Art. 960.
Legal or intestate succession takes place: Predeceased – heir dies before the testator and there is no other
(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 the suspensive condition attached to the
institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator,
or repudiates the inheritance, there being no
substitution, and no right of accretion takes
place;
(4) When the heir instituted is incapable of
succeeding, except in cases provided in this
Code.
Article 960 does not provide the definition of legal succession but
rather these are instances of legal succession.
It is called legal succession because it is in accordance with the law.
There is no will that will dictate how the succession will take place.
(1) If a person dies without a will, or with a void will, or one
which has subsequently lost its validity;
Note: There is no will here or that the will created was
subsequently declared void or revoked e.g failure to follow the
formalities. Any of these circumstances, legal or intestate
succession takes place.
(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;
Note: Emphasis on no institution of heirs in the estate.
A will that disposes some parts of the property and some are not
is called a mixed succession hence both governed by
testamentary and intestate succession.
If only the disinheritance is stated in the will it will be valid and
what will govern is intestate succession.
(3) If the suspensive condition attached to the institution of
heir does not happen or is not fulfilled, or if the heir dies
before
the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;
Suspensive condition – is where the institution of the heir is subject
to the fulfillment of the condition. If such condition does not happen
then there is no institution to be given effect.
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representative to succeed or no right of representation.
Repudiated – did not accept what was instituted in the will.
Follow: ISRAI
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code.
Note: If the instituted heir is incapacitated, the estate will be
distributed through intestate succession.
OTHER INSTANCES WHEN LEGAL OR INTESTATE
SUCCESSION TAKES PLACE: (PIFA)
1. Preterition- inadvertently omitting compulsory heirs from
the will, depriving him of his legitime.
2. Improper Disinheritance-
3. Fulfillment of a resolutory condition – fulfillment of which
will result to the extinguishment or recovery of the estate
from the person given through will.
4. Arrival of the resolutory period – will terminate the
inheritance.
TESTATE OF RIGOR VS RIGOR
The Civil Code recognizes that a person may die partly
testate and partly intestate, or that there may be mixed
succession. The old rule as to the indivisibility of the
testator's win is no longer valid. Thus, if a conditional
legacy does not take effect, there will be intestate
succession as to the property recovered by the said
legacy.
The administration over the rice lands was subject to a
condition that the church will only administer the land in
the interim period while there is still no male relative
taking priesthood or that when such male relative be
excommunicated. Since there was no relative who
became a priest, therefore that disposition became
inoperative.
The church was not instituted as an heir, but only to
administer the property. So, since there was no nearest
male relative who was studying priesthood, that portion
now became vacant, and legal succession would now be
applied.
As mentioned, what we have here is not really
“intestate”, but “legal succession” only as that portion
because there was that portion of the Will with regard to
other properties wherein devisees were named such as
the sibling of Father Rigor.
Note:
Legal or intestate succession are where dispositions are provided by Although, in legal succession there is no disinheritance because there
LAW hence, the heirs are called LEGAL HEIRS. The law presumes is no will there can still be legal heirs who can be EXCLUDED.
it based on the will or the presumed will of the testator. How?

In intestate succession it is important to prove the relationship with
the deceased.
FORCED
SUCCESSION
There is forced succession
pertaining to the legitime
regardless if the testator
consents to it or not.
These are compulsory
heirs to which their
legitime must be given to
the testator.
1. Express – that is disinherit; and
2. Implied – being a legal heir, he is not mentioned in the last will and
LEGAL/INTESTATE testament
SUCCESSION
Dispositions of the estate a. purely by will – he will not receive anything
in the absence of a will is
provided by law.
b. in mixed succession or intestate succession – he may receive
something depending on the rule on proximity or rule of preference
which will be discussed later on.
The disposition is based
If the legal heirs are NOT compulsory heirs. Testators are not
on the presumed will of required to give them anything pertaining to their estate because the
the testator. law provides who shall receive the estate first and who will not be
deprived of the inheritance.

To reiterate, to be considered as an heir, proof of filiation must be
presented. You can prove filiation by:
Jus Familiae - Relationship arising out of the family to which the heir
and testator belong.
Relatives in the 5th degree can inherit but they are the least priority. If
the compulsory heirs are not available, the 5 th degree relatives are
prioritized and if there are no 5 th degree relatives, the property will go
to the State.
Also remember these rules:

Jus Sanguini - Blood relationship between a parent and the child.
This is the most important source of right to inherit in legal or
intestate succession.
Jus Conugi - Relationship arising out of conjugal relationship or
marriage. The basic source of right of the spouses to inherit from
each other.
Jus Imperi- Under the legal or intestate succession, the State is also
an heir (as we discuss along the way.)
Art. 961. In default of testamentary heirs, the law vests
the inheritance, in accordance with the rules hereinafter
set forth, in the legitimate and illegitimate relatives of
the deceased, in the surviving spouse, and in the State.
When talking about relatives, we have the relatives in the direct line
who are the descending or ascending line and collateral line.
The direct line is preferred over the collateral line.
In the direct line, descending line is preferred over ascending line.
Preference of degree or those relatives closer in degree with regard to
relationship are entitled to inherit better than those who are farther in
degree. People who are closer is degree, however, are subject to one
exception–Right of Representation
Through representation, a person in the lower degree (Ex: child), is
raised to the category of the person to be represented (Ex: parent),
whether such person belongs to the first degree or second degree.

Who are considered as legal heirs? (There is NO ORDER OF Art. 962. In every inheritance, the relative nearest in
PREFERENCE) degree excludes the more distant ones, saving the right
of representation when it properly takes place.
 Legitimate children and descendants Illegitimate children
or descendants Relatives in the same degree shall inherit in equal
shares, subject to the provisions of article 1006 with
 In the absence of legitimate children, legitimate parents or respect to relatives of the full and half blood, and of
ascendants Article 987, paragraph 2, concerning division between
the paternal and maternal lines.
 Surviving spouse
RULE ON PROXIMITY: The nearer excludes the farther.
 The State (not compulsory heirs)
RULE OF EQUAL DIVISION:
 Brothers and sisters (legal heirs, but not compulsory heirs.)
GR: Relatives in the same degree shall inherit in equal share o (for
example, siblings)

2 |Page
XPNS:
uncle, who is the brother of his father, four from his first
(1) Article 1006 with respect to the relatives of full blood and cousin, and so forth.
half blood.

In legal succession, the full blood relatives are entitled to

twice as much as those of the half-blood relatives.
GREAT-GRANDPARENT

(2) Article 987 concerning the division between maternal

|
and paternal lines (rights);

GRANDPARENT
(3) (Application of the) Right of representation; and

|
(4) In legal succession and the same in testamentary
succession, illegitimate children only get ½ of the share of
one legitimate child. PARENT

Art. 963. Proximity of relationship is determined by the |

number of generations. Each generation forms a degree.
CHILD
Ex. One degree is father to son.
A. child to the great-grandparent: three degrees
Two degrees is son to grandfather

B. child to the grandparent: two degrees

ARTICLE 964. A series of degrees forms a line, which
may be either direct or collateral. A direct line is that
constituted by the series of degrees among ascendants C. child to the parent: one degree
and descendants. A collateral line is that constituted by
the series of degrees among persons who are not
Art. 967. Full blood relationship is that existing between
ascendants and descendants, but who come from a
persons who have the same father and the same mother.
common ancestor.

Half blood relationship is that existing between persons

A collateral line is that constituted by the series of degrees among
who have the same father, but not the same mother, or
persons who are not ascendants and descendants, but who come from
the same mother, but not the same father.
a common ancestor, such as siblings.

Art. 965. The direct line is either descending or

ascending.
Art. 968. If there are several relatives of the same
degree, and one or some of them are unwilling or
The former unites the head of the family with those who
incapacitated to succeed, his portion shall accrue to the
descend from him.
others of the same degree, save the right of
representation when it should take place.
The latter binds a person with those from whom he
descends.
These are heirs who are who are unwilling or incapacitated. Their
shares will then accrue to the other siblings except if there is right of
representation (child will represent the sibling)

Art. 966. In the line, as many degrees are counted as

there are generations or persons, excluding the
progenitor.

In the direct line, ascent is made to the common

ancestor. Thus, the child is one degree removed from the
parent, two from the grandfather, and three from the
great-grandparent.

In the collateral line, ascent is made to the common

ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is
two degrees removed from his brother, three from his Scenario:

3 |Page
If Juan is incapacitated he will now be represented by his children
Arvin and Ryan. If for example, the NHE of the decedent is 1M, if it
will be distributed among these heirs, Juan and Pedro. There is no
LWT here. It will be divided equally between them at 500k each for
Juan and Pedro. But since Juan is incapacitated, he will now be
represented by his children Arvin and Ryan and they will get 250K
each, while Pedro gets 500k. Don of course will not get any share as
he is excluded. We have Pedro who is the nearer heir to the decedent.
If Juan renounces or repudiates (this is different from incapacity)
his share it will accrue to Pedro. The right of representation shall not
apply, because one of the basic principles in the right of
representation is that an heir who repudiates cannot be represented.
Thus, Juan cannot be represented by Arvin and Ryan.
A person who repudiates an inheritance cannot be represented. The
right of representation, as we will discuss in the subsequent articles,
obtains only in case of predecease, incapacity or disinheritance.
When the right exists, it shall take preference to the right of accretion.
Accretion takes place in testate or intestate succession as regards only
the free portion. And when the requisites for accretion are present. In
case of predecease, accretion does not take place.
Art. 969. If the inheritance should be repudiated by the
nearest relative, should there be one only, or by all the
nearest relatives called by law to succeed, should there
be several, those of the following degree shall inherit in
their own right and cannot represent the person or
persons repudiating the inheritance.
This provision only refers to repudiation. It does not apply in cases of
incapacity, predecease or disinheritance.
The respective children will inherit in their own right. It is no longer
by virtue of right of representation. Based from the example above if
Juan and Pedro will repudiate their share, their children will inherit in
their own right so that 1M estate will be divided among them.
Divided by 3.
Remember, we discussed before per capita, and per stirpes – in this
case wherein Juan and Pedro repudiated their share. Their children
inheriting in their own right, meaning, equal sharing, they will inherit
per capita.
NOTE:
• In their own right = per capita
• In their representation = per stirpes
REPRESENTATION
Art. 970. Representation is a right created by fiction of
law, by virtue of which the representative is raised to the
place and the degree of the person represented, and
acquires the rights which the latter would have if he
were living or if he could have inherited.
Representation takes place either testate or intestate succession but
they are applied in different ways.
4 |Page
The representative is raised to the place and degree of the person
represented and acquires the rights which the latter would have if he
were living or he could have inherited.
When can the right of representation apply?
1. In vacancies caused by predecease, incapacity, or disinheritance.
a. Predecease – the heir dies ahead of the decedent.
b. Incapacity – the heir is disqualified to inherit under the law
c. Disinheritance – the heir is validly disinherited but, he can still be
represented.
2. In testamentary succession, the right of representation applies only
to legitimes.
In legal or intestate succession, right of representation is applied to
the entire estate because there is no more free portion.
In disinheritance, it applies only to testate succession because there is
a requirement that there should be a will.
In testate succession, representation is only as to the legitime it only
covers all that the person being represented would have inherited.,
free portion is not included. But in legal succession, the right of
representation covers all that the person being represented would
have inherited.
In adoption, there is only a relationship between the adopter and the
adoptee. However, the adoptee cannot represent the adopter. While
the adoptee can inherit from the adopter, the adoptee cannot represent
the adopter. Neither can the adopted child be represented.
NOTE: The right of representation covers not only the properties, but
also the transmissible rights and obligations.
Art. 971. The representative is called to the succession
by the law and not by the person represented.
The representative does not succeed the person
represented but the one whom the person represented
would have succeeded.
To reiterate, the representative does not inherit from the person
represented but from the person from whom the one represented
would have inherited.
Exceptions: 902 & 908
INTESTATE ESTATE OF ROSALES VS ROSALES
Irenea Rosales insisted in getting a share of the estate in
her capacity as the surviving spouse of the late Carterio
Rosales, son of the deceased, claiming that she is a
compulsory heir of her mother-in-law together with her
son, Macikequerox.
There is no provision in the Civil Code which states that
a widow (surviving spouse) is an intestate heir of her
motherin-law. The entire Code is devoid of any
provision which entitles her to inherit from her mother-
in- law either by her own right or by the right of
representation.
Indeed, the surviving spouse is considered a third person
 as regards the estate of the parent-in-law. representatives shall not inherit more than what the
person they represent would inherit, if he were living or
Article 971 explicitly declares that Macikequerox could inherit.
Rosales is called to succession by law because of his
blood relationship. He does not succeed his father,
Carterio Rosales (the person represented) who
predeceased his grandmother, Petra Rosales, but the
latter whom his father would have succeeded. Petitioner
cannot assert the same right of representation as she has
no filiation by blood with her mother-in-law.

iRght of her husband was extinguished by his death that

is why it is their son Macikequerox Rosales who
succeeded from Petra Rosales by right of representation.
He did not succeed from his deceased father, Carterio
Rosales.
A surviving spouse is not an intestate heir of his or her
parent-in-law.
STIRPES - Inheritance by all those within the group inheriting in
equal share.
Scenario: Juan predeceased the decedent, then he will be represented
by his children Arvin and Ryan. The representative step into the shoes
of Juan, the person being represented. That also means that they
cannot inherit more than the person represented would have inherited.

MACIKEQUEROX does not succeed his father, Carterio Rosales (the
person represented) who predeceased his grandmother, Petra Rosales,
but Petra whom his father would have succeeded. The mother here,
Irenea, cannot assert the same right of representation as she has no
filiation by blood with her mother-in-law.
Art. 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. But if they alone survive, they shall
inherit in equal portions.

Art. 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.
Scenario:
In the collateral line, the right of representation takes place only in
favor of the children of brothers and sisters. Meaning, nephews and
Juan, Decedent, and Pedro were siblings.
nieces. (grandnephews and grandnieces are not included)
If Juan predeceased his brother, Juan can be represented by his
Right of representation never takes place in the ascending line. It only
children - Ryan and Arvin, who were the nephews of the decedent.
takes place in the descending line. The right of representation always
The inheritance of Ryan and Arvin are by virtue of per stirpes.
goes down. If you look for a representative, go down.
Examples of stirpes: If the estate is worth P1,000,000, divided by 2
for Juan and Pedro – 500,000 each. So, Ryan and Arvin will get
250,000 each. Don will not get anything because Pedro is still alive.
But if Juan and Pedro predeceased the decedent. Upon his death, he
is survived by his nephews – Ryan, Arvin and Don, they will now
inherit in EQUAL shares, per capita.
That is now 1,000,000 divided by 3 as compared to the previous one
which was per stirpes. Take note of this one because this is VERY
SPECIFIC to nephews and nieces with regard to the children of 1 or
more brothers or sisters of the deceased survived.

Grand nephews and nieces like Don, cannot represent. ONLY UP TO

THE CHILDREN OF BROTHERS AND SISTERS.

Art. 973. In order that representation may take place, it

is necessary that the representative himself be capable of
succeeding the decedent

The representative must have the capacity to succeed from the

decedent.
Art. 974. Whenever there is succession by
representation, the division of the estate shall be made
per stirpes, in such manner that the representative or

5 |Page
 BICOMONG VS ALMANSA
In the absence of descendants, ascendants, illegitimate
children, or a surviving spouse, Article 1003 of the New
Civil Code provides that collateral relatives shall
succeed to the entire estate of the deceased. It appearing
that Maura Bagsic died intestate without an issue, and
her husband and all her ascendants had died ahead of
her, she is succeeded by the surviving collateral
relatives, namely the daughter of her sister of full blood
and the ten (10) children of her brother and two (2)
sisters of half blood, in accordance with the provision of
Art. 975 of the New Civil Code. By virtue of the latter
provision, the nephews and nieces are entitled to inherit
in their own right.
AbellanaBacayo vs. Ferraris-Borromeo
"nephews and nieces alone do not inherit by right of
representation (that is per stirpes) unless concurring with
brothers or sisters of the deceased."
Article 975 makes no qualification as to whether the
nephews or nieces are on the maternal or paternal line
and without preference as to whether their relationship
to the deceased is by whole or half blood, the sole niece
of whole blood of the deceased does not exclude the ten
nephews and nieces of half blood.
concurring brothers or sisters of the deceased, inheriting together
with the nephews and nieces by virtue of the right of representation,
so, they will inherit per stirpes.
Art. 976. A person may represent him whose inheritance
he has renounced.
Art. 977. Heirs who repudiate their share may not be
represented.
In this not deprived of their right
case, the of representation. They
decedent should not suffer from the
no circumstances out of their
longer control.
had any
brothers ORDER OF INTESTATE SUCCESSION
or
sisters. If ARTICLE 978. Succession pertains, in the first place, to the
there are descending direct line.
Rule on Proximity: Nearer relatives exclude those who are farther.
The direct line are preferred over the person in the collateral line and
that those in the descending are preferred over those who are in the
ascending line.
ARTICLE 979. Legitimate children and their descendants succeed
the parents and other ascendants, without distinction as to sex or
age, and even if they should come from different marriages. An
adopted child succeeds to the property of the adopting parents in
the same manner as a legitimate child.
A. Legitimate children include those children who are legitimated.
 Legitimated meaning at the time they were born, their
parents are not yet married, but subsequently, they got
married.
 Legitimate children including legitimated children inherit
equally (per capita) without distinction.
B. Adopted children
 Have the same successional rights as a legitimate child (it is
like he is a legitimate child).
 Does not have the right of representation. Hence, the
adopted cannot represent the adopter, because the
relationship created was between only the adopted and
adopted and not the parents of the adopter.
 The adopted is deemed to be a legitimate child of the
adopters, and both the adopter and the adopted acquired the
reciprocal rights and obligations arising from a relationship
of a parent and child.
 An adopted child remains an intestate heir of his parent and
other blood relatives.

ARTICLE 980. The children of the deceased shall always inherit

from him in their own right, dividing the inheritance in equal
shares.

Pertaining to the estate of the decedent, if Pedro predeceased the The only remaining heirs are the children and they will divide the
decedent, Don can represent Pedro in the estate of the Decedent even inheritance in equal shares.
if Don repudiates his share in the estate of Pedro. In the first scenario,
Don is a representative of the decedent. This is okay. But if Don Legitimate children of decedent will inherit per capita.
would repudiate his inheritance from Pedro, that’s another thing. The
effect of that is his son cannot represent Don in the estate of Pedro. If there are grandchildren who will represent their predeceased
An heir who repudiates, Don, may still represent the person, Pedro, parents, they will inherit per stirpes.
whose inheritance he repudiated. But an heir who repudiates cannot
be represented by his children. Children from different marriages but having the same parent is
treated us such under Art 979.
Repudiation Disinheritance or
Incapacity ARTICLE 981. Should children of the deceased and descendants
Voluntary act Involuntary act of other children who are dead, survive, the former shall inherit in
Effect: Heirs who Effect: Children of the their own right, and the latter by right of representation.
repudiate their share may incapacitated or
not be represented disinherited persons are

6 |Page
The decedent of a predeceased heir shall inherit by virtue of right of
representation while the remaining heir inherits in his own right.
If Juan predeceased the decedent, then, who are deemed as the
surviving heirs?
A: Pedro, and Alvin and Geno.
Alvin and Geno inherit by virtue of right of representation
because Juan predeceased his father, while Pedro inherits in his own
right.
Since Pedro is still alive, Aronie cannot claim anything because the
nearer relative excludes the far
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
This talks about grandchildren here inherit by right of representation.
Inherit by representation – Parent of the grandchild predeceased the
decedent.
Inherit by right- All children of the deceased are dead.
Computation: the inheritance will be distributed ½ per deceased heir.
Rule 1: If both Juan and Pedro predeceased the decedent, the
grandchildren inherits by right of representation, provided that the
representation is proper.
(1M. = 500K predeceased A& B. 500k will be divided per children of
the predeceased)
Rule 2: If the children of the predeceased repudiated their shares
there is no right of representation but only inherit in their own right
per capita (all the children of the deceased repudiated the inheritance)
(1M = will be each divided equally by how many children there are
present)
***Correlate with Art. 975
ARTICLE 983. If illegitimate children survive with legitimate
children, the shares of the former shall be in the proportions
prescribed by Article 895.
In intestate succession
An illegitimate child gets ½ of what the legitimate child will receive
in the entire estate in intestate succession because there is no free
portion.
7 |Page
Ex. If there are 2 children of the decedent, applying Art. 983, in
connection to Art. 895, the share of illegitimate child is ½ of the share
of 1 legitimate child.
You have to consider the number of children (legitimate or
illegitimate). It is more or less the same formula, but if even there are,
for example, 6 illegitimate children, the share of a legitimate child
should be times two the share of an illegitimate child.
In testate succession always respect the legitime.
So divide the estate in half and what is the ½ of the legitime of the
legitimate child, ½ of that is for the illegitimate child because there
has to be free portion.
Article 984. In case of the death of an adopted child, leaving no
children or descendants, his parents and relatives by consanguinity
and not by adoption, shall be his legal heirs.
Art. 984 superseded by Art. 190 of the Family Code
“(2) When the parents, legitimate or illegitimate, or the legitimate
ascendants of the adopted concur with the adopter, they shall divide
the entire estate, one-half to be inherited by the parents or
ascendants and the other half, by the adopters;”
a. When an adopted child dies, both adoptive and natural
parents will inherit from him.
Computation:
 ½ to be inherited by the parents and ascendants by
blood of the adopted deceased; and
 ½ to be inherited by the adopters
Estate of the Adopted
Adopter
Natural parents of adopted
b. Surviving spouse OR illegitimate child CONCUR with the
adopter
Computation:
 ½ to be inherited by the surviving spouse OR
illegitimate children; and
 ½ to be inherited by the adopters.
Estate of the Adopted
Surviving / Illegitimate
Adopted
c. Surviving spouse AND illegitimate children CONCUR
with the adopter. The estate will be divided equally.
 Estate of the Adopted
Surviving spouse Illegitimate children
3rd Qtr
ASCENDING DIRECT LINE
Article 985. In default of legitimate children and descendants of
the deceased, his parents and ascendants shall inherit from him, to
the exclusion of collateral relatives.
 Parents and ascendants, in the ascending direct line, are
second in order of intestate succession, the first being
legitimate children and descendants.
 If there are no legitimate children and descendants, then
parents and ascendants inherit from the decedent.
 The parents inherit the entire estate in the absence of
relatives in the descending direct line, to the exclusion of
collateral relatives.
 Brothers and sisters do not inherit with the parents and
ascendants BUT the surviving spouse does, it can inherit
with the parents and ascendants
 Parents exclude other ascendants, applying the principle
that the nearer relatives exclude the farther relatives.
 There is no right of representation in the ascending direct
line, unlike in the descending line, where there is right of
representation.
The share of the parents depends on the number surviving parents. If
you only have 1 parent, he/she inherits the entire estate. We do not
anymore talk about the legitimes anymore because he/she is the only
one left.
The presence of children, whether legitimate or illegitimate, will
exclude the collateral relatives, but with regard to the illegitimate
children, they can inherit together with the parents and ascendants.
Article 986. The father and 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.
In intestate succession if both parents are alive their shares are ½ each
of the entire estate.
Only 1 parent survived he will get the entire estate. There is no right
of representation in the ascending line.
Article 987. In default of the father and mother, the ascendants
nearest in degree shall inherit. Should there be more than one of
equal degree belonging to the same line, they shall divide the
inheritance per capita; should they be of different lines but of
equal degree, onehalf shall go to the paternal and the other half to
the maternal ascendants. In each line the division shall be made
per capita.
If the mother and father died, the estate will be divided between the
grandparents in 2 separate shares for the paternal and maternal side in
the ascending line.
8 |Page
ILLEGITIMATE CHILDREN
Article 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the entire
estate of the deceased.
 If there are no other legitimate descendants, surviving
spouse and legitimate ascendants, then the
ILLEGITIMATE CHILD WILL INHERIT ALL.
 If there are legitimate descendants or ascendants then the
illegitimate child will concur with either of them.
 However, legitimate descendants and ascendants will never
concur with each other because legitimate descendants are
prioritized.
Article 989. If, together with illegitimate children, there should
survive descendants of another illegitimate child who is dead, the
former shall succeed in their own right and the latter by right of
representation.
The deceased illegitimate child, can be represented by either his
legitimate or illegitimate children, inheriting by right of
representation.
Scenario: Juan, who is an illegitimate, and Pedro, who is legitimate.
They will both inherit. Assuming that Juan will predecease the
decedent, he can be represented by his children, both illegitimate and
legitimate.
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.
An illegitimate child has successional rights, and if he dies, he can
transmit his rights upon his death to his descendants.
There is no distinction between legitimate or illegitimate descendants
of the illegitimate child.
Exception: Repudiation of the inheritance.
Article 991. If legitimate ascendants are left, the illegitimate
children shall divide the inheritance with them, taking one-half of
the estate, whatever be the number of the ascendants or of the
illegitimate children.
 Legitimate parents or ascendants survive with illegitimate
children.
 When there are legitimate children, the legitimate
ascendants will be excluded.
 The estate will be divided into HALF.
-IMPORTANT PROVISION-
Article 992. An illegitimate child has no right to inherit ab
intestato from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child
Principle of Absolute Separation/ Iron-Clad Barrier/ Iron Bar
Rule
Illegitimate children cannot inherit through intestate succession from
the legitimate children and legitimate relatives of his father or mother.
The said legitimate children and relatives ALSO cannot inherit from
the illegitimate children.
 Illegitimate child has no right to inherit from the legitimate
family of his parents. So even if they are half-brothers, the
illegitimate child cannot inherit.
A predeceased legitimate child of the decedent cannot be represented
by the illegitimate child only his legitimate child.
If the illegitimate child predeceased the decedent, the predeceased
illegitimate child can be represented by the legitimate or
illegitimate children.
Differentiate ART 992, 902 and 998
DIAZ VS CA
The estate discussed here was with regard to the estate of the
mother of Pablo who is Simona and Pablo the son predeceased his
mother. Pablo had one legitimate child Felisa and 6 illegitimate
children. The Supreme Court in this case stated that by virtue of
Art. 992, these illegitimate children are barred from inheriting
from the estate of Simona. They cannot represent Pablo in the
estate of Simona and by reason of that, Felisa becomes the sole
legitimate heir to the intestate/ testate of Simona, since Pablo
already predeceased his mother, and the illegitimate children of
Pablo are barred from inheriting from the estate of Pablo’s mother.
The determining factor is the legitimacy or illegitimacy of the
person to be represented. If the person to be represented is an
illegitimate child, then his descendants, whether legitimate or
illegitimate, may represent him; however, if the person to be
represented is legitimate, his illegitimate descendants cannot
represent him because the law provides that only his legitimate
descendants may exercise the right of representation by reason of
the barrier imposed in Article 992.
As provided under Art. 992 , Alvin who can represent Juan in the
estate of the decedent. Geno cannot represent. But with Pedro who
is an illegitimate predeceases the decedent, he can be represented
by either Aronie or Ted
General rule: Can illegitimate children inherit from their
grandparents? NO.
9 |Page
Take away: if the person to be represented is an illegitimate child,
then his descendants, whether legitimate or illegitimate, may
represent him. However, if that person is legitimate, his illegitimate
descendants cannot represent him because the law provides that only
his legitimate descendants may exercise the right of representation by
reason of the barrier imposed in Art. 992.
PASCUAL VS PASCUAL BAUTISTA
Illegitimate children cannot represent their father in intestate
succession of the full-blooded brother of their father.
Illegitimate children are also both spurious and natural child.
DELA MERCED VS DELA MERCED
In this case, Article 992 of the New Civil Code is not applicable
because involved here is not a situation where an illegitimate child
would inherit ab intestato from a legitimate sister of his father,
which is prohibited by the aforesaid provision of law.
Rather, it is a scenario where an illegitimate child inherits from his
father, the latter's share in or portion of, what the latter already
inherited from the deceased sister, Evarista.
Since Evarista died ahead of her brother Francisco, the latter
inherited a portion of the estate of the former as one of her heirs.
Subsequently, when Francisco died, his heirs, namely: his spouse,
legitimate children, and the private respondent, Joselito, an
illegitimate child, inherited his (Francisco's) share in the estate of
Evarista.
It bears stressing that Joselito does not claim to be an heir of
Evarista by right of representation but participates in his own
right, as an heir of the late Francisco, in the latter's share (or
portion thereof) in the estate of Evarista.
AQUINO VS AQUINO
Article 993. If an illegitimate child should die without issue, either
legitimate or illegitimate, his father or mother shall succeed to his
entire estate; and if the child's filiation is duly proved as to both
parents, who are both living, they shall inherit from him share and
share alike.
If the only survivors of the illegitimate child are his parents, the
parents succeed to the entire estate, half and half.
If the parents are illegitimate they will only inhert in default of
legitimate children and legitimate descendants and illegitimate
children and their legitimate descendants whether legitimate or
not.
Article 994. In default of the father or mother, an illegitimate child
shall be succeeded by his or her surviving spouse who shall be
entitled to the entire estate. If the widow or widower should
survive with brothers and sisters, nephews, and nieces, she or he
shall inherit one-half of the estate, and the latter the other half.
 1. If the only survivor is the spouse of the illegitimate
decedent, the surviving spouse will inherit all.
2. If the spouse survived with the siblings and nephews and
nieces of the illegitimate decedent they will receive half
and half of the estate.
ARTICLE 995. – In the absence of legitimate descendants and
ascendants, and illegitimate children and their descendants,
whether legitimate or illegitimate, the surviving spouse shall
inherit the entire estate, without prejudice to the rights of brothers
and sisters, nephews and nieces, should there be any, under article
1001.
In intestate succession, if the surviving spouse is the only heir, the
entire estate will be given to the spouse.
This is different from testate succession because the surviving spouse
will only receive 1/3 if the marriage is solemnized in aritculo mortis
and the testator died within 3 months from the time of marriage.
HEIRS OF SANDEJAS VS LINA
Conjugal property with the deceased is ½ with the surviving spouse
and the other half will be divided by the remaining heirs including the
surviving spouse.
CALISTERIO VS CALISTERIO
Upon the death of the deceased spouse, the surviving spouse will
inherit half of the conjugal property and the other half will be
recevied by the heirs of the decedent if there are any including the
surviving spouse.
The 2nd marriage was declared valid due to the absence of the
husband in the first marriage for 11 years.
Art. 996 (differentiate with testate succession)
In intestate succsession if the surviving spouse concurs with a
legitimate children, they will each have half and half of the estate.
If the surviving spouse concurs with 2 or more legitimate children,
the surviving spouse gets the same share as that of each of the
children, the share will be equally divided among them.
Art. 997
Survivign spouse concur with legitimate parents or ascendants hence
they will receive half and half.
Art 998
Surviving spouse concur with illegitimate children half and half
share.
Art. 999
X= is the proportion of the share of each heir
2X= ½ of the estate per legitimate child. (multiply with the number
of legitimate child present)
2X= share of the surviving spouse the same with the legitimate child.
(multiply with the number of surviving spouse present)
1X= illegitimate child. multiply with the number of illegitimate child
present)
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Let x= 1 Illegitimate Child 2x= Legitimate Child 2x= Spouse
Net Hereditary Estate: P 1,400,000 Heirs: 2 Legitimate Children (2 *
2x) = 4x
Surviving Spouse = 2x 8 Illegitimate Children (8*x) = 8x 14x
Net Hereditary Estate 14x
= P 1,400,000 14x
Legitimate Children: ½ of the estate = 700,000 / 2 = each 2 Spouse =
P350,000
P350,000
Illegitimate Children: P 1,400,000 - 700,000 - 350,000= P350,000
8 Illegitimate Children= P350,000/8 =
P43,750 each.
Remember: Do not forget even if there is legal succession, the shares
of the legitimate child SHOULD NEVER GO BEYOND their share
in testamentary succession.
Despite of Art 999, each legitimate child should still be entitled to
their legitime. Dapat di mag lower thatn what they could receive in
their legitime.
SCENARIO: THE COMPUTATION IN THE LEGAL
SUCCESSION IS LESS THAN THE LEGITIME OF THE
LEGITIMATE CHILD IN TESTATE SUCCESSION.
Rules:
1. Respect the legitime of the legitimate children which is the
amount they are entitled to in testamentary succession.
Surviving spouse receive the same share with the legitimate
child.
2. Add first the amount of the legitime that is given to the
legitiamte child concurring with the surving spouse.
3. Divide the remainding amount among the number of
illegitmate children.
Let x= 1 Illegitimate Child 2x= Legitimate Child 2x= Spouse
Net Hereditary Estate: P 1,400,000 Heirs: 2 Legitimate Children (2 *
2x) = 4x
Surviving Spouse = 2x
8 Illegitimate Children (8*x) = 8x 14x
Net Hereditary Estate 14x
x= P 100,000
= P 1,400,000 14x
Answer (100,000) = 8 Illegitimate Child 2 (100,000) = Legitimate
Child 2 (100,000) = Legitimate Child 2 (100,000) = Spouse TOTAL
::::
 Only collateral relatives in the 5th degree of consanguinity only are to
P 100,000 each succeed the entire estate if tehre are not descendant, ascendants,
illegitimate children or a surviving spouse.
P 200,000
Right of representation only extends to the nephews and nieces.
P 200,000
Art. 1004
P 200,000
Only survivors are brothers and sisteres, they shall inherit in equal
P 1,400,000 shares.

Art. 1000 Art. 1005

Legitimate ascendants, surviving spouse and illegitimate children Siblings survive together with their children of the full blood. The
concur with each other in intestate succession. siblings shall inherit per capita and the children per stirpes.

Computation: Inheritance is only limited until the 5th consanguinity, hence, the
children of the nephews and nieces can no longer inherit in intestate
Legitimate parents = ½ succession.
Illegitimate children = ¼
Surviving spouse= ¼ Art. 1006

Full blood and half blood concur with each other.

In testamentary succession: the maind difference is that the share of Full blooded will have twice as much the half-blooded.
the surviving spouse will be taken from the free portion.
Compare to testamentary succession: either siblings will inherit
Legitimate parents = ½ equally unless there are specific portions granted.
Illegitimate children = ¼
Surviving spouse = 1/8 Art. 1007

Art. 1001 Half blooded siblings either in the mother or father side shall inherit
equally.
Surviving spouse concur with siblings. Their share is half and half.
If there are siblings who predecease the decedent, the niece and Art. 1008
nephews will wil represent.
Siblings do not concur with illegitimate children. There is right of representation among the children of the haf-blood
siblings and will receive per capita or per stirpes.
Art. 1002
Art.1009
Opposite with disinheritance.
If the guilty spouse is the survivor he or she will not receive anything. Decendant had not siblings, no nieces or nephews and no compulsory
Innocent spouse is the survivor they are entitled. heirs.
It is rquired that there is a decree of legal seperation if there is non the
guilty spouse can still inherit evne if the guilty spouse gave the cause The collateral relaitves can inherit but only up to the 5th
of the legal sepration. consanguinity.

Rules on the surviving spouse: Art. 1010

1. There must be a legal marriage between the surviving Intestate succession shall not extend beyond the 5th degree
spouse and decedent. consanguinity.
2. Surviving spouse must not be the guilty party.
3. There has to be a decree of legal separation, if none there is
no disqualification but can be disinherited. Art. 1011
4. If there is reconciliation prior to the death of the decedent,
even if there is a decree of legal seperation, survivign Escheat proceedings by virtue of the Regalian Doctrine.
spouse will still be qualified.
5. No similar rule on death articulo mortis in intestate The right of the estate to take the property who died intestate without
succession. having any compulsory heirs, collateral relatives, no relatives in the
6. Surviving spouse concurs with 1 legitimate childa and direct line etc. is a FIDUCIARY RIGHT of the state.
illegitimate child, ½ to the LC and 1/2 ILC and the spouse
will receive ¼. An escheat proceeding is a judicial proceedings where the state by
virtue of its sovereignty steps in and claims the real or personal
Art. 1003 property of a person who dies intestate leaving her no heir.

Art. 1013

11 |Page
After the escheat proceedings the personal properties are assigned to
the municipality or city where the deceased last resided while the real
property where it is situated.
If the decease never resided in the Phil it shall be assigned where it is
located.
The estate shall be for the benefit of the public schools, charitable
institutions and center.
Before the properites are distributed after escheat proceedings, the
debts and obligations must be satsified first.
Art. 1014
After escheat proceedings, if there is a person who is legally entitled
to the estae may file a claim within 5 years from the date of the
property was delivered to the state. If claim is proven he will be
given the legal possession of the property.
If the property is already sold, the municipality or city shall be
accountabel to him for such part of the proceeds that have not been
lawfully spent.
RIGHT OF ACCRETION
Art. 1015
When 2 or more persons are called to the same inheritance, devise or
legacy and there is some who renounced or cannot receive their
share, the said share becomes vacant.
The vacant share shall acrrue to the co-heirs upon succession.
Accretion is applicable to both testate and intestate succession but
depends when to apply accretion.
In testate succssion, there is accretion in the FREE PORTION only.
Requisites under Art 1016
1. 2 or more persons be called to the same inheritance or same
portion, pro indiviso
2. One of the persons called die before the testator
(predeceased) , renounce, or incapacitate to receive the
inheritance.
In intestate succession accretion is proper in the whole estate.
Remember the orde of who will the estate go to: ISRAI.
Requisites for accretion:
1. There is unity of object- though designating an aliqout
part , it still cannot be identified by description that will
make each heir th exclusive owner of the determinate
property, there is still accretion. there is only 1 specific
property.
2. Plurality of subject – there are atleast 2 heirs to the same
inheritance, devise or legacy.
3. Vacant portion – an heir cannot receive the share by virute
of repudiation or incapacity, predceased the testator
resulting to vacant portion.
4. Acceptance – the other heir must accept the inheritance. If
not it will be part of the intestate succession.
5. Equality of degree- accrues to the same degree among the
co-heirs.
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6. Pro indiviso right - no special designation of specific share.
Art. 1017
If the last will and testament designates “1/2 for each” or “in equal
shares” there is still no designation of specific share , they remain co-
owners.
You cannot specifically point out where the share of the insittued heir
is.
When talking about money or fungible goods, as long as it is not
earmarked, there is right of accretion.
If earmarked, there is no right of accretion. Because there is no unity
of object and legatees are not called to the same inheritance.
Take note: if specifically fraction lang ang pag designate, it is not
earmarked or there is still accretion.
Art. 1018
An heir who repudiates their inheritance in intestate succesion or
legal succession shall accrue to the co-heirs.
Repudiation in intestate succssion can give rise to accretion why?
Because there are some vacancies which cannot give rise to accretion.
E.g Disinheritance. For the reason that , the testator did not call the
disinherited heir to succeed or not even made to succeed then there is
nothing for the others to acquire by right of accretion.
Art. 1019
If the are several heirs who have the right of accretion, the share will
be proportionately shared.
Art. 1020
General rule: To whom the shares will accrue shall succeed to the
same rigths and obligations imposed who could not receive his share.
Exception: testator expressly provided that the heirs will not subject
to the same rights and obligations or the rights and obligations are
personalt to the heir.
Art. 1021
In testate succession, right of accretion only takes place with respect
to the free portion because there is no accretion with respect to the
legitime.
If the legitime is repudiated, there is no accretion but the co-heirs
shall succeed in their own right.
Rules:
1. There is always the legitime and free portion.
2. The legitime is ½ to the net hereditary estate and the other
half is the free portion.
3. The heirs will equally inherit from the legitime and equally
inherit from the free portion.
4. The effect of repudiation covers the shares in the legitime.
Hence, legitime cannot be succeeded by the decedent of the
repudiating heir.
In intestate succession:

If all of the heirs predeceased, became incapacitated or repudiated
their shares, their shares will be given to the decendants of those who
are predeceased and incapacitated except for those who repudiated
because there is no representation when it comes to repudiation.
The shares of the repudiating heir will go to the decendants of the
other heirs and shall inherit per stirpes.
If all of the heirs repudiated, then the shares will be inherited by the
decedents per capita (Equally distributed to all decedents)
In intestate succession, a decendant of a repudiating heir cannot
receive by virtue of representation but only of her own right.
Art. 1022
In testate succession if there are no other heirs who will inherit using
the order of priority : ISRA then the vacant portion shall be passed to
the legal heirs by intestacy.
SUMMARY:
When can accretion happen?
1. If an heir predeceased =, accretion can happen only
pertaining to the free portion.
2. Incapacity- vacant shares will go to the other heirs by
accretion but subject to the right of representation.
In incapacity, in one of the heirs predeceased the decedent,
his share can accrue to the others. However, if the
predeceased heir has a representative, then his share will
not accrue to the others as it will go to the representative.
If predeceased there is no accretion as the share of the
predeceased heir, if they have no representative, will go to
the other heirs by their own right. Even though the effect
will be the same if there is accretion, the share will go to
the other heirs not by accretion but by their own right.
3. Repudiation- vacant shares always accrues to the other
heirs provided all the requisites for accretion are present.
4. Non-fulfillment of suspensive condition.
5. Failure to identify an heir.
CAPACITY TO SUCCEED BY WILL OF BY INTESTACY
Art. 1024
Capacity to succeed – ability of one to inherit and retain property
obtained. It is goverbed by the law of the nation or the national law of
the decedent.
The ability to inherit and retain property mortis causa.
Capacity to act – differs with its legal effect. But even if you do not
have the capacity to act, you still have the capacity to succeed in
relation to Art. 40 & 41.
Ex. Natural or juridical persons.
Incapacity – heir is disqualified to receive or inherit from the
decedent. Disinheritance is not needed because that person is already
incapacitated by law.
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In testate succession: Natural and juridical persona can inherit as long
as the latter if a corporation have their own charter proved by a
certification of incorporation recognizing its juridical existence.
In intestate succession: only natural persons can succeed. These
natural persons should attain juridical capacity meaning having legal
personality.
Art. 1025
The heir must be living or atleast conceived at the time of the death
of the decedent.
Testate estate of Rigor vs Belina Rigor
To be capacitated to inherit, the person must be living at the moment
the succession opens , except in cases of representation.
If the bequest was inoeprative it shall be merged into the estate.
Art. 1026
2 kind of incapacity to inherit:
1. Absolute incapacity – cannot inherit from anybody under
any circumstance. Cannot receive at all.
Who are considered as absolutely incapacitated to
succeed?
a. Unborn persons
b. Associations & Corporation not authorized
by law or by their charter from succeeding.
c. Those lacking juridical personality.
2. Relative incapacity- cannot inherit from certain persons or
who cannot inherit certain properties but can only inherit
certain properties under certain circumstances.
Testamentary succession can institute natural and juridical persons.
For the latter, it is valid as long they have a juridical personality and
they are allowed by law or its charter.
Art. 1027 Who are incapable of succeeding?
These are persons who are disqualified by reason of undue influence.
There is already conclusive presumption hence, you cannot present
evidence that you did not provide undue influence.
Note: These provisions are applicable to both testamentary and
intestate succession.
Article 1027 is applicable only to testamentary succession because
this is in connection to the execution of a last will and testament and
not to legal succession because in legal succession, again, there is no
last will and testament.
In legal succession, you are allowed to inherit because it is the law
which provides that you are a legal heir, and you are allowed to
inherit from the decedent. So, you cannot say that there is undue
influence because ang basis is the law itself.
A. PRIEST AND MINISTERS
 1. There might be undue influence by the priest or minister F.
during the confession or last illness.
2. The illness being referred here, there must be a possibility If the individual, associations and corporations are not permitted by
of death it none Art 1027 does not apply. law then obviously it cannot inherit.
3. The LW and the institution of the heirs (priest and minister)
must be executed after the confession made by the testator Art. 1028
before the priest or minister.
4. No undue influence if the priest only conducted a mass and IN RELATION TO ART 739
there was no confession because in this situation he merely
administered spiritual aid. Grounds of incapacity by reason of public policy and morality.
5. There is no disqualification if the priest or minister
pertaining to the legitime, intestacy and disposition.
Art. 739. The following donations shall be void:
B.

1. The relatives of such priest or minister of the gospel within (1) Those made between persons who were guilty of
the 4 th degre adultery or concubinage at the time of the
2. Church, chapter, organization or community or institution donation;
to which such priest or minister may belong.
 Testator and recipient rae guilty of
C. During the time where the guardianship is not yet terminated, any adultery and concubinage they are
disposition made in favor of the guardian by the ward is not valid. disqualified to inherit.
That means, that the guardian received the property by reason of
undue influence. (2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
If the guardian is the ascendant, descendant, brother, sister or spouse
of the ward, it shall be valid.  Both the testator annd recepient are
guilty of the crime.
The guardian is qualified and the disqualification will not apply as
because of the relationship of the guardian and the ward, the reason (3) Those made to a public officer or his wife,
for the disposition or institution is not undue influence but rather, descedants and ascendants, by reason of his
love and affection. office.

D. As to attesting witnesses, if he is a witness and at the same time he

 To prevent bribery or extension.
is a heir, legatee or devisee, the will valid.
 Donations were made because of his
position or office.
But the attesting witnesses will be disqualified to receive the legacy,
inheritance or devise.

If you are a witnesses and at the same time an heir, legacy or devisee,
because you will say that the will is valid, so you will be disqualified Art. 1029 “Institution of the Soul”
by reason of conflict of interest, if that witness is also a compulsory
heir, is he disqualified to receive his share?
Create dispositions for prayers and pious works for the benefit of his
soul.
you will be disqualified by reason of conflict of interest. But take
note, the if that witness is also a compulsory heir, is he also
disqualified to receive his inheritance? He is only disqualified as to Genera rule: if the disposition is for prayers and pious works, ½ is
the free portion but as to the legitime, he is still entitled. Again, as we proceeds to the Church and the other half to the State.
have discussed before, if there are 4 witnesses, the witness who is
also instituted as an heir, legatee, or devisee is not disqualified. Requisites for the Institution of the Soul:

Disqualification only pertains to the free portion. 1. The disposition must be for prayers and pious works.
2. The prayers and pious works must be for the benefit of the
E. testator’s soul.
3. The disposition must be in general terms.
Disqualified when there is continuous care given to the decedent or 4. It does not specify the application
testator. It is not just an isolated check-up like a check-up by a doctor 5. No particular person is charged with the duty of giving the
once. You will not be disqualified if it is an isolated check-up. You money or property.
will be disqualified if you took care of the testator during his last 6. No place is specified or date fixed for the prayers
illness and such care should be of continuous nature.
Art. 1030 “Insitution of the Poor”
Except: compulsory heir of the testator he will still be entitled to his
legitime. Disqualification will only extend as to the free portion but Who are considered the poor?
not to the legitime.

14 |Page
“The poor living in the domicile of the testator at the time of his
death...”
Who decides who are the considered as the poor?
1. Executor
2. If there is no executor, judge, the mayor, and the municipal
treasurer shall decide by majority vote all questions that
may arise.
Art. 1031
Scenario: Knowing that ground for disqualification, if the testator
would institute a common friend sa decedent and sa mistress – and
sabuton lang si common friend that this would be given to the
mistress – that would also be considered void. Otherwise, it would be
very easy to circumvent the disqualifications provided under the law.
Art. 1032 “Incapacity by reason of the unworthiness”
The persons who committed the abovementioned acts or the persons
who are the reason for such execution of the will may be disqualified
by law to disinherit from the testator, whether it is testate or intestate
succession.
Even if the testator did not disinherit. His child who attempted
against his life but by virtue of Art 1032 he is unworthy and thus
disqualified to inherit.
Provides the instances of incapacity by reason of unworthiness
wherein the disqualified heir has committed an offense against the
testator.
Applicable to both testate and intestate succession
There are some grounds that are the same with the grounds of
disinheritance. This means that although not validly inherited but he
is still disqualified because of Art 1032 because under that provision,
the requisites are not necessary for disinheritance because 1032
disqualifies the heir by operation of law.
If the will did not validly disinherit the heir, that heir could still be
disqualified or incapable of succeeding by virtue of Article 1032.
(2) Conviction need not be done before the testator or the decedents
death but the act must have been committed during the lifetime of the
latter. It is enough that he be convicted later on.
 Pardon by the President – although pardoned still
considered incapacitated because there is already final
judgment.
 Amensty granted by the President – is considered qualified.
If the heir died before final judgment , the heirs or successors would
not be incapacitated to inherit.
(4) This ground is not found in disinheritance.
(5) The disqualified person is the other woman or
man not the spouse himself or herself.
The spouse at failure is not incapacitated but may
be disinherited.
A decree of legal separation is needed to
disqualify the guilty spouse.
15 |Page
(6)(7) (8) refers to vitiated consent of the testator when he made the
will by fraud, violence, intimidation, or undue influence wherein the
testator will execute or change the will he has already made, or
prevent him from revoking the will he has already made.
Art. 1033. CONDONATION
What is condonation?
The testator knew about the ground or the basis of incapacity,
wherein such person has committed an act which a ground for
incapacity (e.g. unworthiness); but despite such knowledge, the
testator executed a will wherein he instituted or designated that
person as an heir. The heir is entitled or is capacitated to receive the
inheritance. You cannot anymore allege that he is disqualified
because of the implied condonation.
Kinds of condonation:
1. Express condonation- despite knowledge of the cause of
unworthiness, the testator expressly condones the act in
writing.
 Knowledge comes only after the execution of the
will.
 Must be in writing.
 If there is no disinheritance and there is only
unworthiness, if the testator knew of the act only
after execution of the will there has to be
condonation in writing.
2. Implied condonation- the testator knows that there is a
cause for unworthiness, but nevertheless, he included or he
instituted such heir in his will.
 The will must be valid and not revoked because
implied condonation is dependent on the will.
Note: Reconciliation restores the capacity to inherit regardless if there
is a ground to incapacity by reason of unworthniess which is also a
ground for disinheritance. If there is a ground for disinheritance and
thereafter there is reconciliation it need not be in writing but if there
is only an act of unworthiness condonation need be in writing.
Art 1034
General rule: The qualification or the capacity of the heir shall be
governed or measured or based on the existence or non-existence of
the ground at the time of the death of the decedent.
Exception:
1. Art 1032 No. 2,3 or 5 because you have to wait for the final
judgment.
2. If the insitution is subject to a condition, then the
fulfillemnt of the condition will determine the capacity
hence the institution will not be valid if there is non-
fulfillment.
Art. 1035
 A disqualified heir incapacitated to succeed can still be
represented. However, the disqualified heir cannot
administer the property of his child if that child represents
him because of the incapacity.
 But as for the free portion it will only be left to the heirs not
incapacitated because there is no representation pertaining
to the free portion.

 In intestate succession: If an heir is incapacitated by virtue
of the unworthiness, the legitime will be received by the
descendants and if instituted by the descedant, the
remaining balance to be received by the incapacitated heir
coming from the free portion will be given to the other
instittued heir by way of accretion.
Art 1036
 The 3rd person must be an innnocent purchaser for value.
 If the property was alienated or disposed by the disqualified
heir before the declaration of disqualification the
disposition will remain valid if the disposition was done in
good faith.
 Remedy of the co-heirs is to recover from the disqualified
heir.
Art. 1037
 If the descedent owed money to the excluded heir, the latter
can still collect as a creditor and not as an heir.
Art. 1038
Art. 1039
 Correlate with Article 16 of the New Civil Code. Matters
governed by the National Law of the decedent not the heir
but the decedent are the:
1) Order of Succession
2) Amount of successional rights
3) Intrinsic validity of testamentary dispositions
4) Capacity to succeed. (1039)
Art. 1040 ACTION FOR DECLARATION FO INCAPACITY AND
RECOVERY FOR THE INHERITANCE
 Disqualified person must take possession of the said
property before the 5-year prescriptive period will run.
Hence, the interested party can file the action anytime.
 Only interested parties can bring this action. (co-heirs or
creditors)
ACCEPTANCE AND REPUDIATION OF THE INHERITANCE
Art. 1041
Inheritance must be accepted otherwise it would not be considered as
valid.
Acceptance and Repudiation of the inheritance (even legitime) must
be freely done.
Acceptance and repudiation always retroacts to the moment of the
death of the decedent.
3 points of time in succession:
The time when succession opens.
- It takes places at the moment of the death of the testator.
2. Availability of the inheritance.
- This refers to the moment when the inheritance may be accepted.
3. Acquisition of the inheritance.
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Ar.t 1042
Acceptance is the act by which a person is called to succeed to the
inheritance of a decedent, either by will or by law, manifests his
assent to the receipt of the property, rights, and obligations which are
transmitted to him through the death of the decedent.
Repudiation is the act by which a person called to succeed to the
inheritance manifests his unwillingness to succeed to the same.
Retroactive effect:
Any increase or fruits or income from the property before the
acceptance will all accrue to the heir because, again, the right of the
heir over that inheritance will retroact to the time of the death of the
decedent.
It is the same in repudiation. It retroacts to the moment of the death of
the decedent. Essentially, it means that the heir who repudiates is
never deemed to have possessed the inheritance. If there is
repudiation, the heir should return all the properties and effects of the
estate because, again, by virtue of such repudiation, he is deemed to
have never accepted the inheritance.
Acceptance or repudiation before the death of the decedent but there
is already a will created will be void. The heir’s acceptance or
repudiation would be premature because the decedent has not yet
died.
Art. 1043
REQUISITES BEFORE THE ACCEPTANCE REPUDIATION
WILL BE CONSIDERED AS VALID
1. Knowledge of the death of the testator
 Certainty of death is from the death of such
persons.
 Heir cannot repudiate without knowing the death
of the decedent.
 If the heir does not know yet of the death of the
decedent, and the heir repudiates, that is not a
well-informed repudiation. In other words, it is
not a valid repudiation in the sense the heir has
nothing to repudiate yet.
2. Knowledge of the right to inheritance.
EFFECTIVE WAIVER OF HEREDITARY OF RIGHTS:
1. Existence of a right;
2. Knowledge of the existence thereof; and
3. Intention to relinquish such right.
Art 1044
When an heir accepts or repudiates they must have the capacity to
act.
The heir must be of age or the heir must not be a minor, the heir must
not be suffering from any restriction in the capacity to act, and the
heir must not be suffering mental capacity.
If an heir is suffering from civil interdiction he cannot accept or
repudiate because this involves disposal or management of property,
if one is incapacitated by civil interdiction one can dispose only
through mortic causa.
a person incapacitated by civil interdiction can execute a will. But he
cannot accept or repudiate while he is subject to civil interdiction.
Minors
Accept – through their parents or guardians Repudiate – through their
parents or guardians, plus court authorization or judicial authorization
The one who can accept for and on behalf of the minors is provided
in Art. 1044 – through their parents or guardians. But when it comes
to repudiation, it can be made by those parents or guardians but there
is a court or judicial authorization that is required unlike in
acceptance where it does not need court authority.
2. Poor
Accept – person or persons designated by the testator to determine
the beneficiaries, or in default, the order made in Article 1030
Repudiate – nothing is mentioned; an institution for the poor can only
be accepted and cannot be repudiated.
Art. 1045
Accept – their lawful representatives; if it is a corporation, there must
be a board resolution authorizing the person or representative to
accept
Repudiate – the lawful representative but with court approval
Art. 1046
Require approvale of the government.
Art. 1047
Husband can accept or repudiate without the consent of the wife.
Art. 1048
Accept - Through a guardian
Repudiate- Through guardian court approval
Art. 1049
Kinds of acceptance:
1. Express acceptance – through a public (acknowledged
through notary public) or private document (handwritten,
computerized and signed).
2. Tacit acceptance – inconsistent with repudiation. From acts
by which the intention to accept is necessarily implied, or
which one would have no right to do except in the capacity
of an heir.
3. Presumed acceptance (1057) - No acceptance or
repudiation made by the heir. But by reason of inaction,
deemed accepted it. Now, in case of doubt, it is therefore
presumed that he has accepted the inheritance. Failure to
object within the thirty-day period will be considered an
acceptance. This manner of acceptance, obviously, is only
applicable to cases where administrative proceedings have
already taken place. This is to avoid necessary delay in the
distribution of the estate.
Art. 1050 IMPLIED/ TACIT ACCEPTANCE
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(1) An heir becomes entitled to inheritance not because he was
named in the will but because of acceptance of inheritance.
Even if he did not expressly accept, but by virtue of selling
that property it is clear that he does so because it is his
inheritance that is why he exercises an act of ownership.
(2) Renunciation in favor of another heir.
(3) You cannot repudiate something and in return, accept
something. When you repudiate, you should never benefit
from something that you refuse to accept. That means, if
you receive a price in exchange for your repudiation that
would not be considered as really repudiation but merely,
an implied acceptance.
Take note: If the renunciation should be gratuitous, and the heir who
repudiated did not receive anything, the inheritance shall not be
deemed as accepted and the co-heirs in whose favor the repudation
was made would get to inherit by accretion.
Art.1051 REPUDIATION MUST BE EXPRESSED
Repudiation of an inheritance:
1. If it is made in a (a) public document or (b) authentic
document; OR
2. By petition presented to the court having jurisdiction over
the testamentary or intestate proceedings. (is this required?)
IMPERIAL VS CA
our law on succession does not countenance tacit repudiation of
inheritance. Rather, it requires an express act on the part of the heir.
In order to reduce an officious donation, it must be filed based on the
ordinary rules on prescription as provided under art. 1144 of the
NCC:
“Actions upon an obligation created by law must be brought within
ten years from the time the right of action accrues. Thus, the ten-year
prescriptive period applies to the obligation to reduce inofficious
donations, required under Article 771 of the Civil Code, to the extent
that they impair the legitime of compulsory heirs.
The value of the property at the time it is donated, that the property
itself is brought to collation, and the donation is found inofficious – it
will be reduced.”
Art. 1052
 Presupposes that debtor is an heir.
 An heir who repudiated his share prejudiced his creditor.
The creditor can accept on behalf of the heirs if there are no
other properties that could pay the credit of the heir.
 The creditor can limit their claim to the inheritance to the
extent of their credit.
LEVISTE VS CA
In this case, what was involve was a contingency arrangement
dependent on the successful probate of the will which however was
dismissed. Atty. Leviste was never entitled to the supposed fees.
When his client waives his right to the property given to her, Atty.
Leviste cannot use to Art. 1052. Atty. Leviste is not a party to the
probate proceeding, and he cannot be considered as creditor of Rosa
who waived her right. The payment of his fee is contingent ang
dependent upon successful probate of the will. Since it is dismissed,
the contingency did not occur. Therefore, he is not entitled to his fees.
BORROMEO -HERRERA VS BORROMEO
The heirs could waive their hereditary rights in 1967 even if the order
to partition the estate was issued only in 1969.
For a waiver to exist, three elements are essential:
(1) the existence of a right ;
(2) the knowledge of the existence thereof; and
(3) an intention to relinquish such right.
The intention to waive a right or advantage must be shown clearly
and convincingly, and when the only proof of intention rests in what a
party does, his act should be so manifestly consistent with, and
indicative of an intent to, voluntarily relinquish the particular right or
advantage that no other reasonable explanation of his conduct is
possible.
Even if there is yet no partition, the heirs could execute waiver of
their hereditary rights as emphasize in this case.
In this case the waiver was not effective, because there is no intent to
relinquish such right. The circumstances of this case show that the
signatories to the waiver document did not have the clear and
convincing intention to relinquish their rights. The Supreme Court
took into consideration the separate acts i.e. filing a case, executing
separate deeds of assignment and reconveyance. To which the
Supreme Court said that there was no intention on their part to waive
their right over the property.
Art. 1053
If there is a legatee or devisee (voluntary heirs) and such predeceased
the testator , the legatee acquires no right since he is only a voluntary
heir. That person has nothing to transmit to their descendants.
If the legatee or devisee survived the testator and later died without
accepting or repudiating the inheritance such rights will be
transferred to the decendants.
Art. 1054
The repudiated inheritance made by the several heirs shall follow the
order of ISRAI who will receive it.
Art. 1055
Repudiating the testamentary shares also amounts to the repudiation
of inheritance as a legal heir except when the person has no
knowledge that he was insitittued as an heir in the LWT.
If you do not accept the express wishes of the testator with more
reason that you are considered not to have accepted that which is
presumed by law.
If you renounced your testamentary share then that also means you
renounces your share as legal heir. Now, if you renounce your share
as a legal heir WITHOUT knowing you were instituted in the last will
and testament, what is only considered renounce is only with regard
to legal succession, and not the testamentary succession. Hence, you
can still accept the testamentary succession.
Art. 1056
18 |Page
General rule: Once you accept, you cannot change your mind. Once
you reject, you cannot also anymore change it.
Exception: If there is vitiation of consent, fraud, force, or undue
influence, or when there is another will wherein you have been
instituted, magáccept or repudiate.
EXECUTORS OR ADMINISTRATORS
Executors are persons who have been appointed in the last will and
testament by the decedent to administer the property. However, there
are instances where the last will and testament did not appoint an
executor. So what happens, an administrator will be appointed by the
court. And there will also be an administrator if there is no last will
and testament executed at all.
If you want to be appointed as an administrator, you have to file a
petition before the court. Aside from the petition of a probate of a
will, we have also what we call a petition for issuance of letters of
administration.
CORONA VS CA
A person can still be appointed as a special administrator despite
being disinherited by the decedent.
The appointment of a Special Administrator is discretionary with the
Court and is unappealable.
There is no requirement under the law that the executor/administrator
be related to the decedent, or there is some interest to protect.
Art. 1060
If it is a corporation, it can only appoint a guardian over a property
but cannot be appointed as a guardian over a person because as a
guardian of a ward, the law requires a close relationship with the
ward.
COLLATION
Art. 1061. Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the 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, and in the account of
the partition.
3 concepts of collation:
1. Mathematical process
 Add all the property donated by the testator inter
vivos during his lifetime.
 Upon the decedent’s death, the value of ALL the
donated properties will be collated to make it
part of the estate.
2. As an imputation
 Donations made during the lifetime of the
decedent are considered advances to the legitime
of the heirs.
 It is considered as to what extent the donation
will be charged as a legitime and free portion.
3. As a reduction or abatement
 If the donation is inofficious it will be reduced
and be brought back to the property of the testator
from his estate.
EXAMPLE 1:

a. Collate all the donations made by the testator during his

lifetime.
b. Add the net hereditary estate and the collated amount of
donated property.
c. If testate succession, determine the legitime and free
portion.
d. Reduce the amount donated from the shares of the heirs
in the legitime.

EXAMPLE 2:

a. Collate all the donations made by the testator during his

lifetime.
b. Add the net hereditary estate and the collated amount of
donated property.
c. If testate succession, determine the legitime and free
portion.
d. Reduce the amount donated from the shares of the heirs in
the legitime.
e. If the amount is more than what is received in the
legitime it will be charged to the to free portion.

19 |Page

DA DE TUPAS VS RTC OF NEGROS OCCIDENTAL
At the time of his death the lots were no longer owned by him, he
having donated them the year before (on August 2, 1977) to the
Tupas Foundation, Inc.
Claiming that said donation had left her practically destitute of any
inheritance, Tupas' widow brought suit against Tupas Foundation,
Inc. to have the donation declared inofficious insofar as it
prejudiced her legitime, therefore reducible " ... by one-half or
such proportion as might be deemed justified and the resulting
deduction restored and conveyed or delivered to her.
A person's prerogative to make donations is subject to certain
limitations: He cannot give by donation more than he can give by
will (Art. 752, Civil Code).
Because it is deemed inofficious the donation is reduced to the
extent of the excess, though without prejudice to it taking effect in
the donor's lifetime or the donee's appropriating the fruits of the
thing donated.
Such a donation is, moreover, collationable. Its value is imputable
into the hereditary estate of the donor at the time of his death for
20 |Page
the purpose of determining the legitime of the forced or
compulsory heirs and the freely disposable portion of the
estate.
Collation is also applicable to donations to strangers as of gifts to
compulsory heirs, although the language of Article 1061 of the
Civil Code would seem to limit collation to the latter class of
donations.
When we talk about collation it is not really the physical taking
back of the property but the value of the said property.
If it is a donation in favor of compulsory heirs it will be charged to
their legitimes. But if it is for strangers then this would form part
of the free portion.
When you say collation you cannot say that “this property is no
longer included since it was already donated to you during the
lifetime of the decedent” because that is essentially the purpose of
collation. That is, to bring back to the estate to make sure that
essentially the legitimes of the compulsory heirs are not
prejudiced.
Inofficiousness means that the donor gave more than what was
within his power to give. Decedent should only give the free
portion or that part of the estate that would not prejudice the
legitimes of the compulsory heirs.
What if after 3 or 5 years, the heirs found out that there are other
properties of the decedent but was not included during the
partition?
When we talk about collation it means all donations made by the
testator during his lifetime. Otherwise if it would not be allowed it
would be very easy for the decedent to circumvent the legitimes in
favor of his compulsory heirs.
ARELLANO VS PASCUAL
Collation is applicable only to compulsory heirs.
Because there were no compulsory heirs available, the decedent
was at liberty to donate all his properties, even if nothing was left
for his siblings (collateral relatives) to inherit.
As his siblings are merely collateral relatives, they are legal or
intestate heirs, but they are not compulsory heirs who are entitled
to legitime. There being no compulsory heirs, the donated property
is not subject to collation.
If there are compulsory heirs, all donations made during his
lifetime, whether it is in favor of the compulsory heirs or not,
is subject to collation.
Decedent’s remaining estate should thus be partitioned equally
among his heirs-siblings-collateral relatives
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.
When donations are inofficious that is when you reduce.
The donor can provide that his property not be subject to collation.

If the donor wanted the donation to not be included in the
collation the consequence would be that that donation will not be
imputed to his legitime. Thus, the donation would still be collated as
part of the estate, but it would be charged to the free portion.
How?
 For purposes of computing the net hereditary estate.
However, you do not impute it anymore to the legitime.
If the donation is inofficious the heir will have to return the donated
property, as it will prejudice the legitime of the other compulsory
heirs. In other words, there would be a reduction of such donation or
an abatement of the portion which exceeded the free portion.
BUHAY DE ROMA VS CA
There is nothing in the provisions of the deed of donation
expressly prohibiting the collation of the donated properties.
Art. 1062 is not applicable because the deed of donation, the
phrase “sa pamamagitan ng pagbibigay na di na mababawing
muli” does not fall under the contemplation of Art. 1062.
The phrase merely described the donation as “irrevocable” and
should not be construed as an express prohibition against
collation. The fact that a donation is irrevocable does not
necessarily exempt the subject thereof from collation required
under Article 1061.
Art 1062 requires that there is the intention to exempt from
collation should be expressed plainly and unequivocally.
Art. 1063. Property left by will is not deemed subject to collation,
if the testator has not otherwise provided, but the legitime shall in
any case remain unimpaired.
Properties subject of legacies or devices are not subject to collation
because they are not given during the lifetime of the testator. It was
given through a will and not donation.
If the legacies or devices are more than the free portion, they can
be reduced. However, we do not apply the rule on collation there as
this is property left by will. That legacy or devise will be respected
provided the legitime is left unimpaired.
The legacy granted is considered as an advance to the free portion,
not to the legitime.
Art. 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.
21 |Page
Whatever donations inter vivos received by his father, Juan, during
the lifetime of the decedent, dapat icollate PLUS whatever donations
inter vivos he received from the decedent he will also have to collate.
What will be collated are those:
1. Those received from the decedent himself and
2. What the representative received from the decedent.
Art. 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 to their children.
Donation made by the decedent to the descendant of an heir is not
subject to collation. It will be considered as part of the free portion of
the estate of the decedent.
There is only collation of the donated properties to the descendants of
the heir to determine the NHE.
Collation as a mathematical process, all of the donations made in his
favor would be collated to the estate of the decedent and would be
collated for the purposes of imputation of his legitime.
If he already had acquired donations during the lifetime of the
decedent, that would form part as advance of his legitime. If the
legitime is insufficient, then it shall be sufficed from the estate of the
deceased.
Art. 1066. Neither shall donations to the spouse of the child be
brought to collation; but if they have been given by the parent to
the spouses jointly, the child shall be obliged to bring to collation
one-half of the thing donated.
Donation made by the decedent to their children-in-law will not be
collated and not charged to the legitime of the heir (spouse)
The donation will only be collated for purposes of mathematical
processes.
The portion donated to Maria shall form part of the free portion of the
estate of the decedent.
If the donation was made to both spouses , under this article what is
only subject to collation is only the ½ portion of the donation so the
decedent can choose if the donation is for the child-in-law or for both
spouses.
Art. 1067. Expenses for support, education, medical attendance,
even in extraordinary illness, apprenticeship, ordinary equipment,
or customary gifts are not subject to collation.
These expenses are not considered donation because the reason why
they are given is not because of generosity but because of the moral,
social, and legal obligation on the part of the decedent.
Expenses for support, education, medical attendance are not subject
to collation at all. Meaning, values of these expense are not added
back to the estate.
They are not collated for purposes of mathematical concept in
computing the estate.
They are not charge or considered as advances to the legitime as these
refer to the obligations of the decedent.
Art. 1068. Expenses incurred by the parents in giving their
children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless 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 and
company of his parents shall be deducted therefrom.
General rule: Education referred here is College or at least equivalent
to professional, vocational or other career. This is not subject to
collation, hence it cannot be added or considered advances to the
legitime.
Exception: Unless the parents so provides, or unless they impair the
legitime.
Art. 1069. Any sums paid by a parent in satisfaction of the debts
of his children, election expenses, fines, and similar expenses shall
be brought to collation.
If the father acted as a guarantor, does it mean he donated that sum of
money paid to the creditor in favor of his son?
 If the parent as a surety or a guarantor then the child is the
debtor and not a donee.
What if the father already died and his son is a debtor, the son
repudiated his inheritance he will still be bound to pay the estate
because it was not donated to him.
 If the son has a debt to pay and the father voluntarily
wanted to pay because of pity, in that case, that would be
considered as a donation wherein since it is a donation, it is
subject to COLLATION, if he repudiated his inheritance,
would he be liable to his father? Not anymore because in
that second scenario he acted not as a guarantor but as a
donor.
 Of course, in that situation, that donation could be reduced
if the donation would prejudicial to the legitimes of the
compulsory heirs.
 If a case was filed and the bail was paid, that would also be
subject to collation and considered as advances on his
legitime.
Art. 1070. Wedding gifts by parents and ascendants consisting of
jewelry, clothing, and outfit, shall not be reduced as inofficious
except insofar as they may exceed one-tenth of the sum which is
disposable by will.
Wedding gifts are subject to collation as a mathematical collation
hence, it shall be collated back to the estate.
22 |Page
General rule: These gifts will not be charged to the legitime of the
heir who received them as a gift.
Except: Gifts exceed 1/10 of the free portion.
The same things donated are not to be brought to collation and
partition, but only their value at the time of the donation, even
though their just value may not then have been assessed.
Their subsequent increase or deterioration and even their total loss
or destruction, be it accidental or culpable, shall be for the benefit
or account and risk of the donee.
The value of the donation at the time it was made will be collated.
If the value increased or decreased, it does not matter, as the value to
be collated is the value of the property at the time it was donated. It is
for the benefit of the donee, if there is a risk or deterioration the same
shall be borne by the donee, so, it is just fair to not include the
deterioration nor the improvement as to the value of the property
from the time of donation up to the time of death.
Art. 1072. In the collation of a donation made by both parents,
one-half shall be brought to the inheritance of the father, and the
other half, to that of the mother. That given by one alone shall be
brought to collation in his or her inheritance.
Upon the death of the father, only ½ of the estate as it is only that
portion that would pertain the to the estate of the deceased father.
This is likewise with the mother as well.
Art. 1073. The donee's share of the estate shall be reduced by an
amount equal to that already received by him; and his co-heirs
shall receive an equivalent, as much as possible, in property of the
same nature, class and quality.
What the donee received , the other co-heirs if possible should also
receive similar to what was given to the donee.
Art. 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; and should there be neither cash or
marketable securities in the estate, so much of the other property
as may be necessary shall be sold at public auction.
If the property donated was movable, the co-heirs shall only have
a right to select an equivalent of other personal property of the
inheritance at its just price.
If the property donated was personal property other heirs have the
right to demand or to select an equivalent of other personal property
of the inheritance at its just price.
If the what was doanted was movable other heirs have no right to
demand cash or security. But, if you are talking about a movable
property, they have a right to select an equivalent of other personal
property at its just price.
If the donation was an immovable property and it is not practicable to
donate the same then the equivalent thereof in cash or securities. If
there is no cash or securities, then, the estate can be sold to generate
cash or securities.
Art. 1075. The fruits and interest of the property subject to
collation shall not pertain to the estate except from the day on
which the succession is opened.
For the purpose of ascertaining their amount, the fruits and interest
of the property of the estate of the same kind and quality as that
subject to collation shall be made the standard of assessment.
Is the done obliged to return the fruits and interests of the property?
If the donation is inofficious and it is affected by the legitime of the
compulsory heirs only the fruits and interest from the time of death of
the decedent until actual return. Any fruits and interests from the time
of donation until death, the done has no obligation to return it to the
estate.
Art. 1076. The co-heirs are bound to reimburse to the donee the
necessary expenses which he has incurred for the preservation of
the property donated to him, though they may not have augmented
its value.
The donee who collates in kind an immovable which has been
given to him must be reimbursed by his co-heirs for the
improvements which have increased the value of the property, and
which exist at the time the partition if effected.
As to works made on the estate for the mere pleasure of the donee,
no reimbursement is due him for them; he has, however, the right
to remove them, if he can do so without injuring the estate.
What happens to the expenses incurred by the donee for the
preservation of the property donated to him?
1. Expenses are for preservation, then the donee should be
reimbursed regardless of whether or not they increased the
value of the property because again these expenses are
necessary for preservation of the property.
2. Expenses for improvement which increased the value of the
property there is only reimbursement if the improvements
exist at the time the partition is effected.
3. Expenses made for mere pleasure no reimbursement is
through however he has the right to remove such provided
that the state would not be injured upon such removal.
Art. 1077. Should any question arise among the co-heirs upon the
obligation to bring to collation or as to the things which are
subject to collation, the distribution of the estate shall not be
interrupted for this reason, provided adequate security is given.
Issues arising on donations being collated should not be allowed to
delay the distribution. In other words, the heirs can still distribute
whatever properties are present or included in the estate pending the
determination of the propriety of collation but provided adequate
securities are given.
the heir can still partition or distribute even if they are pending issues
in collation as long as there is a security given to protect other heirs
assuming that the heir that is bound to collate cannot do so.
In collation determine:
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1. Should this be collated for purposes of the mathematical concept or
for purposes of computing the net hereditary estate? You determine
whether yes or no.
2. Second, should it be imputed to the legitime? Should it be
considered as an advance from the legitime? Because it would affect
how much would you receive from the estate.
3.Third, is the donation inofficious that would result in the reduction
or abatement of such donation?
SUMMARY:
If there are compulsory heirs, collation as a mathematical process is
always present and even if there are compulsory heirs, consider
whether or not these are advances to their legitime.
General rule: Donations are considered as advances to the legitime of
the compulsory years as a h
Exception: When the testator provides otherwise.
There is reduction or abatement, if the donations made were
considered to be inofficious.
Collation is not allowed with legacies and devises they are already
included in the distribution under Art 1063.
Collation is not allowed of matters provided under Article 1067,
because these are actually obligations.
PARTITION
Partition and distribution is applicable to both testamentary and
intestate succession.
Testate succession: Partition takes place after the will has been
allowed by the court.
Intestate succession: Partition takes place depending if it can be
through an extrajudicial partition or settlement of the estate wherein
the heirs themselves would partition and distribute the estate among
themselves without going to court. (e.g extrajudicial partition)
Art. 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.
Heirs own the property own in common an estate as an ideal share of
the property or the estate. Aliquot or spiritual share of the estate.
Before partition, as co-owners, they cannot point to a specific portion
of the property or the estate as being owned by them. No specific
portion is exclusively owned by any of the heirs because all of them
own the property in common.
Art. 1079. Partition, in general, is the separation, division and
assignment of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its value.
PURPOSE OF PARTITION?
Put an end to co-ownership it seeks the severance of the individual
ownership, individual interest of each coowner vesting in each sole
estate in specific property and giving each one a right to enjoy his
estate without supervision and interference of another.
NOSEDA VS CA
The source of co-ownership among the heirs was intestate succession.
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.
Partition, in general, is the separation, division and assignment of a
thing held in common among those to whom it may belong.
There is no co-ownership where portion owned is correctly
determined and identifiable, though not technically described, or that
said portions are still embraced in one and the same certificate of title
does not make said portions less determinable or identifiable, or
distinguishable, one from the other, nor that dominion over each
portion less exclusive, in their respective owners. A partition legally
made confers upon each heir the exclusive ownership of the property
adjudicated to him.
HEIRS OF SERASPI VS CA
Ownership of the property cannot be based on succession for the
property was not part of those distributed to the heirs of the third
marriage, to which private respondent belongs. It must be
remembered that in the partition of the intestate estate of Marcelino
Recasa, the properties were divided into three parts, each part being
reserved for each group of heirs belonging to one of the three
marriages Marcelino entered into. Since the contested parcels of land
were adjudicated to the heirs of the first and second marriages, it
follows that private respondent, as heir of the third marriage, has no
right over the parcels of land. While, as heir to the intestate estate of
his father, private respondent was co-owner of all of his father's
properties, such co-ownership rights were effectively dissolved by the
partition agreed upon by the heirs of Marcelino Recasa.
HEIRS OF TEVES VS CA
REQUISITES FOR A VALID PARTITION UNDER RULE 74
(1) The decedent left no will;
(2) The decedent left no debts, or if there were debts left, all had been
paid;
(3) The heirs are all of age, or if they are minors, the latter are
represented by their judicial guardian or legal representatives;
(4) The partition was made by means of a public instrument or
affidavit duly filed with the Register of Deeds.
Oral partition and the non-registration of the extrajudicial settlement
are valid:
In the case of Vda. de Reyes vs. CA, the Court, upheld the validity of
an oral partition of the decedent's estate and declared that the non-
registration of an extrajudicial settlement does not affect its intrinsic
validity. It was held in this case that —
The requirement that a partition be put in a public document and
registered has for its purpose the protection of creditors and at the
same time the protection of the heirs themselves against tardy claims.
The object of registration is to serve as constructive notice to others.
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It follows then that the intrinsic validity of partition not executed with
the prescribed formalities does not come into play when there are no
creditors or the rights of creditors are not affected. Where no such
rights are involved, it is competent for the heirs of an estate to enter
into an agreement for distribution in a manner and upon a plan
different from those provided by law.
Thus, despite its non-registration, the extrajudicial settlements
involving Lot 769-A are legally effective and binding among the heirs
of Marcelina Cimafranca since their mother had no creditors at the
time of her death.
Art. 1079
1. When it comes to conjugal or absolute community of
property and only 1 spouse died. The only half of the
property would be partitioned among the heirs.
2. The other half would still be owned by the surviving spouse
where the surviving spouse will have a share.
3. Share of the surviving spouse would depend as to how
many heirs are left by the decedent, let us say, children.
4. If there is an extrajudicial settlement executed by the heirs,
the title will be in the name of the surviving spouse.
5. If the children waive their share, in the extrajudicial
settlement, in favor of their surviving parent (surviving
spouse) it will be entitled as "Extrajudicial Settlement with
Waiver of Rights." And such waiver would be considered a
donation. If the value of the property is high, there would
be a possibility of liability for donor's tax (exempt up to
P250K per year only).
Art. 1080
Art. 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 article, by
ordering that the legitime of the other children to whom the
property is not assigned, be paid in cash.
Art. 1081. A person may, by an act inter vivos or mortis causa,
intrust 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 mandatary, in such case,
shall make an inventory of the property of the estate, after
notifying the co-heirs, the creditors, and the legatees or devisees.
2 kinds of extrajudicial partition:
1. By the decedent
a. Through inter vivos. No requirement of formalities.
No transfer of ownership. There is merely a physical
determination of the portion to be given to the heirs.
b. Execution of a will wherein formalities must be
complied with.
2. By the heirs
a. Orally-binding only between themselves who
participated in such oral agreement
 b. Public instrument. – binding against 3rd persons.
Requisites
1. The mandatary should not be a co-heir;
2. In case one of the heirs is subject to guardianship, it is
required that there be notifications to the co-heirs, creditors,
legatees or devisees; and
3. There has to be an inventory of the estate.
The mandatary only has the power to make a physical division of the
property and not any disposition.
Partition made by the mandatary is either approved or rejected by the
heirs.
If rejected and there is a will the probate court will decide.
Art. 1082. Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to be a
partition, although it should purport to be a sale, and exchange, a
compromise, or any other transaction.
no specific formality; not even required to be in writing because
every act with that intention will be sufficient.
Moreover, there is no specific time as to when partition is to be
effected as long as it is intended to put an end to the indivision or to
end the co-ownership.
The parties may execute a compromise agreement or may orally
agree and divide the same –and occupy their specific portion. But
again, there still no transfer of ownership at that time –the parents
still own the property but during their lifetime, the same has been
apportioned – this is allowed even orally and verbally among the
heirs.
Art. 1083. Every co-heir has a right to demand the division of the
estate unless the testator should have expressly forbidden its
partition, in which case the period of indivision shall not exceed
twenty years as provided in article 494. This power of the testator
to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-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
As long as the partition is not expressly prohibited, partition can be
demanded anytime by any of the co-heirs.
The right to demand partition does not prescribe. In fact, it can also
apply to co-legatees. Partition can only be demanded if there is still
co-ownership. If there is no co ownership, the co-heir cannot demand
partition anymore.
Partition can be done anytime except when the testator has forbidden
the partition. However, it shall not exceed 20 years.
If the testator stated that partition shall not be allowed thirty (30)
years from the time of his death, partition is prohibited up to twenty
(20) years. The excess of ten (10) years is not valid. After twenty (20)
years, any of the co-heirs can now demand partition.
Instances when partition is allowed before 20 years:
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1. When any of the causes for the termination of the
partnership is present.
2. Heirs themselves mutually agree to partition
3. Upon order of the court for compelling reasons and upon
petition of the heirs.
HEIRS OF GERRY ECARMA VS CA
Under the law on property, co-ownership is discouraged.
Co-owners cannot compel other co-owners to stay in the co-
ownership unless expressly prohibited by the testator.
SANTIAGO VS SANTIAGO
It was also emphasized that during the 20-year period, what was
only transferred to the heirs was the right to administration.
During the 20-year period, all the heirs co-own the subject
property. When the 20-year period expired, the property should be
partitioned among the heirs already.
MAYUGA VS ATIENZA
Perfecto could have legally partitioned his estate during his
lifetime. Under Article 1080 of the Civil Code, "[s]hould a person
make a partition of his estate by an act inter vivos, or by will, such
partition shall be respected, insofar as it does not prejudice the
legitime of the compulsory heirs." Since the Civil Code allows
partition inter vivos, it is incumbent upon the compulsory heir
questioning its validity to show that his legitime is impaired.
Unfortunately, Araceli has not shown to what extent the
Confirmation Affidavit prejudiced her legitime.
The disposition of property must be made in the manner allowed
by law, namely, by will. After the designation in the will, then
comes the second part, the division in conformity with that
disposition and the testator may make this division in the same
will or another will or by an act inter vivos.
Our law now does not require a valid will in order that the
partition inter vivos be valid. As we submit, because the Supreme
Court here cited the explanation by the Civil Law commentator,
that the partition inter vivos may be considered valid even if it is
not in a form of the will because no formalities are required and
the designation in that partition shall be made in accordance with
the laws of intestacy.
A partition inter vivos that designates a 3rd person a portion of
the property is void because there has to be a designation by a
valid will.
Art. 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, and 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.
A voluntary heir whose institution is subject to a condition cannot
demand partition before the fulfillment of the condition. The other
heirs concurring with such voluntary heir may demand partition
provided they give security or bond to safeguard the rights of the
conditional heirs.
GENERAL RULE: The right to demand partition does not prescribe.
EXCEPTION: When one of the heirs adversely possesses the
properties and has already complied with requirements for the
acquisitive prescription.
Art. 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 and kind.
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 and that strangers be allowed to bid, this
must be done.
If the object is indivisible, it can be sold and divide the proceeds
among themselves.
If not sold, the property can go to one heir provided that he pays the
other the excess of his share in cash.
Even if 1 hear demanded the thing to be sold , it should be followed.
ARTICLE 1087. In the partition the co-heirs shall reimburse one
another for the income and fruits which each one of them may
have received from any property of the estate, for any useful and
necessary expenses made upon such property, and for any damage
thereto through malice or neglect.
If one of the co-heirs is in possession of the property, but through his
malice or neglect, and causes damage to the property, he is liable to
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 coheirs may be
subrogated to the rights of the purchaser by reimbursing him for
the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by
the vendor.
This refers to LEGAL REDEMPTION. Redemption or the right to
redeem takes place by operation of law.
Who are entitled to legally redeem? Under 1088, the heirs. Any or all
co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale.
However, as an exception, if the co heir who wants to exercise the
right of legal redemption dies prior to the exercise of each of his such
right, then his right may be transmitted to his co-heirs.
REQUISITES FOR THE EXERCISE OF LEGAL
REDEMPTION AMONG CO-HEIRS , CO-OWNING A
PROPERTY
1. There are two or more heirs
2. There is a sale of hereditary right One of the heirs sells his
hereditary right to a stranger.
● There must be a SALE or other onerous disposition (e.g. dacion en
pago)
● The sale MUST be voluntary or forced as in the case of sales on
execution.
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● He has a debt, and he was not paid. He has a share in the property,
so it can be used to satisfy the debt, only insofar as the undivided
share.
3. The buyer must be a stranger
● That share must be sold to a third person. The buyer must be a
stranger. He must not be a co-heir. Since you are still talking about
co-heirs and co ownerships here, obviously, the sale here must be
made before partition.
4. The sale must be made BEFORE partition
● That is why only the interest is subject to the sale or onerous
disposition. There is no partition yet. There is no specific portion
attributed to anyone of them.
5. At least one co-heir must demand partition
● If all of the co-heirs demand partition, they shall be allowed to
redeem their proportionate share pertaining to them. Meaning, they
want to redeem it from the purchaser of the said property.
6. The demand must be made within one month from Notification in
Writing | Under Article 1088
● Take note that the demand here by the co-heirs must be made
within 1 month from notification in writing to which the
redemptioner, the co-heir, redeems the sold share by the one co-heir
to a third person, must reimburse the price of the said sale.
● Again, this takes place by operation of law. Buyer of the undivided
interest of one co-heir cannot refuse to sell the said property because
by operation of law, cannot sell back or return it, have it redeemed by
the co-heirs.
CABALES VS CA
Legal redemption may only be exercised by the co-owner or co-
owners who did not part with his or their pro indivisio share in the
property held in common. Since the sale of the undivided share of
Nelson and his mother was invalid, they were not divested of their
ownership thereto. Necessarily, Nelson and his mother may
redeem the property from the buyer Spouses Feliano. However,
they must do so within 30 days from notice in writing of the sale
by their co-owner vendors.
In the case at bar, the right of redemption was invoked years after
the sale was made in 1978 and The SC is satisfied that there was
sufficient notice of sale to Nelson.
Art. 1089. The titles of acquisition or ownership of each property
shall be delivered to the co-heir to whom said property has been
adjudicated.
ARTICLE 1090. When the title comprises two or more pieces of
land which have been assigned to two or more co-heirs, or when it
covers one piece of land which has been divided between two or
more co-heirs, the title shall be delivered to the one having the
largest interest, and authentic copies of the title shall be furnished
to the other co-heirs at the expense of the estate. If the interest of
each co-heir should be the same, the oldest shall have the title.
Order of preference as to whom title shall be delivered if some
properties remain undivided:
 1. the one who has the largest interest over the property
involved.
2. if they have equal or same interest, it will be given to the
oldest among the heirs.
EFFECTS OF PARTITION:
ARTICLE 1091. A partition legally made confers upon each heir
the exclusive ownership of the property adjudicated to him.
Once there is partition, co-ownership is dissolved, and that means, the
heir now has exclusive ownership that was partitioned in his favor.
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.
The heirs are reciprocally and proportionately warrant each other. If it
turns out that one of the co-heirs to whom the property was
adjudicated was not part of the estate, there is an obligation imposed
upon the other heirs because each of them warrants the property.
They have rights over their respective properties.
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.
The one who paid for that insolvent heir cannot be reimbursed if the
financial condition of the person is not improved.
Article 1094. An action to enforce the warranty among heirs must
be brought within ten (10) years from the date the right of action
accrues.
In a warranty against eviction, do not just state the number of years.
You must state the whole period – 10 years from the date the right of
action accrues.
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 five (5) years following the partition.
Co-heirs do not warrant bad debts, if so known to, and accepted
by, the distributee. But if such debts are not assigned to a co-heir,
and should be collected, in whole or in part, the amount collected
shall be distributed proportionately among the heirs.
Accounts receivables:
Those debts due to the one who died, e.g., the one who died is a
creditor, the debts in his favor are accounts receivables. Those are
assets, and those are properties which can be distributed and
partitioned among the heirs.
What happens if the heirs partitioned the debts in favor of the
creditor, and the debtor or owner of the account receivables assigned
to you turned out to be insolvent, what is the effect? Is there a
warranty with regard to insolvency? Can the heir run after the co-
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heirs for his share because it would be unfair on his part that the
debtor assigned to him was insolvent?
There is warranty against insolvency, provided that the debtor should
be insolvent at the time of the partition, not later. That such warranty
is good for five (5) years following the date of partition.
There is no warranty for bad debts if so known to, and accepted by,
the distributee.
“Bad debts” mean it is already difficult to collect or even during the
lifetime of the testator, it cannot be collected. But nonetheless, they
included it in the partition, in that case, there is no warranty with that,
as long as it is known as bad debt to the heirs and they accepted it
despite said knowledge.
There is no warranty for bad debts and if an heir accepts the same,
then, it is at his own risk.
Article 1096. The obligation of warranty among co-heirs shall
cease in the following cases:
(1) When the testator himself has made the partition, unless it
appears, or it may be reasonably presumed, that his intention was
otherwise, but the legitime shall always remain unimpaired;
(2) When it has been so expressly stipulated in the agreement of
partition, unless there has been bad faith;
(3) When the eviction is due to a cause subsequent to the partition,
or has been caused by the fault of the distributee of the property.
When the testator himself made the partition. This is because the
heirs have no choice but to accept the partition made by said testator.
They cannot have a warranty against the testator unless all of the
heirs decide that there is such warranty.
The exception is that the legitime is prejudiced or affected. Again, the
legitime must always be unimpaired. If the legitime of the heir would
be deprived, then, the other co-heirs must contribute so that the
legitime of that heir would be satisfied or completed.
Here, there is no reciprocal warranty because it is no longer the fault
of the heirs that there is a subsequent eviction.
For a warranty to subsist, there must already be a cause existing at the
time of partition, although at the time, there is still no eviction. But if
the cause of the eviction arose after the partition, or it was due to the
fault of the distributee, then, there is no warranty with regard to the
other heirs.
RESCISSION AND PARTITTION
Art. 1097. A partition may be rescinded or annulled for
the same causes as contracts.
What are the grounds for Rescission? LESION.
What is the ground for annulment? Vitiated consent. These
include fraud, mistake, violence, undue influence, etc.
Art. 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 one-fourth, than the share to which he is entitled,
considering the value of the things at the time they were
 adjudicated.
Example the heir receives a share which is valued less than ¼. Let us
say the heir is entitled to 100k but he only received 75k, there’s a
lesion in the amount of 25k so that’s at least ¼.
That can be partitioned.
Art. 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.
General Rule: Under Article 1098, a rescission may be asked on the
account of lesion, if there is a reduction of at least ¼ of his share to
which he is entitled.
Exception: If the partition is made by the testator himself even if the
deduction is less than ¼, the heir cannot ask for rescission.
Exception to the Exception:
The heir can still ask for rescission even if the partition was made by
the testator himself:
1. When the lesion affects the legitime of the compulsory heirs
2. If it was the intent of the testator that his partition to be rescinded
in the case there is lesion.
Art. 1100. The action for rescission on account of lesion
shall prescribe after four years from the time the
partition was made.
Should be reckoned from the time the partition was made.
Art. 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 and quality as that
awarded to the plaintiff.
If a new partition is made, it shall affect neither those
who have not been prejudiced nor those have not
received more than their just share.
What are the consequences when there is rescission due to lesion?
1. If an heir is prejudiced due to lesion, he would be given the amount
that is lacking to complete his legitime. In other words, he will be
indemnified for the balance to complete the legitime. OR
2. He can also have a new partition, but the heirs whose shares are
correct or are not prejudiced will no longer be included in the new
partition as provided under Article 1101
Art. 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.
The heir can no longer return the property adjudicated to him, so he
cannot have a new partition. It would be unfair to the others. What he
can do is to indemnify in cash the balance amount of what is
supposed to be due him.
Art. 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.
“Preterition on the Objects in the partition”
The omission of one or more object is not a ground of partition.
There is no new partition.
28 |Page
What needs to be done is just to partition those objects that weren’t
included in the prior partition.
Art. 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.
Art 1104 Art 854
Preterition not in the will Preterition in the will.
but in the partition
Article 1104 speaks of preterition not in the will but in the partition.
So there’s a compulsory heir that was not included in the partition.
GENERAL RULE: Preterition here will not cause rescission of the
partition.
EXCEPTION: If proved that there was bad faith or fraud on the part
of the persons interested. They purposely did not include one of the
compulsory heirs in the partition. If such is present then the partition
can be rescinded.
REILLO VS SAN JOSE
It was clear that there was preterition in this case
because the petitioners Zosimo and his children
executed an extrajudicial settlement without the
knowledge and consent of all the other surviving heirs
of the deceased spouses Quiterio San Jose and Antonina
Espiritu Santo.
They misrepresented themselves as the sole heirs of the
spouses when in fact there are other children of the
spouses who are Galicano, Victoria, and Catalina.
The Court held that a deed of extrajudicial partition
executed without including some of the heirs, who had
no knowledge of and consent to the same, is fraudulent
and vicious. The deed of settlement made by petitioners
was invalid because it excluded respondents who were
entitled to equal shares in the subject property.
Under the rule, no extrajudicial settlement shall be
binding upon any person who has not participated
therein or had no notice thereof.
NON VS CA
The exclusion of petitioner Delia Viado, alleged to be a
retardate, from the deed of extrajudicial settlement
verily has had the effect of preterition. This kind of
preterition, however, in the absence of proof of fraud
and bad faith, does not justify a collateral attack on
Transfer Certificate of Title No. 373646. The relief, as
so correctly pointed out by the Court of Appeals, instead
rests on Article 1104 of the Civil Code to the effect that
where the preterition is not attended by bad faith and
fraud, the partition shall not be rescinded but the
preterited heir shall be paid the value of the share
pertaining to her. Again, the appellate court has thus
acted properly in ordering the remand of the case for
further proceedings to make the proper valuation of the
isarog property and ascertainment of the amount due
petitioner Delia Viado.
Art. 1105. A partition which includes a person believed
 to be an heir, but who is not, shall be void only with nonheirs.
respect to such person.
EMILIANA BAUTISTA VS HON. CAROLINA
Under this provision, there is a person who is not an heir but was
included in the partition. The said partition also effectively resulted in the
preterition of the right of Evangeline Bautista as a
Art 1104 Art 1105 compulsory heir of Manuel Bautista, daughter of the
A person who must be A person who is not an latter by his second marriage. It is difficult to believe
included but not included; heir but he is included in that Manuel Bautista would wittingly overlook and
the partition ignore the right of her daughter Evangeline to share in
the said property. It is not surprising that he denied
The partition pertaining to that person is invalid. signing the said document. Moreover, the other
An action to annul the extrajudicial partition which involve a person Bautistas knew Evangeline Bautista who is their half-
who is not an heir is imprescriptible or does not prescribe. sister to be a compulsory heir. The court finds that her
preterition was attended with bad faith hence the said
LANDAYAN VS BACANI partition must be rescinded.

Maxima Andrada, the surviving spouse of Teodoro
Abenojar, and Severino Abenojar, executed a public
document, entitled "ExtraJudicial Agreement of
Partition" whereby they adjudicated between themselves
the properties left by Teodoro Abenojar. Severino
Abenojar represented himself in said document as "the
only forced heir and descendant" of the late Teodoro
Abenojar.
Maria, Segundo, Marcial and Lucio, all surnamed
LANDAYAN alleged that they are the legitimate
children of Guillerma Abenojar, then already deceased,
who was the only child of Teodoro Abenojar with his
first wife named Florencia Bautista and that , he did not
have any offspring in any of the said second and third
marriages.
Article 1104 provides that 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.
If we consider that partition in connection to Manuel’s
estate, there is bad faith because the person who
executed has knowledge that they still have a half-sister
which is Evangeline. With that, the partition will be
rescinded.
If the property does not belong to the estate of the
decedent, then it cannot be subject to an extrajudicial
partition.

It could be gathered from the pleadings filed by the With regard to Juliana, that deed of extrajudicial
petitioners that they do not seek the nullification of the partition is void ab initio because it does not belong to
entire deed of extra-judicial partition but only insofar as her. Again, to include in an extrajudicial partition,
the same deprived them of their shares in the inheritance property which does not pertain to the deceased would
from the estate of Teodoro Abenojar. Should it be deprive the lawful owner thereof.
proved, therefore, that Severino Abenojar is, indeed, not
a legal heir of Teodoro Abenojar, the portion of the deed Only the property of the estate of the decedent which
of extrajudicial partition adjudicating certain properties is transmitted by succession can be the lawful subject
of Teodoro Abenojar in his favor shall be deemed matter of an extrajudicial partition.
inexistent and void from the beginning in accordance
with Articles 1409, par. (7) and 1105 of the Civil Code.
By the express provision of Article 1410 of the Civil
Code, the action to seek a declaration of the nullity of
the same does not prescribe

AZNAR BROTHERS VS CA

There was an allegation that there were heirs who did

not participate in the extrajudicial partition and there are
also persons who participated therein who were heirs of
the deceased. Still as a general rule, these are not
grounds to rescind or consider the said partition as void.

Applying Article 1104, a partition made with preterition

of any of the compulsory heirs shall not be rescinded
unless there is bad faith or fraud. Wherein in this case
there was no evidence of such bad faith or fraud and
then as to the two parties who were allegedly not heirs,
we have Article 1105, wherein it shall be void only with
respect to such persons. In other words, the partition of
non-heirs does not render the partition void in its
entirety but only to the extent corresponding to these

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