.
Note:
Dispositions inter vivos (donations)
GR: Equality XPN: Preference
Dispositions Mortis causa
GR: Preference XPN: Equality
[Problems see page 611-612]
Remember: Legacy is not considered as an advance to the legitime
(preference)
When article will not apply
In case of distribution and partition of the entire estate by the testatrix
without her having made any previous donations during her lifetime which
would require collation to determine the legitime of each heir, no reason
to apply Arts. 1061, 1062, 1063. If only part of the estate had been given by
will, this would be different, for here, Art. 1063 may apply.
Art. 1064: Collation by Grandchildren
See examples for par. 1 and par.2 [page 613-614]
Additional Remarks about paragraph one
 1. Par. 1 gives an exception to the rule that only donees should
collate
2. Par. 1 applies only when the grandchild inherits by right of
representation, not when he inherits in his own right, for here the
reason for the law would cease.
3. Par. 1 although applying apparently only in the case of
predecease, applies also and for the same reason in both
incapacity and disinheritance.
Art. 1065: Donations to Grandchildren
[See example on page 615]
Reason: A should not collate for he himself had not received the donation
Art. 1066: Donations to spouse of child
o Donee is not a compulsory heir of the parents-in-law. Since
donations were not given to the child himself, he should not be
obliged to collate what he did not receive.
o “Non-collation” in this article does not mean that the value should
not be computed. It only means that although the value of the
donation should be computed (since all donations to strangers are
also computed or “collated”), its value should not be considered
as an advance of the legitime of the child himself.
o Exception is self-explanatory. The half share given to the child
should be considered an advance of his legitime.
Note: All donations whether given to strangers or to compulsory heirs,
should always be reduced if found inofficious. No person may give or
receive, by way of donation, more than he may give or receive by will.
Donation shall inofficious in all that it may exceed. This limitation.
Donations made to the strangers shall be charged to that part of the estate
of which the testator could have disposed by his last will. [Art. 909, par. 2]
Art. 1067: Expenses for support
Not subject to collation
Values are not added to the hereditary estate; they are not considered as
advances of the inheritance, whether as part of the legitime or part of the
free portion.
Reasons for the law: their cause are not generosity, but moral, social, and
legal obligations.
Almost physical impossibility of computing the value of these things, like
customary gifts.
“Education” – only up to high school
Vargas, Shaina Roselle S.
BS LM
San Beda University
Note: However, in Art. 290 both kinds of education are included in the
category of support
Support after death – allowances, during the liquidation of the estate are
not embraced under article 1067. Such allowances are advances of the
inheritance.
Art. 1068: Expenses for a career
This one deals with education after high school may even include graduate
courses in PH or abroad but not after the course is finished. As when a
father buys a hacienda for his son who has graduated with a degree in
agriculture. The hacienda is real donation, chargeable to the legitime.
Expenses in art. 1068 will not be considered as an advance of the legitime
but as an advance of the free portion.
However, if the parents so provide, said expenses will be considered as an
advance of the legitime.
In no case should the legitime be impaired
Expenses at home
Which would have been incurred had the child stayed at home with
parents should be deducted
Reason: His parents would have spent said amount for his support
Art. 1069: Other sums which should be collated
(a) To enable his son to win an election, a father spent 100k
[collationable] chargeable to the legitime because the expenses
are considered donation. This practice of certain parents often
works to the disadvantage of ither children whose legitimes may
be thus impaired.
(b) Meaning of debt – it must be valid and enforceable otherwise the
son is not benefitted in any way
(c) Problems see page 619
Art. 1070: Wedding Gifts
Although really donations, are not chargeable to the legitime in view of the
sentimental importance of a wedding. Nevertheless, they may be reduced
if they exceed (for each child) 1/10 of the free disposal. This is to prevent
abuse and extravagance.
[Example see page 620-621]
Gifts in cash or money
Wedding gifts must consists of jewelry, clothing, outfit

Vargas, Shaina Roselle S.

BS LM
San Beda University