Succ - Taleon Notes Mateo 1

WILLS
and
SUCCESSION
2019 EDITION
✓ New Civil Code Codal

✓ Civil Code III by Edgardo L. Paras
✓ Comments and Cases on Succession by Hector De Leon
✓ Comments and Jurisprudence on Succession by Desiderio
Jurado
✓ Jurisprudence based on Prof. Risel Castillo-Taleon
✓ Notes on Prof. Risel Castillo-Taleon’s Lectures
MARY EVIELYN N. MATEO

SAN BEDA ALABANG – SCHOOL OF LAW
Articles 774-803 WILLS & SUCCESSION (2019)
General Provisions, Wills, Testamentary Capacity Vice Dean Castillo-Taleon
CHAPTER 1 Nature and Incidents of Succession
GENERAL PROVISIONS • Succession is a derivative mode of acquiring and
(Articles 774 to 782) transmitting ownership and other real rights over
property
Article 774. Succession is a mode of acquisition by • It takes place at the moment of death of the
virtue of which the property, rights and obligations to decedent or deceased person
the extent of the value of the inheritance, of a person are • The transmission to the successor or grantee
transmitted through his death to another or others (heir/devisee/legatee) covers only property, rights,
either by his will or by operation of law. and obligations of the decedent w/c are not
extinguished by his death
Art. 774 speaks of succession mortis causa; it also • It is limited to the extent of the value of the
defines the term. inheritance for the heir is not liable beyond the
value of the property he received from the
Concept of Succession decedent
“Succession” is derived from the phrase “sub cedere” • Succession takes place by will, or by operation of
which means “to substitute” or “to subrogate.” law, or mixed.
Succession = (in its objective sense) referring to the Art. 775. In this Title, “decedent” is the general term
totality or entirety of the property, rights and obligations applied to the person whose property is transmitted
of a person transmitted to another or others through through succession, whether or not he left a will. If he
any of the modes of acquisition and transmission left a will, he is also called the testator.
recognized by law.
Subjective Elements of Succession
succession The subjective elements of succession consist of the
(as a mode of
acquisition)
decedent and those who are called to succeed such
decedent either by will or by operation of law, such as
the heirs, devisees or legatees.
broadest juridical strict juridical
sense sense
‘Decedent’ Defined
= the person whose estate is to be distributed.
= it signifies the = it signifies the
substitution or substitution or = (transferor/causante) refers to a deceased person
subrogation of a person subrogation of a person in who is the source of the hereditary property or
in the transmissible the transmissible rights
rights and obligations and obligations of a estate which is to be distributed
of another deceased person
He is also called:
succession mortis succession inter succession mortis
• testator — if he left a will
causa vivos causa • intestate — if he left no will
Heirs, Devisees or Legatees

Kinds of Succession
As to effectivity = those who are called to the inheritance.
(1) succession inter vivos (example: donation) • An heir is a person called to the whole or to an
(2) succession mortis causa (this is succession aliquot portion of the inheritance either by will or by
in the specific sense meant in Art. 774) operation of law;
As to whether a will exists or not • A devisee is a person to whom a gift of real
(1) testamentary succession (there is a will) property is given by virtue of a will;
(2) intestate or legal succession (there is NO • while a legatee is a person to whom a gift of
will) personal property is given by virtue of a will.
(3) mixed succession (part of the property has
been disposed of in a will) Art. 776. The inheritance includes all the property, rights
As to the transferees of the property and obligations of a person which are not extinguished
(1) compulsory succession (refers to the by his death.
legitime)
(2) voluntary succession (refers to the free Inheritance refers to the mass of property, rights, and
disposal) obligations of a person existing at the time of his death
As to the extent of rights and obligations involved and which are not extinguished by his death including
(1) universal succession (covering ALL juridical those which have accrued from that time.
relations involving the deceased)
(2) particular succession (covering only certain Objective Element of Succession
items or properties) The objective element of succession is what is known
Special kind as the inheritance
(1) Contractual succession — that kind where
a future husband and a future wife give to INHERITANCE SUCCESSION
each other future property, effective mortis property or right manner by virtue of
causa, by means of a marriage settlement. acquired which the property or
right is acquired
MATEO, MARY EVIELYN | 1

universality of all the the legal mode/manner submitted to the CFI (now RTC) in the exercise of its
property, rights and by which such property, general jurisdiction to try and determine ordinary
obligations constituting rights and obligations actions. The probate court may do so only for the
the patrimony of the are transmitted purpose of determining whether or not a given property
decedent which are not should be included in the inventory of the estate of the
extinguished by his deceased, but such determination is not conclusive
death and is still subject to a final decision in a separate
the first is the objective element of the second. action to be instituted between the parties (Magallanes
also referred to as v. Kayanan; L-31048, Jan. 20, 1976)
“descent”
Rights
“Title by descent,’’ is Some rights are extinguished by death: some are not.
defined as the title by
which one person on the Examples of rights extinguished by death (and which
death of another, therefore are not part of the estate):
acquires the estate of (1) intransmissible personal rights because of their
the latter as his heir at nature
law. a. those appertaining to family rights,
b. marital and parental authority,
ADMINISTRATION SUCCESSION c. support,
dealing with a deceased the transferring to it d. action for legal separation,
person’s property beneficially e. partnership, agency, commodatum, life
according to law annuity
(2) right to claim acknowledgment or recognition as a
PATRIMONY SUCCESSION natural child.
Aggregate of all juridical Mass or totality of the (3) right of the donor to revoke a donation by reason
relations of a person patrimony of the of ingratitude
susceptible of economic decedent which is not (4) right of usufruct and personal easement/servitude
valuation extinguished by his (5) right to hold public or private office or job.
death
The first is broader than the second NOTE: The above-mentioned rights have no
inheritability,
What Inheritance (Latin — “hereditas”; Spanish — i.e., they are not transmissible mortis causa.
“herencia”) Includes
(1) property Examples of rights not extinguished by death (and
(2) rights not extinguished by death which therefore are part of the estate):
(3) obligations not extinguished by death (to the (1) Right to bring or continue an action for forcible
extent of the value of the inheritance) entry or unlawful detainer.
(2) Right to compel the execution of a document
A person has no obligation to pay for the debts of his necessary for convenience, provided that the
stepfather (Nacar v. Nistal; L-33006, Dec. 8, 1982) contract is valid and enforceable under the Statute
of Frauds.
Properties (3) Right to continue a lease contract either as lessor
These include real as well as personal properties. or lessee, unless otherwise provided for in the
contract
Moreover, the transferee will also own accessions to (4) Property right in an insurance policy (the interest
the property accruing thereto, from the moment of of a beneficiary in a life insurance policy) is a
death to the time of actual receipt by said transferee. vested interest (provided, the designation of the
This is because ownership is transferred at the moment beneficiary is irrevocable), and as such is
of death. transmissible by hereditary succession, unless by
the terms of the policy it is otherwise provided.
The human corpse is not a property and is therefore (5) Action to recover possession against the heirs of
not part of the estate. This is without prejudice to RA the possessor or by the heirs entitled to the
349, as amended by RA 1056 allowing under certain possession against the occupant
conditions the granting to certain entities of a person’s (6) Civil liability arising from crime
organs after death. (7) Rights and obligations arising from contract or
negligence
It is understood, of course, that properties NOT
BELONGING to the estate must be excluded, for they Obligations
are not part of the inheritance. Hence, it is important to Obligations Not Extinguished by Death
determine the ownership of the properties involved. In general, all obligations are transmissible unless
purely personal (like the obligation to support) or non-
The CFI (now RTC) has no jurisdiction to pass finally transferable by law or contract. Hence, it is proper to
and definitely upon the ownership of properties say, from one viewpoint, that an heir still pays for the
involved in probate proceedings or in the summary
settlement of estates. Such questions must be

debts of his deceased father, but only if same can be Transmission of successional rights
covered by the inheritance. Art. 777 enunciates the principle that the rights to the
succession are transmitted from the moment of the
Restricted concept of inheritance death of the decedent. This principle is
No succession shall be declared unless and until a complemented by the provisions of Arts. 1042 and 533
liquidation of the assets and debts left by the of the Code.
decedent shall have been made and all his creditors
fully paid. Until a final liquidation is made and all debts Since the effectiveness of successional rights depends
are paid, the right of the heirs to inherit remains upon the death of the decedent, and since such death
inchoate. It partakes of the nature of a mere hope and is the very reason of succession, the moment of such
nothing more. This is so because under our rules of event has been fixed as the moment for the
procedure, liquidation is necessary in order to transmission
determine whether or not the decedent has left any
liquid assets which may be transmitted to his heirs. BEFORE THE DEATH OF THE DECEDENT, no heir
may enter into a contract with respect to his future
Therefore, it is no longer the heirs who are responsible share in the inheritance. This is so because, before the
for the payment of the debts or obligations of the death of the decedent, the heirs have only a mere hope
decedent, but the estate itself; and if the estate should or expectancy, absolutely inchoate in character, to their
not be sufficient to pay for such debts or obligations, share in the inheritance. Hence, any contract entered
the heirs cannot be made to pay for the unpaid into with respect to future inheritance would have no
balance. In other words, such debts or obligations do object whatsoever, and as a consequence, would be
not become the debts or obligations of the heirs after inexistent from the beginning. This is confirmed by Art.
the death of the decedent; they remain as debts or 1347 of the Code itself which declares that no person
obligations of the decedent, to the payment of which can enter into a contract with respect to future
his property may be subjected wherever it be found. inheritance except in cases expressly authorized by
Consequently, the inheritance may be more law.
accurately defined as the universality of all the
property and transmissible rights and obligations The rights to the succession are transmitted from the
constituting the patrimony of the decedent which moment of death of the decedent. The estate of the
are not extinguished by his death and which are decedent would then be held in co-ownership by the
available for distribution among those who are heirs. The co-heir or co-owner may validly dispose of
called to succeed after settlement or liquidation. his share or interest in the property subject to the
condition that the portion disposed of is eventually
That while the debts of the deceased still remain allotted to him in the division upon termination of the
unpaid, no residue may be divided among the heirs, co-ownership (Maria Vda. de Reyes, et al. v. CA; GR
legatees, and devisees. Indeed, the court may order 92436, July 26, 1991).
the sale of sufficient property for the satisfaction of the
debts and the heirs cannot question this. Such a step A transmission by inheritance is TAXABLE AT THE
is necessary for the eventual partition of the estate. No TIME OF THE PREDECESSOR’S DEATH,
residue may also be divided among the creditors of notwithstanding the postponement of the actual
said heirs without first settling the debts of the possession or enjoyment of the estate by the
deceased (Pamplona v. Moreto, et al.; L-33187, Mar. beneficiary, and the tax is measured by the value of the
31, 1980). property transmitted at the time regardless of its
appreciation or depreciation (Lorenzo vs. Posadas; 64
Art. 777. The rights to the succession are transmitted Phil. 353).
from the moment of the death of the decedent
Conditions for the Transmission of Successional
Causal Element of Succession Rights (requisites for succession mortis causa) DTA
Succession is the expressed will of the decedent as (1) that indeed there has been a Death (either actual
manifested in his last will and testament or his or presumed)
presumed will as provided by law which is the efficient (2) that the rights or properties are indeed
cause of the transmission of successional rights, while Transmissible or descendible
the fact of his death is the condition. (3) that the transferee is still Alive (no predecease),
willing (no repudiation), is capacitated to inherit.
It must be observed, however, that the fact of death
with respect to succession is more than a condition; it NOTE: Though the law says “are transmitted,” the
is the very reason of succession itself — as a matter of proper words should be “are made effective,” for
fact, it is the very reason for the manifestation of the will otherwise, we may be led to believe that the decedent’s
of the decedent. right to succeed are what are transmitted, and not the
rights to the inheritance.
Hence, we can very well say that the death of the
decedent is not only the condition, but also the Administration of the Estate
final cause of the transmission of successional When the heirs are all of legal age, and there are no
rights. debts to be settled, there is generally no necessity to
appoint an administrator, and the heirs themselves
may enter upon the administration of the property. Of

course, even though the heirs, legatees, or devisees Other Kinds of Succession
have already taken possession of the estate, the (4) Compulsory (or necessary or forced)
possession should be surrendered by them to the succession = or succession to the legitime
judicial administrator, in case one be appointed by the → It is compulsory for the testator to give his
court. compulsory heirs their legitimes; but it is not
compulsory for the heirs to receive or accept
Effect of Fraudulent Intestate Proceedings said legitimes, for no one is compelled to
If heirs conceal the existence of other heirs and as a accept an economic advantage or benefit
result of such concealment, the intestate proceedings from another.
should award them with property, the prejudiced heirs
can still file an action to recover their shares, (5) Contractual Succession = This happens
notwithstanding the termination of the settlement when a future husband and future wife give to
proceedings. This is because ownership of their shares each other in their marriage settlement as
accrued to them automatically upon the decedent’s much of their future property, in the event of
death. HOWEVER, the action should be brought within death, as they may validly dispose of in a will.
a period of two years (Carreon, et al. v. Agcaoili, et al.; → Contractual succession, it must be noted that
L-11156, Feb. 23, 1961). this does not need the formalities of a will; a
marriage settlement [which must comply with
When No Transmission Occurs RIPN the Statute of Frauds as to form, i.e., in writing
If the heir instituted is: - is sufficient.
(1) Repudiates the inheritance
(2) Incapacitated Testamentary succession
(3) Predeceases the testator Testamentary succession is that which results from
(4) although the heir is ready, willing, and able — the the designation of an heir, made in a will executed in
right is Not transmissible or descendible (the right the form prescribed by law.
to support) ✓ The designation of an heir is not essential for the
→ said heir inherits nothing. validity of a will. What is essential is that the
succession must be effected through the
Inheritance/Estate Tax testator’s will executed in the form prescribed
• The inheritance (estate) tax is a tax not on the by law.
property itself but on the transmission (transfer or
devolution) of the property. Testamentary succession may be done thru a will or
• The date the inheritance (estate) tax accrues is thru a codicil. The will or codicil may be:
distinct from the date on which it must be paid. • notarial (ordinary, attested, or acknowledged)
• The ESTATE tax is a virtual charge on the giver • holographic (handwritten by the testator from
(the deceased) for the transmission of the beginning to end, complete with date and
property; the INHERITANCE (now changed to signature)
estate) tax is a charge on the recipient (the
heirs, devisees, and legatees). The inheritance tax NOTE: In case of doubt, testamentary succession is
is paid on what is LEFT after the estate tax has preferred to legal or intestate succession (See Art.
been deducted from the residuary estate 791).
Art. 778. Succession may be: Intestate succession

(1) Testamentary; = That which is effected by operation of law in
(2) Legal or intestate; or default of a will.
(3) Mixed. ✓ If the decedent has not made any will, or even
where he has made one, if it has not been made
Art. 779. Testamentary succession is that which results in accordance with the formalities prescribed by
from the designation of an heir, made in a will executed law, his presumed will as provided by law shall
govern the distribution of his hereditary estate after
in the form prescribed by law.
his death.
Art. 780. Mixed succession is that effected partly by will
TESTATE INTESTATE
and partly by operation of law.
it is the expressed will of it is his presumed will as
the testator manifested provided by the law itself
Kinds of Succession in his last will and which governs
Succession may be: testament which is the
(1) Testamentary = (based on the manner of supreme law in the
effecting the succession) it is based on a last succession
will and testament, which is the orderly
manifestation of the testator’s will Mixed succession
(2) Legal or intestate = it is called legal, because succession may be mixed in the sense that it may be
it takes effect by operation of law
effected partly by will and partly by operation of law.
(3) Mixed = called mixed, because it partakes of Thus, under our law, if the testator makes a will which
the character of both testamentary and legal does not dispose all of his property, the result is what
succession is known as mixed succession.

The succession partakes of the nature of both Property in existence at decedent’s death
testamentary and legal succession. Hence, in the It must be noted, however, that this can only refer to
distribution of the hereditary estate of the testator after those properties which are available for distribution
his death, testamentary succession shall take place among the persons called to the inheritance after
with respect to that part of his property which he has settlement or liquidation.
disposed of in his will, while legal succession shall take
place with respect to that part which he has not Q: Does the body or mortal remains of the decedent
disposed of. form a part of the inheritance?
A: Under Rep. Act No. 349, as amended by Rep. Act
Contractual succession No. 1056, a person may validly grant to a licensed
According to Art. 1347 of the Civil Code, no contract physician, surgeon, known scientist, or any medical or
may be entered into regarding future inheritance scientific institution, authority to detach at any time after
except in cases expressly authorized by law. This the grantor’s death, any organ of his body, and to utilize
precept or principle is based on the fact that the object the same for medical, surgical or scientific purposes.
of a contract should exist at the moment of its The grant or authorization must:
celebration or, at least, it can exist in the future. (1) be in writing;
(2) specify the person to whom or the institution
Under Art. 130 of the Code, however, the future to which the grant is given;
spouses may give or donate to each other in their (3) specify the organ to be detached;
marriage settlements their future property to take effect (4) specify the use or uses of the organ to be
upon the death of the donor and to the extent laid down employed; and
by the provisions of the Civil Code relating to (5) be signed by the grantor and two disinterested
testamentary succession. witnesses.
If all of these requirements have been complied with,
Since a donation by reason of marriage is a true after the death of the grantor, the grant or authorization
contract and since it shall take effect only after the shall be binding upon the executor or administrator,
death of the donor, it is evident that it is in reality a successors of the deceased and members of his family
contractual disposition mortis causa
Transmissible rights and obligations
TESTAMENTARY CONTRACTUAL (1) rights and obligations between husband and wife;
it is essential that the the donation or (2) property relations between husband and wife;
testamentary disposition does not (3) action for legal separation;
dispositions must be have to be contained in (4) action to compel acknowledgment of a natural
contained in a will a will. It is, however, child;
executed in accordance essential that it must be (5) action to obtain judicial declaration of illegitimate
with the formalities executed in accordance filiation of an illegitimate child who is not natural;
prescribed by law with the form prescribed (6) parental authority or patria potestas;
for donations by reason (7) rights of a guardian;
of marriage; in other (8) right to receive and the obligation to give support;
words, it must comply (9) right to hold a public office as well as the right to
with the Statute of exercise a profession or vocation;
Frauds (10) right of usufruct;
(11) right of personal easement;
Art. 781. The inheritance of a person includes not only (12) rights and obligations arising from a contract of
the property and the transmissible rights and partnership;
obligations existing at the time of his death, but also (13) rights and obligations arising from a contract of
those which have accrued thereto since the opening of agency; and
the succession. (14) criminal responsibility
Extent of Inheritance
According to Art. 781 in conjunction with Art. 776, the
inheritance of a person includes:
(1) the property, transmissible rights, and obligations
(to the extent of the value of the inheritance
existing at the time of his death)
(2) as well as those which have accrued thereto since
the opening of the succession (such as alluvium)
→ NOTE: The accretions or accessions are not
strictly inherited for they form part of the
estate only after the heirs become the owners
thereof; hence, properly speaking, they are
acquired by accretion (as an incident of
ownership under the LAW), not by
succession.

Art. 782. An heir is a person called to the succession
As to inclusion
inheritance
either by the provision of a will or by operation of law.
in the
As to transmissibility/
intransmissibility Exceptions Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue
of a will.
purely
Intransmissible
personal Transferees (“Causahabientes”) in

rights
(rights x TESTAMENTARY Succession
relative to Heirs = they succeed by universal title, that is, to ALL
persons and or a FRACTION or ALIQUOT PART of the properties,
family)
rights and obligations)

Instramissible
transmissible
Legatees and Devisees = if they succeed by particular

patrimonial > those which are expressly title to cash or to a particular or specified item or thing
rights
made intransmissible by
(rights ✓ in the inheritance.
relative to operation of law such as (1) Legatees — if they succeed to particular
property) personal and legal usufructs personal properties (legacies).
and personal easements. (2) Devisees — if they succeed to particular real
properties (devises).
✓
Instramissible
rights Concept of Heirs
arising > those arising from contracts
an heir still succeeds to the whole or to an aliquot
transmissible
from which by their very nature are

obligations intransmissible, those which are portion of the inheritance either by virtue of a will or by
/
✓ expressly made intransmissible operation of law, while a devisee or legatee still
rights of succeeds to individual items of property by virtue of a
obligations by agreement of the parties, and
(whether those which are expressly made will
contractual/
otherwise)
intransmissible by operation of
law. CLASSES OF HEIRS IN
TESTAMENTARY
SUCCESSION
Monetary Obligations
Under the New Rules of Court, only monetary
obligations or claims for money must be filed within the
VOLUNTARY HEIRS COMPULSORY HEIRS
time limited by the rules against the estate of the
decedent; otherwise, they are barred forever.
It is only these claims which must be liquidated in the

= an heir called to succeed to
testate or intestate proceedings. the whole or an aliquot part of
= an heir called by law to
succeed to a portion of the
the disposable free portion of testator's estate known as
the hereditary estate by virtue the legitime
After liquidation, the court which has jurisdiction over of the will of the testator
the proceedings, on application of the executor or
administrator, or a person interested in the estate, and
after hearing upon notice shall assign the residue of the
estate to the persons entitled to the same, naming INHERITANCE IN
TESTAMENTARY
them and the proportions, or parts, to which each is SUCCESSION
entitled.
Hence, under our system of procedure for the DISPOSABLE FREE LEGAL
PORTION PORTION/LEGITIME
settlement of the estates of deceased persons,
monetary obligations of the decedent can only be
charged against his estate and not against his heirs.
= over which the testator has = over which the testator has no
absolute testamentary control and testamentary control because the law has
It must be noted that the claims or obligations which which, consequently, may be already reserved it for certain heirs who
disposed of by will in favor of any are, therefore, called compulsory heirs,
can be charged against the estate of the decedent after person not disqualified by law to and which, consequently, cannot be
disposed of by will in favor of any other
his death are those monetary obligations contracted succeed
person
by the decedent himself during his lifetime and not
those contracted by his heirs.
After-Acquired Properties
Note that property acquired by the testator between the
time the will is made and the time he dies, is NOT given
to the designated heir unless the contrary has been
expressly provided. (Art. 793). Such property is
acquired PRIOR to the death, not afterwards.

CLASSES OF HEIRS IN
DEVISEES/LEGATEES HEIRS
INTESTATE always called to always called to
SUCCESSION
succeed to individual succeed to an
items of property indeterminate or aliquot
those who inherit BY
portion of the
those who inherit BY
THEIR OWN RIGHT
RIGHT OF decedent’s hereditary
REPRESENTATION
estate
succeed by particular succeed by universal
title (titulo particular) title (titulo universal)
= as in the order of always called to called to succeed either
intestate succession = as those provided in
provided in Arts 978 to Arts 981 succeed by means of a by means of a will,
1014
will (voluntary) or by
operation of law
(compulsory and legal).
Possibility of Dual Status they are similar in the sense that both are called to
If in a will, a compulsory heir is given more than his succeed by means of a will and also in the sense
legitime, he assumes a dual status: that the shares of both are chargeable against the
→ Insofar as his legitime is concerned, he is a disposable free portion of the testator’s estate
compulsory heir.
→ Insofar as the excess is concerned, he is a Importance of distinction
voluntary heir. EFFECT:
This distinction is important because if a compulsory In case of preterition or to annul entirely the
heir dies ahead of the testator, his legitime is inherited pretermission in the institution of heirs, but
by his own child. On the other hand, the child of a testator’s will of one, legacies and devises
voluntary heir who predeceases or dies ahead of the some, or all of the shall be valid insofar as
testator gets nothing from said testator. (Art. 856). compulsory heirs in the they are not inofficious
direct line: (Art. 854)
Concept of devisees and legatees In case of imperfect or to annul the institution of
→ Devises and legacies are possible only in defective heirs to the extent that
testamentary succession. This is evident from the disinheritance the legitime of the
provision of the second paragraph of Art. 782. disinherited heir is
→ A devisee or legatee always succeeds to individual prejudiced, but legacies
items of property by means of a particular or and devises shall be
special title. valid insofar as they are
not inofficious
The devise or legacy which is given to a devisee or (Art. 918)
legatee by means of a will is, as a general rule, a In case properties are such properties are not,
charge against the free portion of the testator’s acquired by the as a rule, included
property. testator after the among the properties
→ It must be noted, however, that this rule is of execution of the will: disposed of unless it
practical importance only in case the testator should expressly appear
is survived by compulsory heirs who, under in the will itself that such
our system of compulsory succession, are was the testator’s
entitled to a legitime. In such case, the intention. It is evident
testator’s hereditary estate is divided, as a that this rule is
general rule, into the legitime or legal portion applicable only to
and the disposable free portion. Since it is a legacies and devises
rule that the testator has no testamentary and not to institution of
control over the legitime, it follows that heirs
devises and legacies can only be charged (Art. 793)
against the disposable free portion. If the
testator is not survived by compulsory heirs,
his entire property is considered as free
property, in which case, the devises and
legacies can be charged against the entire
property. Hence, we can define devisees and
legatees more accurately as persons to whom
gifts of individual items of real and personal
property, chargeable, as a general rule,
against the disposable portion of the testator’s
hereditary estate, are respectively given by
virtue of a will.

CHAPTER 2 made prematurely is
TESTAMENTARY SUCCESSION useless
SECTION 1 WILLS executed in accordance
SUBSECTION 1. — WILLS IN GENERAL It is a solemn or formal
with the formalities
(Articles 783 to 795) act
prescribed by law
There must be animus intent to make a will
Art. 783. A will is an act whereby a person is permitted, testandi
with the formalities prescribed by law, to control to a The testator must be capacitated to make a will
certain degree the disposition of his estate, to take It is an act mortis causa it produces effects only
effect after his death. It is ambulatory and
after the death of the
testator — hence, the
revocable during the
A will is a disposition, made by a competent testator in will is termed
testator’s lifetime
the form prescribed by law, of property over which he “ambulatory”
has legal power of disposition, which disposition is of
such nature as to take effect after his death (Page) The will is strictly a personal act in all matters that
are essential.
A will is an instrument by which a person makes a ., it must have been
disposition of his property to take effect after his death, executed freely,
It is free from vitiated
and which is, in its own nature, ambulatory and knowingly, and
consent
revocable during his life (Jarman) voluntarily, otherwise it
will be disallowed.
Elements of Will (It is.. (as distinguished from a
(1) a written instrument joint) act (if executed by
It is an individual
(2) duly executed and attested, a Filipino, whether in the
(3) by which a competent person makes Philippines or abroad).
(4) a voluntary disposition whether totally or
(5) of property partially) in accordance
(6) in favor of another competent person with his wishes (“to a
It disposes of the
(7) to take effect after the maker’s death, certain degree” only,
testator’s estate
(8) meantime being revocable (Bigelow) because legitimes are
reserved for compulsory
A will is the testator speaking after death. Its provisions heirs).
have substantially the same force and effect in the Since the will expresses
probate court as if the testator stood before the court in the manner in which a
full life making the declarations by word of mouth as person intends how his
they appear in the will. That was the special purpose of properties be disposed,
the law in the creation of the instrument known as the the wishes and desires
It is a disposition of
last will and testament (Justice Moreland, in his of the testator must be
property
dissenting opinion in Santos vs. Manarang, 27 Phil. strictly followed. Thus, a
209) will cannot be the
subject of a compromise
Characteristics of Wills agreement which would
(1) It is a strictly personal act; thereby defeat the very
(2) It is an individual and unilateral act; purpose of making a will.
(3) It is a free and voluntary act;
(4) It is a formal and solemn act; Oral Conveyances
(5) It is an act mortis causa; and The consistent jurisprudence in this country, despite
express codal provisions, has recognized oral
Essential Elements and Characteristics of a contracts as valid and efficacious to bring about
Will partition of a decedent’s estate among his heirs
A will has been defined provided such partition does not affect the interest of
as species of third persons. (Lasam v. Lasam, CA, L-18184-R, Mar.
conveyance whereby a 29, 1962, 58 O.G. 7232).
person is permitted, with
The making of a will is a
statutory (not a natural)
the formalities Art. 784. The making of a will is a strictly personal act; it
right
prescribed by law, to cannot be left in whole or in part to the discretion of a
control to a certain third person, or accomplished through the
degree the disposition of instrumentality of an agent or attorney.
his estate after his
death. Personal Character of Wills
This means that no the making of a will cannot be delegated or left in whole
acceptance by the or in part to the discretion of a third person, or
It is a unilateral act transferees is needed accomplished through the instrumentality of an agent
while the testator is still or attorney
alive; any acceptance

The mechanical act of drafting may be entrusted to Art. 788. If a testamentary disposition admits of
another, as long as the disposition itself expresses the different interpretations, in case of doubt, that
testator’s desires, and all the formalities of the law are interpretation by which the disposition is to be operative
complied with, such as the signing by the testator and shall be preferred.
the witnesses (in the case of a notarial will), or the
copying by the testator in his own handwriting (in the
Dispositions susceptible of different
case of the holographic will).
interpretations
Under this rule, that construction is to be adopted which
Art. 785. The duration or efficacy of the designation of will sustain and uphold the will in all its parts, if it
heirs, devisees or legatees, or the determination of the can be done consistently with the established rules of
portions which they are to take, when referred to by law.
name, cannot be left to the discretion of a third person.
If the language used is reasonably susceptible of two
Delegation of Testamentary Acts different interpretations, one which will defeat, and the
Art. 785 is an extension of Art. 784. There are three other sustain, the provisions, the doubt is to be
acts inseparably or intimately connected with the resolved in favor of the construction which will give
making of a will, acts which are testamentary in effect to the will, rather than the one which will defeat
character, and which, therefore, cannot be left in whole it.
or in part to the discretion of a third person.
Art. 789. When there is an imperfect description, or
They are: DEP when no person or property exactly answers the
(1) the Duration of the designation of heirs, description, mistakes and omissions must be
devisees or legatees; corrected, if the error appears from the context of the
(2) the Efficacy of the designation; will or from extrinsic evidence, excluding the oral
(3) the determination of the Portions which they declarations of the testator as to his Intention; and when
are to take when referred to by name
an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testator’s
Art. 786. The testator may entrust to a third person the intention is to be ascertained from the words of the will,
distribution of specific property or sums of money that taking into consideration the circumstances under
he may leave in general to specified classes or causes, which it was made, excluding such oral declarations.
and also the designation of the persons, institutions or
establishments to which such property or sums of Mistakes and Omissions
money are to be given or applied. Kinds of Ambiguity in a Will
HOW MAY THIS BE
When a Third Person May Be Entrusted - KIND OF AMBIGUITY
CURED?
Delegation of Non-Testamentary Acts Latent or Intrinsic (Jurado)
This Article does not really contradict the preceding Ambiguity By ascertaining the
one, for in Art. 786 the particular names are not = that which does not testatorial intention
designated whereas in Art. 785, the names of particular appear on the face of the using for this purpose
persons are given. Moreover, in Art. 786, a class or a will, and is discovered either intrinsic or
cause is what is specified. only by extrinsic extrinsic evidence or
evidence. both, but excluding the
The testator, in order to make the different devises or oral declarations of the
legacies more effective, is allowed to entrust to a third This ambiguity is not testator as to his
person: found in the will itself, intention.
(1) the power to distribute specific property or which is clear. The doubt
sums of money which he may have left in arises only because of (Paras)
general to specified classes or causes: and things outside the will. BY EXAMINING:
(2) the power to designate the persons, 1) the will itself
institutions or establishments to which such In a will, this kind of 2) extrinsic evidence
property or sums of money are to be given or ambiguity arises: such as written
applied. (1) when there is an declarations of the
imperfect testator (NOTE —
It is evident, therefore, that in the cases contemplated description of the extrinsic evidence taken
by the article under discussion, the testator has already heir, legatee, or from the alleged ORAL
completed the testamentary act of making a will; what devisee; declarations of the
he entrusts to the third person are merely the details (2) when there is an testator should NOT be
thereof in order to make the devise or legacy more imperfect allowed, as this can
effective. description of the result in fraud,
gift being given; confusion, and
Art. 787. [Construction of Wills] The testator may not (3) when only one unfairness to the dead
make a testamentary disposition in such manner that recipient is man whose words may
another person has to determine whether or not it is to designated but it be distorted or perjured)
be operative or not. turns out that there
are two or more

who fit the Art. 791. The words of a will are to receive an
description. interpretation which will give to every expression some
effect, rather than one which will render any of the
Patent or Extrinsic (Jurado) expressions inoperative; and of two modes of
Ambiguity The testatorial intention interpreting a will, that is to be preferred which will
= that which appears on is to be ascertained from prevent intestacy.
the face of the will itself; the context of the will
in other words, by and the circumstances
Interpretation as a Whole
examining the provision under which it was
✓ The will must be interpreted as a whole
itself, it is evident that it made, but again
✓ While testacy is preferred over intestacy, this is
— is not clear. excluding the oral
true only if the will has been validly made
declarations of the
Takes place when there testator as to his
is an uncertainty intention. Art. 792. The invalidity of one of several dispositions
arising upon the face contained in a will does not result in the invalidity of the
of the will as to the (Paras) other dispositions, unless it is to be presumed that the
application of any of its Same as what was testator would not have made such other dispositions if
provisions stated for curing a latent the first invalid disposition had not been made.
ambiguity. [NOTE: This
Example: “I hereby is because the law Effect of Invalid Dispositions
institute some of my allows us to get the ✓ Even if one disposition or provision is invalid, it
seven brothers.” (It is intention from: does not necessarily follow that all the others are
evident here that we do 1) the words of the will also invalid.
not know how many of 2) the circumstances ✓ The exception occurs when the various
the brothers are being under which the will was dispositions are indivisible in intent or nature.
instituted.) made (clearly allowing
extrinsic evidence also, Art. 793. Property acquired after the making of a will
like written declarations shall only pass thereby, as if the testator had possessed
of the testator, but it at the time of making the will, should it expressly
clearly disallowing oral appear by the will that such was his intention.
declarations of the
testator).] After-acquired property
Under Art. 793, property acquired during the interval
Art. 790. The words of a will are to be taken in their between the execution of the will and the death of
ordinary and grammatical sense, unless a clear the testator are not, as a rule, included among the
intention to use them in another sense can be gathered, properties disposed of, unless it should expressly
and that other can be ascertained. appear in the will itself that such was the intention of
the testator.
Technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a Thus, if the testator made a will in 1965 disposing of his
contrary intention, or unless it satisfactorily appears properties in the form of gifts or bequests of specific or
that the will was drawn solely by the testator, and that determinate real or personal properties, and
he was unacquainted with such technical sense. subsequently, during the period from 1965 to the time
of his death in 1978 he is able to acquire other
Rules for Interpretation of Words properties, according to Art. 793, the will shall only
General Rule: Ordinary words have their ordinary pass those properties which he had at the time of its
meanings. execution in 1965, but not those which he had acquired
Exception: If there is a clear intention that another subsequent thereto.
meaning was used — provided that other meaning can
be General Rule: What are given by the will are only
determined. those properties already possessed and owned by the
testator at the time the will was made, not those
General Rule: Technical words have technical acquired after (“after-acquired property”).
meanings(Example — “natural child” means that
kind defined in the law of PERSONS). Exceptions: (Here, the after-acquired properties are
Exceptions: also given to the persons designated in the will) REEL
(1) If there is a contrary intention (1) If the will is Republished or modified by a
(2) If it appears that the will was drafted by the subsequent will or codicil (in which case, the
testator alone, who did not know the technical properties owned at the time of such republication
meaning or modification shall be given).
→ Reason: Wills drafted by experts like lawyers (2) If it Expressly appears in the will that it was the
are construed more strictly than those made intention to give such “after-acquired” properties
by ordinary laymen (3) If at the time the testator made the will he
Erroneously thought that he owned certain
properties, the gift of said properties will not be

valid, unless after making the will, said properties from the viewpoint of TIME and the viewpoint
will belong to him. of PLACE.
(4) Legacies of credit or remission are effective only
as regards that part of the credit or debt existing at General Rules on Validity
the time of the death of the testator. EXTRINSIC VALIDITY
From the what must be observed is the law in
Art. 794. Every devise or legacy shall convey all the viewpoint force at the time the will is
interest which the testator could devise or bequeath in of TIME MADE/executed.
the property disposed of, unless it clearly appears from what law must be observed depends:
the will that he intended to convey a less interest. (1) Philippine laws;
or
What Interest May Be Disposed of (2) those in the
General Rule: The entire interest of the testator in the If the country where
property is given — not more, not less. testator is “he may be”; or
a Filipino (3) those in the
Exceptions: country where
(1) He can convey a lesser interest if such intent he executes the
clearly appears in the will. (Art. 794). will
(2) He can convey a greater interest From the (1) law of his
→ Thus, the law provides “If the testator … owns viewpoint domicile; or
only a part of, or an interest in the thing of PLACE If the (2) his nationality;
bequeathed, the legacy or devise shall be or testator is or
understood limited to such part or interest, COUNTR an alien (3) Philippine laws;
UNLESS the testator expressly declares that Y who is or
he gives the thing in its entirety.” abroad (4) where he
(3) He can even convey property which he very well executes the
know does not belong to him provided that it also will.
does not belong to the legatee or devisee (1) law of his
→ Art. 931 provides: “If the testator orders that a If the nationality; or
thing belonging to another be acquired in testator is (2) the laws of the
order that it be given to a legatee or devisee, an alien in Philippines,
the heir upon whom the obligation is imposed the since he
or the estate must acquire it and give the Philippines executes the will
same to the legatee or devisee; but if the here
owner of the thing refuses to alienate the INTRINSIC VALIDITY
same or demands an excessive price From the successional rights are governed by
therefor, the heirs or the estate shall only be viewpoint the law in force at the time of the
obliged to give the just value of the thing.” of TIME DECEDENT’S DEATH
→ NOTE: If the testator thought the property was The national law of the decedent,
his, although it is not really his, the legacy or that is, the law of his country or
devise is void, unless the property nationality — regardless of the place
subsequently becomes his. of execution or the place of death
Art. 795. The validity of a will as to its form depends upon Thus, a proviso in the will of an alien
the observance of the law in force at the time it is made. to the effect that his properties should
be distributed in accordance with
internal Philippine law, and not in
Kinds of Validity With Respect to Wills
accordance with his own national law,
Extrinsic validity = refers to the forms and solemnities
is void because said proviso
needed. From the
contravenes Art. 16, par. 2 of the Civil
→ Extrinsic validity may be seen also from two viewpoint
Code. (Bellis v. Bellis, L-23678, June
viewpoints, the viewpoint of TIME and the of PLACE
8, 1967). However, if the conflict rules
viewpoint of PLACE (or country) or
under the national law of the
→ Examples: the number of witnesses to a will; COUNTR
deceased refer the matter to the law of
the kind of instrument — whether public or Y
the domicile and the foreigner was
private — that is needed domiciled in the Philippines at the
moment of death, our courts will have
Intrinsic validity = refers to the legality of the to apply the Philippine internal law on
provisions in an instrument, contract or will. succession. (See Testate Estate of
→ Examples: whether or not the omission of a Christensen, L- 16759, Jan. 31, 1963).
child in the will renders the whole will void; (This is an instance where we
whether or not a [disposition in favor of a ACCEPT THE RENVOI which is the
friend impairs the legitime; whether or not a referring back to the forum of the
compulsory heir has been given his rightful problem.)
share]. Intrinsic validity may also be viewed

Law Governing Form of Wills follow that he also has testamentary power to do
if a law different from the law in force at the time of the so.
execution of the will goes into effect before or after the the right to make a will provided the statutory
death of the testator, such a law shall not affect the certain conditions are complied right to dispose
validity of the will, provided that such will was duly with; namely that the testator is of property by
executed in accordance with the formalities prescribed not prohibited by law to make a acts effective
by the law in force at the time it was made. will (Art. 796); that the testator is mortis causa (a
at least 18 years of age (Art. right given
BASIS: the formal validity of a will is to be judged not 797); and that the testator be of usually as a
by the law in force at the time of the testator’s death, or “sound mind” at the time of the consequence of
at the time the supposed will is presented in court for execution of the will (Art. 798), ownership and
probate, or when the petition is decided by the court, “soundness of mind” being respect for
but at the time the instrument was executed. present when the testator knows family
the NATURE of the estate to be relations).
Effect of changes after testator’s death disposed of, the PROPER
Upon the death of the testator, successional rights OBJECTS of his BOUNTY, and
arising from the will are vested in the persons called to the character of the
the inheritance either as heirs or as devisees or TESTAMENTARY ACT.
legatees. Active TC Passive TC the power of the
testamentifacc testamentifacc testator to
In other words, the title of such heirs, devisees or ion active ion passive designate the
legatees becomes a vested right, protected under the person or
due process clause of the Constitution against any capacity to capacity to persons who
subsequent change in the law which would have the MAKE a will or INHERIT/ are to succeed
effect of invalidating the will. codicil RECEIVE by him in his
virtue of a will property, and
Consequently, to allow retroactivity of effect to any Active transmissible
statutory change enacted after the death of the testator testamentary passive rights and
so as to invalidate a will which was perfectly valid at the capacity (TO testamentary obligations.
time of its execution since it has complied with all of the MAKE) is often capacity (TO
formalities prescribed by the law then in force would referred to as RECEIVE)
certainly be equivalent to a deprivation of property testamentary may also be
rights without due process of law. POWER referred to as
plain
A will perfectly valid at the time of its execution cannot testamentary
be invalidated by a law enacted after the death of the CAPACITY
testator; neither can a will totally void at the time of its
execution be validated by such subsequent legislation.
Art. 796. All persons who are not expressly prohibited
by law may make a will.
Effect of changes before testator’s death
General Rule: Any statutory change enacted after the
execution of the will but before the death of the testator Who Can Make Wills
cannot have any retroactive effect upon the formal ✓ The general rule is CAPACITY.
validity of a will.  It is incapacity that is the exception. only
persons who are expressly prohibited from
Exception: The only exception which is recognized is making a will are those who do not possess
when a retroactive effect is expressly declared by the the necessary age and mental requirements
statute itself or is necessarily implied from the language
used therein Two general qualifications:
(1) 18 years old or over;
SUBSECTION 2. (2) soundness of mind at the time the will is made.
TESTAMENTARY CAPACITY (3) not expressly prohibited by law to make a will.
AND INTENT
(Articles 796 to 803) ✓ A convict under civil interdiction is allowed to make
a will. This is because civil interdiction prohibits a
Nature of Testamentary Capacity = testamentary disposition of property inter vivos, not mortis
capacity refers to the ability as well as the power to causa.
make a will. ✓ Since the law does not disqualify them, it is
believed that spendthrifts or prodigals, even if
TESTAMENTARY CAPACITY TESTAMENTA under guardianship, can make a will provided they
RY POWER are at least 18 years old and are of sound mind.
 Art. 796 refers to “all persons,’’ but this should be
concerns the ability of the involves a
understood to refer only to natural persons, not
testator privilege under
juridical ones, like corporations. This is evident
the law
from the requirement of soundness of mind.
Hence, although a person may have testamentary
capacity to make a will, it does not necessarily

When capacity must exist. — Testamentary capacity It shall be sufficient if the testator was able at the time
must exist at the time of the execution of the will. of making the will, to know the nature of the estate to be
This is evident from the provisions of Arts. 798, 800, disposed of, the proper objects of his bounty, and the
and 801 of the Code. character of the testamentary act.
= The first paragraph gives the negative definition of
Art. 797. Persons of either sex under eighteen years of soundness of mind
age cannot make a will. = The second paragraph gives the affirmative
definition
Age Requirement — 18
Paras: Under Spanish Law, a person should have Requisites for Soundness of Mind (NPC)
passed his 18th birthday before he can make a will. (1) that testator knows the Nature of the estate to be
Under American Law, he can make a will on the day disposed of (character, ownership of what he is
just before his 18th birthday, on the ground that by that giving)
time, 18 years shall have passed. Obviously, we follow (2) that testator knows the Proper objects of his
the Spanish concept. bounty (by persons who for some reason expect
to inherit something from him — like his children)
Jurado: In view of the provision of Art. 13 of the Civil (3) that testator knows the Character of the
Code which states that when the law speaks of years, testamentary act (that it is really a will, that it is a
it shall be understood that it consists of three hundred disposition mortis causa, that it is essentially
sixty-five days, and that “in computing a period, the first revocable)
day shall be excluded, and the last day included,” a
person is said to have reached the age of eighteen Art. 800. The law presumes that every person is of
within the meaning of the law only at the sound mind, in the absence of proof to the contrary.
commencement of the day which is popularly known as
his birthday. The burden of proof that the testator was not of sound
mind at the time of making his dispositions is on the
✓ An individual, though a minor, may thus still make
person who opposes the probate of the will; but if the
a will, and the consent of his parents is not
testator, one month, or less, before making his will
required. Upon the other hand, if he be less than
18, his will should be considered void (not merely publicly known to be insane, the person who maintains
voidable), and this is true whether or not parental the validity of the will must prove that the testator made
consent had been obtained. it during a lucid interval
✓ in order that a person can make a will, it is Test of a sound mind

necessary that he must be at least eighteen years Testamentary capacity is determined objectively from
of age. Failure to conform with the requirement the standpoint of the purpose to be accomplished.
shall invalidate the will
Consequently, “soundness of mind” means ability of
Art. 798. In order to make a will it is essential that the the testator mentally to understand in a general way the
nature and extent of his property, his relation to those
testator be of sound mind at the time of its execution
who naturally have a claim to benefit from the property
left by him, and a general understanding of practical
Soundness of Mind effect of the will as executed.
It should be observed that the soundness of mind must
exist at the time of the execution of the will, not before The testator, however, must be able to understand the
nor after. business in which he is engaged when he makes his
will, and to appreciate the effect of the disposition made
Due execution of a will includes: by him of his property. If he knows the nature of the
✓ a determination of whether the testator was of estate to be disposed of, the proper objects of his
sound and disposing mind at the time of its bounty, and understands the character of the
execution, testamentary act, he has sufficient capacity to make a
✓ that he had freely executed the will will.
✓ and was not acting under duress, fraud,
menace or undue influence Presumption on Soundness of Mind
✓ and that the will is genuine and not a forgery Sanity is the general rule; insanity is the exception —
✓ that he was of the proper testamentary age hence, as a rule, he who alleges the testator’s insanity
and must prove the same.
✓ that he is a person not expressly prohibited by
law from making a will (Dorotheo v. CA; 320 Instances When the Testator is Presumed Insane
SCRA 12 1999) (1) If the testator, one month or less before making the
will was publicly known to be insane (here, the
Art. 799. To be of sound mind, it is not necessary that the person — proponent — who maintains the will’s
testator be in full possession of all his reasoning validity must prove that the will was made during a
faculties, or that his mind be wholly unbroken, lucid interval). (Art. 800, 2nd par.).
unimpaired, or unshattered by disease, injury or other (2) If the testator made the will after he had been
cause. judicially declared insane, and before such judicial

order had been set aside. (Torres v. Lopez, 48
Phil. 772).
Absence of Presumption
No presumption of insanity arises from:
(a) The presence of a mere delirium, since this is
temporary, nor from intoxication, for the same reason.
(b) The insanity of the parents and children of the
testator.
Art. 801. [Supervening of Incapacity or Capacity]

Supervening incapacity does not invalidate an effective
will, nor is the will of an incapable validated by the
supervening of capacity
Art. 802. A married woman may make a will without the

consent of her husband, and without the authority of the
court.
Capacity of Wife to Make a Will

The Article is to be applied only if the married woman
is atleast 18 years old, and is of sound mind at the time
of execution.
Thus, if a 17-year-old wife makes a will, same will be

null and void, even if the husband consents.
This discussion is without prejudice to “contractual

succession” in a marriage settlement between the
future spouses.
Art. 803. A married woman may dispose by will of aft her

separate property as well as her share of the conjugal
partnership or absolute community property
What Wife Can Dispose of in Her Will

 The wife cannot dispose of her husband’s capital,
in her will, unless she knows that the same is not
hers, and intends that her administrator or
executor will purchase the same from her
husband, for distribution to the heirs.
The law says that the wife can dispose of her share of
the conjugal property. Suppose she disposes of, say,
the conjugal house, how will this affect the inheritance?
ANS: It depends. Ordinarily, the heir gets only half of
the house, but if in the liquidation proceedings the
house is awarded entirely to the wife’s estate (the
husband receiving some other property, like cash), the
heir gets the whole house. It is understood that the
married woman must respect the legitime of her
compulsory heirs.

Forms of Wills, Witnesses to Wills Vice Dean Castillo-Taleon
SUBSECTION 3 Art. 804. Every will must be in writing and executed in a
FORMS OF WILLS language or dialect known to the testator.
(Articles 804 to 819)
Common Formalities
ORDINARY/NOTARIAL HOLOGRAPHIC
= one which is executed = a written will which Written Form of Wills
in accordance with the must be entirely written, ✓ Every will must be in writing.
formalities prescribed by dated, and signed by the
Arts. 804 to 808 of the hand of the testator Whether the will is ordinary or holographic, this
Civil Code himself, without the requirement is mandatory.
→ it is a written will, necessity of any
executed in a language witness. ✓ If the will is holographic, it is essential that it must
or dialect known to the be entirely written in the handwriting of the
testator, subscribed at testator himself.
the end thereof by the
testator himself or by the If the will is ordinary, so long as it is in writing it does
testator’s name written not matter on what material, whether on paper or
by some other person in parchment, it is written.
his presence and by his
express direction, The law does not specify that the testator himself must
attested and subscribed perform the act of writing. However, Art. 810 provides
by three or more that in the case of holographic wills, the will must be
credible witnesses in the written entirely in the handwriting of the testator
presence of the testator himself.
and of one another, all of
the pages of which are  Article 804 does not recognize oral wills.
signed, except the last,
on the left margin by the ‘Handwriting and Handwriting Experts’
testator or the person • The “handwriting” of a person may be proved by
requested by him to any witness who believes it to be the handwriting
write his name and by of such person because he has seen the person
the instrumental write, or has seen writing purporting to be his upon
witnesses, and which the witness has acted or been charged, and
numbered correlatively has, thus, acquired knowledge of the handwriting
in letters placed on the of such person. (Batulanon v. People, 2006).
upper part of each page, • The opinions of handwriting experts, although
containing an attestation helpful in the examination of forged documents
clause executed by the because of the technical procedure involved in the
witnesses, and properly analysis, are not binding upon the courts. Resort
acknowledged before a to these experts is not mandatory or indispensable
notary public by the to the examination or the comparison of
testator and the said handwriting. (G & M Philippines, Inc. v. Cuambot,
witnesses. 2006).
that which requires, the most important
among other things, an feature of which is its Language of Wills
attestation clause, and being written entirely, Art. 804 also requires that every will must be executed
acknowledgment before from the date to the in a language or dialect known to the testator. This
a notary public. signature, in the requirement is applicable both to ordinary and
handwriting of the holographic wills.
testator. Here, neither
an attestation clause nor AS TO PROOF OF WHAT IS THE LANGUAGE or
an acknowledgment DIALECT KNOWN TO THE TESTATOR: it is a matter
before a notary public is that may be established by proof aliunde.
needed.
[NOTE: Our new Civil Code does not recognize the
validity of nuncupative wills — wills orally made by the
testator in contemplation of death, and before
competent witnesses.].
Object of Formalities of Wills

(1) To close the door against bad faith and fraud;
(2) To avoid substitution of wills and testaments;
and
(3) To guarantee their truth and authenticity.

NOTARIAL WILL Manner of Signing
Generally speaking, the use of any signature intended
Art. 805. Every will, other than a holographic will, must by the testator to authenticate the instrument renders
be subscribed at the end thereof by the testator himself the will sufficiently signed by the testator.
or by the testator’s name written by some other person
in his presence, and by his express direction, and It matters not how imperfect or illegible the testator’s
attested and subscribed by three or more credible signature may be; it will be a sufficient signature if he
witnesses in the presence of the testator and of one intended it as his signature, and it should be manifest
another. that whatever he used as his signature was intended
for that purpose.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall Signature by another
also sign, as aforesaid, each and every page thereof, The fact that, the testator’s name is written by some
except the last, on the left margin, and all the pages other person in his presence, and by his express
shall be numbered correlatively in letters placed on the direction, should be stated in the attestation clause.
upper part of each page. Requisites:
(1) it is the testator’s name that must have been
written by the third person;
The attestation shall state the number of pages used
upon which the will is written, and the fact that the
Consequently, if what is written is the third
testator signed the will and every page thereof, or person’s own name and not that of the
caused some other person to write his name, under his testator, the will is not valid.
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the (2) testator’s name must have been written in his
will and all the pages thereof in the presence of the presence;
testator and of one another. (3) the third person must have affixed the
testator’s name at his express direction;
If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. “Express direction” — means that the
delegate must be expressly authorized to do
Special Formalities of Ordinary Wills so. Hence, mere knowledge on his part that
In the execution of an ordinary will the following the will is being signed in his behalf or his
formalities must be complied with: acquiescence to such an act is NOT sufficient.
(1) The will must be in writing; → However, an express direction may be
(2) The will must be written in a language or dialect given by the testator even without using words
known to the testator; — mere clear gestures or motions or conduct
(3) The will must be subscribed at the end thereof by is sufficient.
the testator himself or by the testator’s name
written by some other person in his presence and (4) this fact should be stated in the attestation
by his express direction; clause; and
(4) The will must be attested and subscribed by three (5) it should take place in the presence of the
or more credible witnesses in the presence of the instrumental witnesses.
testator and of one another;
(5) The testator or the person requested by him to NOTE: Neither the notary nor any of the attesting
write his name and the instrumental witnesses of witnesses can sign in behalf of the testator.
the will, shall also sign each and every page
thereof, except the last, on the left margin; It is not necessary that the person signing in favor of
(6) All the pages of the will shall be numbered the testator must have testamentary capacity.
correlatively in letters placed on the upper part of
each page; Place of signature
(7) The will must contain an attestation clause; and The law fixes the location of the signature and requires
(8) The will must be acknowledged before a notary that it must be at the foot or end of the will.
public by the testator and the witnesses.
The purpose of such requirement is not only to show
(1) Subscription by Testator that the testamentary purpose therein expressed is
Subscription refers to the manual act of the testator completed, but also to prevent any opportunity for fraud
and also of the instrumental witnesses of affixing their or interpolations between the written matter and the
signatures to the instrument. signature.
As applied to the testator, the purpose of the statutory The position of the signature at the end of the will
requirement of a signature is two-fold: furnishes in itself internal evidence of finality or
(1) it is to identify the testator; and completion of intent
(2) authenticate the documents
“END” of the will — means the LOGICAL, not the
physical end of the will. Thus, if a will starts on the 1st

page, continues on the 3rd page, but is concluded on contemporaneous. In either case, the will is valid
the 2nd page, the end of the 2nd page is the logical end. Gabriel v. Mateo, 51 Phil. 216).
Presence of witnesses [NOTE: As will be seen later on, while the attesting
must be done in the presence of all, the act of
(2) Attestation and Subscription by Witnesses acknowledging before the notary public does not have
An instrumental witness may be defined as one who to be contemporaneous. It does not even have to be
takes part in the execution of an instrument or writing. done in the presence of all of them, since the law does
not mention this as a requirement; neither does the law
Attestation of the will consists in the act of the require that execution and acknowledgment of a will be
witnesses of witnessing the execution of the will in made on the same day (Testate Estate of A. Ledesma,
order to see and take note mentally that such will has L-7179, June 30, 1955).
been executed in accordance with the requirements
prescribed by law. Meaning of presence
→ Its purpose is to render available proof during “in the presence of the testator and of one
the probate proceedings that the will has been another”
executed in accordance with the
requirements prescribed by law and that the The purpose of such a requirement is evidently to
instrument offered for probate is authentic. prevent the substitution of a surreptitious will; and to
make more difficult the invention of false testimony by
Subscription, on the other hand, as it is used in this the witnesses, since they may be the witnesses of one
part of the Code, consists in the manual act of the another.
instrumental witnesses in affixing their signatures to the
instrument. Its only purpose is identification. The true test of presence of the testator and the
witnesses in the execution of a will is not whether they
ATTESTATION SUBSCRIPTION actually saw each other sign, but whether they might
an act of the senses an act of the hand have seen each other sign, had they chosen to do so,
mental act mechanical act considering their mental and physical condition and
purpose is to render the only purpose is position with relation to each other at the moment of
available proof during identification inscription of each signature (Jaboneta v. Gustilo).
the probate of the will,
not only of the “In the presence” does not necessarily require actually
authenticity of the will, seeing, but possibility of seeing without any physical
but also of its due obstruction.
execution
consists in witnessing the signing of the (3) Marginal Signatures
the testator’s execution witnesses’ names upon General Rule: Under this requirement, it is essential
of the will in order to see the same paper for the that all of the pages of the will, except the last, should
and take note mentally purpose of identifying be signed not only by the testator but also by all of the
that those things are such paper as the will instrumental witnesses.
done which the statute which was executed by
requires for the the testator. Consequently, if even one of the pages of the will does
execution of a will and not contain the required marginal signature or the
that the signature of the pages are not signed by the witnesses although they
testator exists as a fact are signed by the testator or such pages are not signed
Attestation clause may Subscription must by the testator although they are signed by the
be placed at the always be at the logical witnesses, the will which is offered for probate shall be
beginning of the will. end of the will. disallowed.
Placing it at the end is
only for convenience. Mandatory part of the requirement: the signing on
every page in the witnesses’ presence.
Directory part of the requirement: the place of
Order of Signing
signing , i.e. the left margin; the signature can be
Where the execution of the will by the testator and the affixed anywhere on the page death.
signing of the same by the subscribing witnesses
constitute one continuous transaction, the signing by Exceptions: (When the rule that pages of the will shall
each, taking place in the presence of the others, is be signed on the left margin by the testator and the
sufficient as is to all intents and purposes an attestation witnesses is dispensed with)
by the subscribing witnesses to a fact which has (1) in the last page, when the will consists of two
already taken place (Gordon vs. Parker). or more pages;
(2) when the will consists of only one page; and
As long as the signing is done within the presence of (3) when the will consists of two pages, the first
one another, it really does not matter much whether the of which contains all the testamentary
witnesses signed ahead of or after the testator — as dispositions and is signed at the bottom by the
testator — as long as the signing is sufficiently testator and the witnesses and the second

contains only the attestation clause duly witnesses, or any other casualty, they may still be
signed at the bottom by the witnesses. proved.
(2) To render available proof that there has been a
The law says “page” not sheet. (A sheet has two pages, compliance with the statutory requisites for the
the front and reverse sides; if both are used, both must execution of the will.
be paged). (3) And, incidentally, to minimize the commission of
fraud or undue influence.
If the last page contains ONLY the attestation clause,
the testator need not sign on the margin. “the attestation clause is a memorandum of facts
attending the execution of the will required by law to be
Whenever the marginal signatures are required, made by the attesting witnesses, and it must
although the law says “left margin,” the purpose is necessarily bear their signatures.”
served if they are on the “right, top, or bottom margin,” → Since the attestation clause is a declaration of
for the only purpose is to identify the pages used, and the instrumental witnesses and not of the
thus prevent fraud. testator, it is, therefore, clear that it must be
signed by the witnesses, not by the testator.
Failure to have the marginal signatures of the testator
and of the witnesses, when needed, is a FATAL defect. As a matter of sequence or continuity, it must be
located right after the signature of the testator at the
Location of Signatures end of the will. There is, however, no statutory
The law requires that the signatures of the testator and provision which would make this rule a mandatory
the instrumental witnesses should be on the left margin requirement; hence, it is elastic or flexible in character.
of every page of the will except the last.
The absence of the attestation clause is a fatal defect.
According to the weight of authority, this requirement → Moreover, if the attestation clause is not
regarding the location of the marginal signatures is not signed by the attesting witnesses at the
mandatory in character, provided, of course, that such bottom thereof, the will is void since omission
signatures are present in every page of the will, except negates the participation of said witnesses.
the last.
Contents
(4) Numbering of Pages It is, therefore, clear that there are three essential facts
These are written correlatively in letters (or Arabic which must necessarily appear in the attestation clause
numerals or any other form of identification) placed on in order that it will properly constitute a real certification
the upper part of each page. by the instrumental witnesses that the formalities which
are required by law in the execution of an ordinary will
The principal object of this requirement is to forestall have been complied with. These essential facts are:
any attempt to suppress or substitute any of the pages (1) The number of pages used upon which the
of the will. will is written;
(2) The fact that the testator signed the will and
Again, it must be observed that this requirement is every page thereof, or caused some other
mandatory in character. However, it is not necessary person to write his name, under his express
when all of the dispositive parts of a will are written on direction, in the presence of the instrumental
one sheet only. Neither is it necessary that the pages witnesses; and
of the will shall be numbered correlatively in letters (3) The fact that the instrumental witnesses
such as “one,” “two” or “three.” According to the weight witnessed and signed the will and all the
of authority, substantial compliance with the statutory pages thereof in the presence of the testator
requirement is sufficient. and of one another.
(5) Attestation Clause Effect of defects or imperfections

The attestation clause is a memorandum or record of General Rule: The will is invalidated if the defect of the
facts wherein the witnesses certify that the instrument attestation clause is substantial in character.
has been executed before them, and that it has been
executed in accordance with the formalities prescribed The defect is substantial when:
by law. (1) goes into the very essence of the clause itself;
or
It is made for the purpose of preserving in permanent (2) consists in the omission of one, some or all of
form, a record of the facts attending the execution of a the essential facts which, according to law,
will, so that in case of failure of the memory of the must be stated in such clause, and such
instrumental witnesses or in case such witnesses are omission cannot be cured by an examination
no longer available, such facts may still be proved. of the will itself
Purposes of the attestation clause Exception: Doctrine of Liberal Interpretation; If the

(1) To preserve in permanent form a record of the defects of the attestation clause do not go into the very
facts attending the execution of the will so that in essence of the clause itself or they consist in defects
case of failure of the memory of the subscribing or imperfections in the form of the attestation or in the
language used therein, such defects are merely formal

in character, as a consequence of which the validity of the law that they had executed and subscribed to the
the will is not affected, provided that it is proved that will as their own free act or deed. (Azuela v. CA, 2006)
such will was in fact executed and attested in If a will is duly acknowledged before a notary public,
substantial compliance with all the requirements of Art. there is in its favor the presumption of regularity
805 of the Code. (Gonzales v. Court of Appeals, 1979).
Requisites: ‘Acknowledgment’ Defined: This is the act of one

(1) defects and imperfections must be in the form who has executed a deed in going before some
of the attestation or in the language used competent officer or court and declaring it to be his act
therein; or deed. It involves an extra-step undertaken whereby
(2) there must be no bad faith, forgery, fraud, or the signor actually declares to the notary that the
undue and improper pressure and influence in executor of the document has attested to the notary
the execution of the attestation clause; and that the same is his own free act and deed (Azuela v.
(3) it must be proved that the will was in fact CA, 2006).
executed and attested in substantial
compliance with all the requirements of Art. A jurat is that part of an affidavit whereby the notary
805. certifies that before him, the document was subscribed
and sworn by the executor (Azuela v. CA, 2006).
CAN BE DISREGARDED
The rule must be limited in disregarding those defects Ordinarily, the notary public is not required, not even
that can be supplied by an examination of the will itself: allowed, to read the will, or to know the contents of the
(1) whether all the pages are consecutively will, unless the testator permits him to do so. It should
numbered; be remembered that the notary public is not the person
(2) whether the signatures appear in each and every acknowledging the will, it is he before whom it is
page; whether the subscribing witness are three; acknowledged.
and → The only instance when the notary public is
(3) whether the will was notarized. required to read the will is in the case
contemplated by Art. 808 — regarding a blind
CANNOT BE DISREGARDED testator.
All these are facts that the will can reveal; and defects → Disqualification of Notary Public: The
or even omissions concerning them in the attestation notary public before whom the will is
clause can be safely disregarded. BUT the: acknowledged cannot be one of the three
(1) total number of pages; and witnesses to said will, in view of the absurdity
(2) whether all persons required to sign did so in of one person acknowledging something
the presence of each other must substantially before himself.
appear in the attestation clause,
being the only check against perjury in probate The testator and the instrumental witnesses do not
proceedings (Caneda v. CA). have to make the acknowledgment in the presence of
one another. This is required only in the attestation, not
Other Comments on Formalities of Notarial Wills in the acknowledgment.
It is not necessary that the notarial will be dated. Even
if erroneous, the date will not defeat a notarial will since A notarial will is NOT a public instrument, although
the law does not even require it to be dated. acknowledged. This is evident from the fact that unlike
→ [NOTE: The holographic will on the other in the case of public instruments, “the notary public
hand has to be dated, otherwise it is null and shall not be required to retain a copy of the will, or file
void.]. another, with the Office of the Clerk of Court.”
Essential requirements for notarial will other than those Art. 807. If the testator be deaf, or a deaf-mute, he must
mentioned in Arts. 804 and 805: personally read the will, if able to do so; otherwise, he
(1) Art. 806 (acknowledgment before notary shall designate two persons to read it and communicate
public) to him, In some practicable manner, the contents
(2) Arts. 807 and 808 (special cases — when the
thereof.
testator is deaf, mute, or blind).
Rules When Testator is Deaf, or a Deaf-Mute
Art. 806. Every will must be acknowledged before a • The Article speaks of a testator who is deaf or a
notary public by the testator and the witnesses. The deaf-mute.
notary public shall not be required to retain a copy of the • If he cannot read the will (illiterate), two persons
will, or file another with the office of the Clerk of Court. must communicate its contents to him.
• The two persons designated need not be the
Notarial Acknowledgment attesting witnesses.
Although the law speaks of “every will,” it is apparent • That this Article has been complied with must be
that the provision prescribing this requirement is proved in the probate proceedings. And this is why
applicable only to ordinary wills. it would seem wise to state either in the notarial
acknowledgment or in the attestation clause itself
The acknowledgment coerces the testator and the that the Article has been complied with
instrumental witnesses to declare before an officer of

Art. 808. If the testator is blind, the will shall be read to ✓ Substantial compliance is acceptable where the
him twice; once, by one of the subscribing witnesses, purpose of the law has been satisfied, the reason
and again, by the notary public before whom the will is being that the solemnities surrounding the
acknowledged. execution of a will are intended to protect the
testator from all kinds of fraud and trickery but are
never intended to be so rigid and inflexible as to
Rules if the Testator is Blind
destroy the testamentary privilege.
Note that the reading is twice —
(1) once by one of the subscribing witnesses,
Although there should be strict compliance with
(2) and once by the notary public.
the substantial requirements of the law in order to
ensure the authenticity of the will, the formal
Q: Should this will be signed and executed in the imperfections should be brushed aside when they
presence of the notary public? do not affect its purpose and which, when taken
A: The law is silent on this point, but it would seem that into account, may only defeat the testator’s will.
for the better protection of the testator, it is advisable to
have same done before the notary public so that the How Substantive Defect Can Be Cured: It is believed
blind man may have the benefit of the notary public’s that defects of substance can be cured only by
participation even before he signs the will. evidence WITHIN the will itself — not by evidence
aliunde (extrinsic evidence).
Q: If a testator is a deaf-mute and also blind, may he
still make a will? Doctrine of Liberal Interpretation; Limitation
A: No, unless in some way, the contents thereof may It must be observed that the doctrine of liberal
properly be communicated to him in accordance with interpretation, as enunciated in Art. 809, can only be
the legal requirements. applied to defects or imperfections either in the form of
the attestation or in the language used therein.
Article 808 of the Civil Code applies not only to blind
testators but also to those who, for one reason or It cannot be applied to defects which are substantial,
another, are incapable of reading their wills. such as when there is an absolute omission in the
attestation clause of one, or some, or all of these
Art. 809. In the absence of bad faith, forgery, or fraud, or essential facts, which, according to the law, must be
undue and improper pressure and influence, defects stated in such clause, and such an omission cannot be
and imperfections in the form of attestation or in the cured by an examination of the entire will itself. It is
language used therein shall not render the will invalid if evident that such an omission cannot be classified as
it is proved that the will was in fact executed and a defect or imperfection in the form of the attestation or
in the language used therein.
attested in substantial compliance with all the
requirements of Article 805.
Doctrine of Liberal Interpretation
Requisites for Art. 809 to apply:

(1) defects and imperfections must be in the form
of the attestation or in the language used
therein;
(2) there must be no bad faith, forgery, fraud, or
undue and improper pressure and influence in
the execution of the attestation clause; and
(3) it must be proved that the will was in fact
executed and attested in substantial
compliance with all the requirements of Art.
805.
(4) the fact of such execution and attestation is
proved.
✓ If all the requisites are present, the defects of
imperfections will not render the will invalid.
NOTE: The law speaks not of defects of substance but

defects and imperfections —
1) in the FORM of attestation, or
2) in the LANGUAGE used therein
Effect of Substantial Compliance

This Article provides the rule for substantial compliance
that is, as long as the purpose sought by the attestation
clause is obtained, the same should be considered
valid.

HOLOGRAPHIC WILL The law does not specify a particular location where the
date should be placed in the will. The only
Art. 810. A person may execute a holographic will which requirements are that the date be in the will itself and
executed in the hand of the testator.
must be entirely written, dated, and signed by the hand
of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not be SIGNED
witnessed. ✓ The full or customary signature is needed, hence,
the full name is not required.
A holographic will is one entirely written, dated, and ✓ The signature must appear at the end of the will.
signed by the hand of the testator himself, without the This is evident from the fact that additional
attestation of any witness nor acknowledgement before dispositions can be “written below his signature”
a notary public. ✓ The testator may sign the will with his initials, or
nickname, or appellation. All that the law requires
Special Formalities of Holographic Wills is that such signature must be entirely signed by
(1) The will must be entirely written by the hand of the the hand of the testator.
testator himself;  It is void if the signature of the testator is a mark,
(2) The will must be entirely dated by the hand of the such as a cross or even a thumbmark
testator himself; and
(3) The will must be entirely signed by the hand of the Rule in Case of Insertions or Interpolations By
testator himself; and Third Persons
(4) The will must be executed in a language or dialect ✓ If the insertion was made after the execution of the
known to the testator. will, but without the consent of the testator, such
(5) It must be made with animus testandi. insertion is considered as not written, because the
validity of the will cannot be defeated by the malice
Entirely Written, Dated and Signed or caprice of a third person.
✓ In order that a holographic will may be admitted to
probate, it is essential that it must be entirely ✓ If the insertion was made after the execution of the
written, dated and signed in the handwriting of the will with the consent of the testator, the will
testator himself. remains valid but the insertion is void.
 The law exacts literal compliance with these  If the insertion was made after the execution of the
requirements. Hence, the doctrines of liberal will, and such insertion is validated by the testator
interpretation and substantial compliance as by his signature thereon, it becomes part of the
applied to ordinary or notarial wills cannot be will, and therefore, the entire will becomes void,
applied to holographic wills because of failure to comply with the requirement
that it must be entirely written by the hand of the
REASON: no attestation clause testator.
PURPOSE: of the law is obvious. In addition to insuring  If the insertion was made contemporaneous to the
and safeguarding the authenticity of the holographic execution of the will, then the will is void because
will, it will also serve to deter or prevent any possible it is not entirely written by the hand of the testator.
insertion or interpolation by others or any possible
forgery • It must also be observed that Art. 810 does not
require that the testator must sign the will with his
WRITTEN full signature, although this is required when it
 if the holographic will is partly printed or comes to the authentication of an insertion,
typewritten and partly written in the handwriting of cancellation, erasure or alteration.
the testator, it is clearly void.
 The same is also true in case there are insertions Requirement of Testamentary Character
or interpolations made by a third person at the time There must be intent to make a will – to dispose mortis
of the execution of the will. The will in such case is cause appears expressly or at least can be inferred
void. from the terms of the will.
An instrument is testamentary in character where from

DATED
the language used, it is apparent that the deceased
✓ The will must be dated — so that in case of a intended to make a disposition of his property or some
revision of the Will, that of later date should be part thereof, to be effective at his death.
preferred as expressing truly the last Will and
testament. Other Features of the Holographic Will
✓ The date must be complete, that is, it must contain • No witnesses are required. [If there be witnesses
the year, month, and day. or an attestation clause, the witnesses and the
 If the date is not given, the Will is null and void, clause will just be disregarded, and considered as
since the date in the holographic Will is a mere surplusage]
mandatory requisite.
• No marginal signatures on the pages are required.
 The same is also true if the date used is the printed
• No acknowledgment is required.
date of a diary.

• In case of any insertion, cancellation, erasure or (3) Whether the decedent had the necessary
alteration, the testator must authenticate the same testamentary capacity at the time the will was
by his full signature. (Art. 814). executed; and
• May be made in or out of the Philippines, even by (4) Whether its signing was the voluntary act of the
Filipinos. (See Art. 810). (Note that Art. 815 is only decedent.
permissive.)
• May be made even by a blind testator, as long as General Rule: The original of the holographic will
he is literate, at least 18, and possessed of a should be presented to the probate court for visual
sound mind. examination. The law, considering the special nature of
• Even the mechanical act of drafting a holographic holographic wills as well as the special requirements
will may be left to someone other than the testator, for their probate, regards the document itself as
as long as the testator himself copies the draft in material proof of authenticity.
his own handwriting, dates it, and signs it. (See
Art. 810). Exception: A photostatic/xerox copy of a lost or
destroyed holographic will may be admitted.
Art. 811. In the probate of a holographic will, it shall be
Effect if Holographic Will is Lost or Destroyed
necessary that at least one witness who knows the
(Paras)
handwriting and signature of the testator explicitly
If a holographic will has been lost or destroyed without
declared that the will and the signature are in the intent to revoke, and no other copy is available, it CAN
handwriting of the testator. If the will is contested, at NEVER be probated because the BEST and ONLY
least three of such witnesses shall be required. evidence therefor is the HANDWRITING of the testator
in SAID will.
In the absence of any competent witness referred to in
the preceding paragraph, and if the court deems it Evidence of sample handwritten statements of the
necessary, expert testimony may be resorted to. testator cannot be admitted because there would be no
handwritten will with which to make a COMPARISON.
Probate of Holographic Wills
= means the allowance of a will by the court after its ✓ It is believed however that a photostatic copy of
due execution has been proved. the holographic will may be allowed because here,
there can be a COMPARISON. Evidently, the
✓ Proof of identity of the signature and probate of a lost or destroyed will referred to in the
handwriting of the testator is important, last paragraph of Art. 830 can only refer to a
otherwise, the will cannot be valid. notarial, not a holographic will.
The probate may be — (Jurado)

(1) uncontested Because of the special nature of holographic wills as
(2) or contested stated in Art. 810 of the Civil Code as well as the
special requirements for their probate as stated in Art.
If uncontested, at least one identifying (not 811 of the same Code, it is clear that the law regards
necessarily a subscribing) witness is required to avoid the document itself as material proof of authenticity.
the possibility of fraud.
✓ If no witness is available, experts may be resorted Consequently, a holographic will cannot be probated
to. unless the document itself is presented to the probate
court for examination and unless there is compliance
If contested, at least three such identifying witnesses with the special requirements stated in Art. 811.
should be required.
✓ If none are available, experts may be called upon, It is, however, possible that a photostatic copy, or
otherwise the will of the testator may be frustrated even a mimeographed or carbon copy may be
thru no fault of his own. substituted for the original document. This is so,
✓ Upon the other hand, even if ordinary witnesses because, after all, in these cases, compliance with the
are available, still if they are unconvincing, the requirements stated in Art. 811 would still be possible.
court may still, and in fact should resort to The authenticity of the handwriting and signature of the
handwriting experts. testator may still be examined and tested by the
probate court.
Nevertheless, in the absence of any competent
witness, expert testimony may be resorted to, if the Matters to be proved by the Testimony of Witness
court deems it necessary. Witness must EXPLICITLY DECLARE that
(1) He knows the handwriting of the testator;
In a petition to admit a holographic will to probate, the (2) The will is in the handwriting of the testator; and
only issues to be resolved are: (3) The signature is in the handwriting of the testator.
(1) Whether the instrument submitted is, indeed, the
decedent’s last will and testament; The witness presented do not need to have seen the
(2) Whether said will was executed in accordance with execution of the will, their presence not being required
the formalities prescribed by law; by law (Gan v. Yap)

Art. 812. In holographic wills, the dispositions of the A: No, only the alteration is VOID. However, if what was
testator written below his signature must be dated and altered was the DATE or the SIGNATURE, the
signed by him in order to make them valid as alteration without the full signature makes the WHOLE
testamentary dispositions. will VOID
Dispositions Written Below the Signature Law Which Governs Formal Validity of Wills
A testator may draft one part of a holographic will at As a general rule, the formal validity of a will shall be
one time, and another part at another time. It may even governed by the law of the country in which it is
happen that the latter dispositions are made even after executed.
the signature had been written. Hence, the necessity
for a provision like Art. 812. This rule is expressed in the first paragraph of Art. 17
of the Code, which provides that “the forms and
Dispositions after the signature must be both DATED solemnities of contracts, wills and other public
and SIGNED by the testator to be valid. If SIGNED — instruments shall be governed by the laws of the
but NOT dated, or if DATED but NOT signed, the country in which they are executed.”
additional dispositions are void, for lack of an essential
requisite. Note that said dispositions are really Law Which Governs Intrinsic Validity of Wills
considered independent of the will itself. The intrinsic validity of wills is governed by the national
law of the person whose succession is under
consideration.
Art. 813. When a number of dispositions appearing in a
holographic will are signed without being dated, and the This is the precept or principle which is enshrined in the
last disposition has a signature and date, such date second paragraph of Art. 16 of the Civil Code.
validates the dispositions preceding it, whatever be the According to this provision, “intestate and testamentary
time of prior dispositions. succession, both with respect to the order of
succession and to the amount of successional rights
Rules for Curing Defects and to the intrinsic validity of testamentary provisions
LAST PRECEDING EFFECT shall be regulated by the national law of the person
DISPOSITION DISPOSITIONS whose succession is under consideration, whatever
MADE BY TESTATOR HIMSELF may be the nature of the property and regardless of the
SIGNED but country wherein said property may be found.”
VALIDATED
NOT DATED
VOID Art. 815. When a Filipino is in a foreign country, he is
(This can be authorized to make a will in any of the forms established
NOT SIGNED inferred from by the law of the country in which he may be. Such will
SIGNED and
but DATED the wording of may be probated in the Philippines.
DATED
the law.)
Where testator is a Filipino
NOT SIGNED
FILIPINO CITIZEN
and NOT VOID
WHERE EXECUTED LAW THAT WILL
DATED
GOVERN
NOT SIGNED and NOT DATED
VALID in the Philippines law of the Philippines
but written on the SAME DATE
outside of the law of the country in
DONE BY ANOTHER
Philippines which it is executed
remain VOID if in themselves
W/O testator’s
VOID; and remain VALID if in
consent Q: May a will executed in a foreign country in
themselves VALID.
remain VOID if in themselves accordance with the formalities prescribed by the law
VOID; and remain VALID if in of the Philippines, by a Filipino citizen, who is either a
themselves VALID. resident or a transient in that country, be probated in
W/ testator’s the Philippines?
consent A: NO. [It is rather unfortunate that such a situation is
because the latter disposition is
not really HOLOGRAPHIC (not not covered by the provision of Art. 815 nor by any
done by the testator himself) other provision of the Civil Code.] It is submitted,
however, that a Filipino, who is either a resident or a
transient in a foreign country, may execute a will in that
Art. 814. In case of any insertion, cancellation, erasure country in accordance with any of the forms
or alteration in a holographic will, the testator must established by the law of the Philippines.
authenticate the same by his full signature.
Q: If a will is probated abroad, does it have to be
Authentication of Correction by Full Signature probated again in the Philippines?
Full signature here means the full or usual or A: In one sense, there is no need of an ordinary or
customary SIGNATURE usual probate here. What is required however is that
there must be a proceeding here to prove that indeed
Q: Suppose there is an alteration without the full the will had already been probated abroad. In other
signature, is the whole will void? words, the rule is the same as in proving the existence

of a foreign judgment (Yu Chengco v. Tiaoqui, 11 Phil. Art. 818. Two or more persons cannot make a will jointly,
598) or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.
NOTE: Of course, if the foreign will has not yet been
probated abroad, a probate must be had here, and this Joint Wills
time proof must be presented that indeed the will had A “joint” will is defined as a single testamentary
been executed in accordance with the law established instrument which contains the wills of two or more
in said foreign country. In such a case, there is naturally persons, jointly executed by them, either for their
no necessity of showing that a previous probate had reciprocal benefit or for the benefit of a third person.
been had abroad (Dalton v. Giberson, L-4113, June 30,
1962). “Mutual” wills are wills executed pursuant to an
agreement between two or more persons to dispose of
NOTE: It should be observed that in the absence of their property in a particular manner, each in
contrary proof, foreign laws on the formalities of a will consideration of the other.
are presumed to be the same as those existing in the
Philippines (Miciano v. Brimo, 50 Phil. 867). It has also “Reciprocal” wills are wills in which the testators name
been held that if there is no proof regarding the foreign each other as beneficiaries under similar testamentary
law of probate procedure and no proof that the foreign plans.
court that approved the will is indeed a probate court, it
will be presumed that the proceedings in the matter of NOTE: Mutual or Reciprocal wills are not prohibited
probate in said court are the same as those provided provided they are contained in separate instruments.
for under Philippine laws (Testate Estate of Suntay, L- The prohibition under Art 818 is the execution of a joint
3087, July 31, 1964). will or a will contained in the same instrument, either
for reciprocal benefit or for the benefit of third person.
Art. 816. The will of an alien who is abroad produces
effect in the Philippines if made with the formalities Reasons Why Joint Wills are VOID
prescribed by the law of the place in which he resides, • To allow as much as possible SECRECY, a will
or according to the formalities observed in his country, being a purely personal act.
or in conformity with those which this Code prescribes. • To prevent undue influence by the more
aggressive testator on the other.
Art. 817. A will made in the Philippines by a citizen or • In case of death of the testators at different times,
subject of another country, which is executed in probate would be harder.
accordance with the law of the country of which he is a • It militates against the right of a testator to revoke
citizen or subject, and which might be proved and his will at any time.
allowed by the law of his own country, shall have the (Example: One testator would be prevented from
revoking by an overt act, like tearing or burning, for
same effect as if executed according to the laws of the
the other may not agree.)
Philippines.
• In case of a husband and wife, one may be
tempted to kill the other.
Where testator is an alien
• A will is purely personal and unilateral act.
ALIEN CITIZEN
• Contrary to the revocable character of a will.
WHERE LAW THAT WILL GOVERN
EXECUTED
Q: A joint will (executed by a husband and his wife) was
(1) law of the Philippines (Art 17)
erroneously probated by the RTC. There being no
appeal, the judgment became final. Can the joint will be
(2) law of the country of which
given effect?
he is a citizen (subject to Art
A: Yes, for while joint wills are prohibited and should
in the 817)
have been disallowed, still in this case, the judgment
Philippines → it is a prerequisite that the
had already become final. This is NOT a case of lack
will which is presented for
of jurisdiction: it is simply an instance of an erroneous
probate could have been
but valid judgment. Otherwise stated, this is merely an
proved and allowed by the
error in law, not an error in jurisdiction.
law of his own country
(1) law of the country in which it
is executed (Art 17) Art. 819. Wills, prohibited by the preceding article,
(2) law of the place in w/c he executed by Filipinos in a foreign country shall not be
outside of the resides (subject to Art 816) valid in the Philippines, even though authorized by the
Philippines (3) law of his country (subject to laws of the country where they may have been
special rules in Art 816) executed.
(4) laws of the PH (subject to Art
816) Effect of Joint Wills Executed Abroad
• Note that Art. 819 is an expression of public policy,
and is clearly one exception to the rule of lex loci
celebrationis.

Under Art. 819 of the Code joint wills executed by Credible Witness = means competent witness, that is,
Filipinos in a foreign country shall not be valid in the such person as are not legally disqualified from
Philippines, even though authorized by the laws of the testifying in courts of justice by reason of mental
country where they may have been executed. It is incapacity, interest, or the commission of crimes, or
evident that this rule is an exception to the rule stated other cause excluding them from testifying generally.
in Art. 815. It is, however, in conformity with the
provision of the third paragraph of Art. 17 of the Civil Q: Is it necessary that the witnesses must know the
Code which states: “Prohibitive laws concerning contents of the will?
persons, their acts or property, and those which have A: NO. The law does not require it. All that the law
for their objects public order, public policy and good requires is that they must attest and subscribe the will
customs shall not be rendered ineffective by laws or in the presence of the testator and of each other. To
judgments promulgated, or by determinations or attest and subscribe do not mean that they must read
conventions agreed upon in a foreign country.” the will or comprehend the contents thereof. Hence,
even if the will is written in a dialect or language
• Note, however, that the prohibition refers only to unknown to them, the requirements of the law are still
Filipinos. Hence, if made by foreigners abroad, complied with
and valid in accordance with Art. 816, the same
should be considered as valid here.
Art. 821. The following are disqualified from being
witnesses to a will:
Q: How about joint wills executed by foreigners? (1) Any person not domiciled in the Philippines;
A.:
(2) Those who have been convicted of falsification of a
• if executed abroad and valid in accordance with
document, perjury or false testimony.
Art. 816, same should be considered valid here.
(This is a clear implication from Art. 819.)
Disqualifications of Witnesses
It must be noted that the provision of Art. 819 is Under Arts. 820 and 821, the following are disqualified
applicable only to joint wills executed by Filipinos in a from being witnesses to a will:
foreign country; it does not apply to joint wills executed (1) Any person not domiciled in the Philippines;
by aliens. (Jurado) (2) those who have been convicted of falsification of a
document, perjury or false testimony;
(3) any person who is not of sound mind;
• if executed in the Philippines, same should be
(4) any person who is less than eighteen years of age;
considered VOID because although apparently
(5) any person who is blind, deaf, or dumb; and
allowed under Art. 817, still Art. 818, which refers
(6) any person who cannot read and write.
specifically to joint wills, and which should be
considered as an expression of public policy,
The purpose of the law in disqualifying the persons
should prevail.
mentioned in Art. 821 from being instrumental
witnesses is evident. A person not domiciled in the
SUBSECTION 4 Philippines will practically be useless during the
WITNESSES TO WILLS probate proceedings, while a person convicted of
(Articles 820 to 824) falsification of a document, perjury or false testimony is
unworthy of credence.
Art. 820. Any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and Rules Regarding Convicted Witnesses
able to read and write, may be a witness to the execution Note that regarding convicts, only three crimes have
of a will mentioned in Article 805 of this Code. been mentioned:
a) falsification of a document (whether the document
Qualifications for Witnesses to Notarial Wills be public, commercial, or even private)
At the time of attesting (Arts. 820 and 821), the witness b) perjury
must: c) false testimony
(1) be of sound mind (Art. 820)  By implication, conviction for other crimes such as
(2) be at least 18 years (Art. 820) murder or arson or rape cannot be said to be a
(3) be able to read and write (Art. 820) disqualification.
(4) not be blind, deaf, or dumb (Art. 820)
(5) be domiciled in the Philippines (Art. 821) Effect of Pardon
(6) not have been CONVICTED (by final judgment) of ✓ If the pardon was given because of the man’s
FALSIFICATION of a document; PERJURY; or innocence, as when somebody else had been
FALSE TESTIMONY (Art. 821) proved to be the really guilty person, he can now
act as a witness to a will. This is because there is
The word “credible” with reference to the witnesses of no mental dishonesty.
a will does not have the same meaning of “credible  If the absolute pardon was an act of Executive
witness” under the Naturalization Law. In wills, a grace of clemency, it is submitted that the
credible witness must have all the qualifications disqualification remains, for even an absolute
specified by the Civil Code (Gonzales v. Court of pardon does not remove civil consequences. The
Appeals. L-37453, May 25, 1979). would-be witness still has a taint of mental
dishonesty.

Disqualification of Notary Public Concerned EFFECTS:
The notary public before whom the notarial will is (1) He shall be admitted as a witness; but
acknowledged is disqualified to be a witness to said (2) The devise or legacy, so afar only as
will. It would be absurd for him (as witness) to be concerns him, his spouse, parent or child, or
acknowledging something before himself (as notary any one claiming under any of them, shall be
public). void, unless there are three other competent
witness to such will.
Rule if Will is Executed Abroad
Q: If a Filipino in the U.S. wants to execute a notarial Witnesses Cannot Inherit
will in accordance with Philippine laws, do his Observe that the persons named in the Article are
witnesses have to be domiciled in the Philippines? incapacitated to inherit, but not incapacitated as
A.: It is submitted that the answer is in the negative, witnesses. Hence, only the part appertaining to them
since after all, the will is being made in the U.S. should be considered void.
NOTE: Of course, it should be observed that generally, The disqualification extends to —

there are two reasons for the requirement of Philippine (1) the witness
domicile: (2) the spouse of the witness
• the assurance that the witness will be available at (3) the parent of the witness
the time the will is presented for probate; (4) the child of the witness
• the likeliness of personal acquaintance with the (5) anyone claiming the right of said witness, spouse,
testator (hence, greater credibility as a witness, for parent, or child. (Example: the creditor of the
example, on the soundness of mind of the testator witness if said creditor has not been paid his
credit.)
Art. 822. If the witnesses attesting the execution of a will NOTE: Other relatives of the witness, like his brother
are competent at the time of attesting, their becoming or sister, to whom a devise or legacy has been given,
subsequently incompetent shall not prevent the can get the inheritance.
allowance of the will.
Effect if Witness is a Compulsory Heir
Effect of Subsequent Incompetency If the witness, spouse, parent or child (of the witness)
The competency of a witness to a will is to be is a compulsory heir (as when the witness is the child
determined as of the time of the execution of the of the testator), said heir is still entitled to the
instrument, and not as of the time when the will is LEGITIME, otherwise this would be an easy way to sort
presented for probate. of disinherit him without any justifiable cause. (See Art.
915).
If a witness is competent when he signs and attests the
will, his subsequent in competency, from whatever The purpose of the law being to prevent undue
cause, will not prevent the probate of the will. influence, it is understood that the prohibition refers
only to the free portion.
Conversely, if the witness is incompetent when he
signed the will, his subsequent competency, in the NOTE: While the law says only devise or legacy, it
absence of an enabling statute, will be of no avail should be understood to refer also to the institution of
an heir (voluntary), and or even of compulsory heirs
Note also that capacity as a witness to a will is different also, but only insofar as he has been given the free
from capacity as a witness in court. To be a witness in portion or an excess of his legitime. (See also Art.
court, it is sufficient that a person be “possessed of 1027, par. 4 which does not distinguish between heirs
organs of perception, and perceiving can make known on the one hand, and devisees or legatees on the other
what he has perceived.” Hence, a 15-year-old person, hand.)
for example, may be a witness in court
Art. 824. A mere charge on the estate of the testator for
Art. 823. If a person attests the execution of a will, to the payment of debts due at the time of the testator’s
whom or to whose spouse, or parent, or child, a devise death does not prevent his creditors from being
or legacy is given by such will, such devise or legacy competent witnesses to his will.
shall, so far only as concerns such person, or spouse, or
parent, or child of such person, or any one claiming Creditors as Witnesses
under such person, or spouse, or parent or child, be The charge referred to here is a debt of the estate or of
void, unless there are three other competent witnesses the testator.
to such will. However, such person so attesting shall be
admitted as a witness as if such devise or legacy had not While a creditor who acts as a witness is disqualified to
been made or given. inherit, he is qualified to receive his credit, which after
all cannot be considered a gift.
Interested Witness
= A person attesting the execution of a will to whom or
to whose spouse, parent, or child, a devise or agency
is given.

Codicils| Revocation, Republication, Revival of Wills | Allowance and Disallowance Vice Dean Castillo-Taleon
SUBSECTION 5. — CODICILS AND Art. 826. In order that a codicil may be effective, it shall
INCORPORATION BY REFERENCE be executed as in the case of a will.
Art. 825. A codicil is a supplement or addition to a will, Formalities of Codicils

made after the execution of a will and annexed to be As in the case of wills, there can be:
taken as a part thereof, by which any disposition made (a) notarial or ordinary codicils
in the original will is explained, added to, or altered. (b) holographic codicils
“Codicil” is derived from the Latin “codex” and literally A notarial will may be revoked by either a notarial or
means a little code or a little will (although, of course, holographic codicil; similarly, a holographic will may be
physically it may be larger or longer than a will). revoked by a holographic or notarial codicil.
Time When Codicil is Made If a codicil is not executed with the formalities of a will
A codicil, since it refers to a will, cannot be made before (Art 805 and 806), said codicil is void
a will; it is ALWAYS MADE AFTER
A valid will can never be revoked, expressly or
Rule in Case of Conflict Between Will and Codicil impliedly, by an invalid codicil.
In case of conflict between a will and a CODICIL, it is
understood that the latter should prevail, it being the Art. 827. If a will, executed as required by this Code,
later expression of the testator’s wishes. incorporates into itself by reference any document or
paper, such document or paper shall not be considered
At first codicils were writings actually attached to the a part of the will unless the following requisites are
will, but this is no longer necessary; when they are present:
separate documents, the codicil referring to and (1) The document or paper referred to in the will must be
ratifying the will may be said to incorporate the will by in existence at the time of the execution of the will;
reference, or to republish the will. (2) The will must clearly describe and identify the same,
stating among other things the number of pages
In order to operate as a republication of the will, it is thereof;
sufficient if the codicil refers to the will in such a way as (3) It must be identified by clear and satisfactory proof
to leave no doubt as to the identity of that instrument. as the document or paper referred to therein; and
(4) It must be signed by the testator and the witnesses
A reference to the will in the codicil constitutes a
on each and every page, except in case of voluminous
sufficient identification of the will.
books of account or inventories.
CODICIIL SUBSEQUENT WILL
both are made after and presuppose a prior will Incorporation by Reference
being the latest expressions of the testator’s = It is the incorporation of an extrinsic document or
desires, they take precedence over the prior will, paper into a will by reference therein so as to
where their provisions are inconsistent with those become a part thereof and probated as such
in the latter.
DOCTRINE: a will, duly executed and witnessed
forms part of the original
a new or separate will according to statutory requirements, may incorporate
will
into itself by an appropriate reference a written paper
supplements the makes dispositions or document which is in existence at the time of the
original will, explaining, without reference to and execution of the will, irrespective of whether such
adding to, or altering independent of the document is one executed by the testator or a third
any of its dispositions original will person, whether it is in and of itself a valid instrument,
if it provides for a full provided the document referred to is identified by clear
disposition of the and satisfactory proof. So incorporated, the extrinsic
testator’s estate paper takes effect as part of the will and is admitted
(although inconsistent to probate as such.
does not, as a rule,
merely in part with the
revoke entirely the prior
prior will) may revoke The purpose of the Article is to provide for those cases
will
the whole prior will by when a testator wishes to incorporate to his will only by
substituting a new and reference (i.e., without copying the whole thing) certain
last disposition for the documents or papers, especially inventories and books
same of accounts.
a will and a codicil
thereto, being regarded a prior will and a Said documents or inventories, when referred to in a
as a single instrument subsequent will, being 2 notarial will, do not need any attestation clause,
(except where a separate wills, may be because the attestation clause of the will itself is
manifest intention construed sufficient.
requires otherwise), are independently of each
to be construed other General Rule: An instrument w/c is not executed in
together accordance w/ the formalities of a will shall not be
admitted to probate.

Exception: that given in Art 827 w/c permits However, it is submitted that:
incorporation by reference provided the requisites • If a holographic will happen to have at least
enumerated are present: three credible and qualified witnesses, there
can be a proper incorporation by reference
Requisites for Validity of Documents Incorporated • Moreover, if a holographic will (with NO
by Reference witnesses) refers to a document entirely
(1) The document or paper referred Therefore: written, dated, and signed in the handwriting
to in the will must be in existence Reference to of the testator, there can also be a proper
at the time of the execution of the future papers will incorporation by reference.
will. render the
incorporation void. SUBSECTION 6. — REVOCATION OF WILLS AND
However, the will TESTAMENTARY DISPOSITIONS
itself remains
valid. Art. 828. A will may be revoked by the testator at any
time before his death. Any waiver or restriction of this
The will must refer right is void.
to the papers as
having been
Revocability of a Will
already made; it is
Revocation
not enough that in
= an act of the mind, terminating the potential
truth it was already
capacity of the will to operate at the death of
in existence.
the testator, manifested by some outward or
visible act or sign, symbolic thereof.
(2) The will must clearly describe and What to describe
= an act to annul a will in whole or in part
identify the same, stating among and identify:
other things, the number of pages locations, general
thereof. appearance NOTE: the testator must have testamentary capacity at
the time of revocation. The same degree of mental
capacity is necessary to revoke a will as to make one.
This is true even in
the case of
Until the death of the testator, a will is ambulatory and
voluminous books
revocable, since after all, the will concerns a disposition
of account or
of properties and rights effective after death.
inventories.
(3) It must be identified by clear and parol evidence or
The heirs do not acquire any vested right to the
satisfactory proof as the evidence aliunde
disposition in a will until after the testator’s death.
document or paper referred to is needed here of
therein course.
Provisions in a will which are ordered to be effected
(4) It must be signed by the testator If voluminous – no
immediately, even during the testator’s lifetime, are all
and the witnesses on each and need to sign each
right, provided the proper formalities and requisites are
every page, except in case of and every page;
present, but they are not really testamentary
voluminous books of account or sufficient number
disposition
inventories. of pages will
suffice provided it
“a will may be revoked by the testator at any time
guarantees their
before his death. Any waiver or restriction of this right
authenticity.
is void.”
→ Upon being revoked, the will or the
same instrumental
testamentary disposition intended to be
witnesses
revoked, ceases to exist, and is as inoperative
Observe that even the number of pages of voluminous
as if it has never been written.
accounts or inventories must be stated. (Art. 827, par.
2).
Art. 829. A revocation done outside the Philippines, by a
The exception refers only to the signing of all pages; person who does not have his domicile in this country, is
and even here, while not every page has to be signed, valid when it is done according to the law of the place
still it is believed that there must be a signature on at where the will was made, or according to the law of the
least several pages thereof for the purpose of place in which the testator had his domicile at the time;
identifying same as the documents really referred to. and if the revocation takes place in this country, when it
is in accordance with the provisions of this Code.
Incorporation Can Generally be Done Only in
NOTARIAL WILLS Conflicts Rules for Revocation of Wills
From the fact that Art. 827(4) speaks of “witnesses,” it REVOCATION OUTSIDE THE PHILIPPINES
is reasonable to believe that as a rule, ONLY (a) follow law of place
NOTARIAL WILLS can have this incorporation by If not domiciled in the where will was
reference. Philippines MADE; or
[non resident Filipino or
alien]
(b) follow law of place
where testator was

DOMICILED at the The revocation of a legacy does not operate to revoke
time of revocation the entire will. Only total and absolute revocation of the
(a) follow law of the entire will prevent the probate of the revoked testament
Philippines (since (Dionisio Fernandez, et al. v. Ismaela Dimagiba, L-
If domiciled in the his domicile is 23638, Oct. 12, 1967).
Philippines (not here); or
provided for in (b) (Paras only) follow A revocation may occur by intendment of law
the law) the general rule of CONTRARY TO THE ACTUAL INTENT of the testator.
[resident Filipino or alien] lex loci
celebrationis of the Some instances of revocation by implication of law:
REVOCATION. (1) When after the testator has made a will, he sells,
REVOCATION IS IN THE PHILIPPINES or donates the legacy or devise.
whether or not the (2) When there is a decree of legal separation.
domicile is in the follow Philippine law. → In such case, provisions in favor of the
Philippines offending spouse made in the will of the
innocent spouse shall be revoked by
operation of law.
Art. 830. No will shall be revoked except in the following
(3) Commission by an heir, legatee, or devisee of an
cases:
act of unworthiness
(1) By implication of law; or
(4) Alienation, transformation, or loss of the thing
(2) By some will, codicil, or other writing executed as
given as a devise or legacy subsequent to the
provided in case of wills; or
execution of the will
(3) By burning, tearing, cancelling, or obliterating the
(5) Judicial demand by the testator of a credit which
will with the intention of revoking it, by the testator
has been given as a legacy.
himself, or by some other person in his presence, and by
(6) Preterition of compulsory heirs in the direct line.
his express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express Revocation by an Overt Act
direction of the testator, the will may still be Overt Acts Covered:
established, and the estate distributed in accordance (1) burning
therewith, if its contents, and due execution, and the fact (2) tearing
of its unauthorized destruction, cancellation, or (3) cancelling
obliteration are established according to the Rules of (4) obliterating
Court.
Requisites:
Ways of Revocation (Paras)
The Civil Code speaks of revocation in three ways: (1) There must be an overt act specified by the law.
(1) by implication or operation of law (2) There must be a completion at least of the
→ totally or partially subjective phase of the overt act.
(2) by virtue of an overt act (3) There must be animus revocandi or intent to
→ like burning, tearing, cancelling, or obliterating revoke.
totally or partially in some instances (4) The testator at the time of revoking must have
(3) by virtue of a revoking will or codicil capacity to make a will.
→ totally or partially, or expressly or impliedly (5) The revocation must be done by the testator
himself, or by some other person in his presence
Revocation by Implication of Law and by his express direction.
Implication of Law
= this kind of revocation occurs when certain acts or (Jurado)
events take place subsequent to the execution of (1) The testator must have testamentary capacity at
a will from which the law infers or presumes that the time of performing the act of destruction;
the testator intended a change, either total or (2) The act of destruction must have been performed
partial, in the disposition of his property. with the intention of revoking the will;
= the kind of revocation produced by OPERATION (3) Such intention must have been accompanied by
of LAW when certain acts or events take place an actual physical act of destruction manifested by
after CIVIL CODE OF THE PHILIPPINES burning, or tearing, or cancelling, or obliterating of
the will or a part thereof; and
The rule of revocation by implication of law recognizes (4) Such act of destruction must have been performed
that a will may be revoked by the occurrence of certain by the testator himself, or by some other person in
circumstances not specifically mentioned in the his presence, and by his express direction.
statutes which prescribe the methods of revocation.
(De Leon)
Reason for allowing revocation by implication of law: (1) The testator must have testamentary capacity
There may be certain changes in the family or domestic at the time of performing the act;
relations or in the status of his property, such that the (2) The act must be any of the overt acts
law presumes a change of mind on the part of the specified;
testator. (3) It must be a completed act – actually carried
out;

(4) It must have been with the intent of revoking • The mere act of “crumpling” or the removal of the
the will; “fastener” binding the pages of a will, does NOT
(5) It must have been done by the testator constitute a revocation, even though there be
himself, or by some other person by his animo revocandi. The reason is that “crumpling” is
express direction. not one of the overt acts provided for by the law.
o However, in the Philippine case of Roxas
Intention of Revocation v. Roxas, 48 O.G. 2177, the court
The intent to revoke is essential to a revocation by act impliedly allowed “crumpling’’ as one of
of the testator. In order that an act shall have the effect the overt acts, provided there is animo
of revoking a will, the INTENTION TO REVOKE MUST revocandi.
APPEAR CLEARLY AND UNEQUIVOCALLY; • Tearing off even the signature alone constitutes
revocation provided the other requisites are
a will is not revoked by any act of destruction not present. This is because the signature goes to the
deliberately done animo revocandi. very heart of the will.
An act of destruction which is done accidentally, by
mistake, or as a result of fraud or undue influence, does The overt act of OBLITERATING or CANCELLING
not operate as a revocation. The same rule applies to
the partial destruction of a will by accident. CANCELLATION OBLITERATION
effected by diagonal or effected by erasing or
Even where one of the statutory methods for revoking horizontal lines, or criss scraping off any word or
a will is followed by the testator, his act is ineffectual crosses written upon disposition which the
unless his intent thereby to revoke or alter the will the face of the will or testator intends to
appears. The intent may be inferred from the nature of upon any part thereof revoke.
the act or it may be shown by extrinsic evidence, but it words are still legible words are rendered
must in some competent way be made to appear. illegible
The overt act of BURNING • Either of the two revokes a will, totally or partially.
• It is sufficient even if a small part of the instrument o This is what differentiates
itself be burned even though the entire writing itself cancellation/obliteration from revocation
be left untouched. effected by burning or tearing. In the
• To constitute revocation by burning, it would seem latter, the revocation is always total, while
that there must be at least a burning of a part of in the former, the revocation is total if it is
the paper on which the will is written, although a directed against an essential part of the
very slight burn will suffice. Otherwise, there is no will and partial if it is directed against a
revocation. nonessential part of the will.
• If thrown into the fire with intent to revoke, and it • If all parts are cancelled or obliterated, or if the
was burned in three places without scorching the signature is cancelled or obliterated, the whole will
writing, there is already a revocation even if, is revoked, the reason in the case of the signature
unknown to the testator, somebody was able to being that the act strikes at the existence of the
snatch it from the fire and thus saved it whole instrument
• If a will is burned accidentally, there is no • Cancellation of the signature of witnesses to a
revocation in view of the lack of intention. holographic will leaves the will valid, since no
• If the envelope containing a will is burned, but the witnesses are after all required.
will itself is untouched, there is NO revocation • Cancellation or obliteration of non-vital part leaves
even if there be intent to revoke the other parts in force.
• It is clear that the physical act of destruction of a
will, like burning in this case, does not per se Q: T made a will which was later discovered same to
constitute an effective revocation, unless the be missing. He then informed his relatives he would
destruction is coupled with animus revocandi on make another will. But he never did so. On his death,
the part of the testator. It is not imperative that the the missing will was found. Can it be considered
physical destruction be done by the testator revoked?
himself. It may be performed by another person
but under the express direction and in the A: No, because actually there has not been any of the
presence of the testator. Of course, it goes without overt acts mentioned under the law. And even if the will
saying that the document destroyed must be the was never found, still parol evidence may be
will itself [Maloto, et al. v. CA, et al.; L-76464, Feb. introduced to prove its contents, for we may presume
29, 1988] here that the destruction, if indeed there was any, was
not authorized
The overt act of TEARING
• Even a slight tear is sufficient.
• Of course, the greater the degree of tearing the
greater is the evidence of animo revocandi.
• “Tearing” includes “cutting.’’ A clause may be
revoked by “cutting” same from the will

Revocation by the Execution of Another Will or sometime in the future, the first would be revoked,
Codicil is not enough. However, there is nothing wrong in
Revocation in this manner may be express or implied. making the revocation conditional, that is, the
revocation takes place only if the condition is
EXPRESS REVOCATION: It is express when in a fulfilled (doctrine of “conditional revocation,” also
subsequent will, or codicil, or other writing executed as called “dependent relative revocation”).
provided in case of wills, there is a revocatory clause • A second will referred to by the testator as his “last
expressly revoking the will or a part thereof. will” revokes completely the first will, particularly if
• express revocation may be effected by a the provision of the two, as to who were being
subsequent will, or a codicil, or a nontestamentary instituted as heirs, are inconsistent
writing executed as provided in case of wills
• It is essential that in the revocatory clause Art. 831. Subsequent wills which do not revoke the
contained in the subsequent will, codicil or other previous one in an express manner, annul only such
writing the intention of the testator to revoke the dispositions in the prior wills as are inconsistent with or
previous will must be clearly and unmistakably contrary to those contained in the later wills.
manifested.
Art. 832. A revocation made in a subsequent will shall
IMPLIED REVOCATION: It is implied when the take effect, even if the new will should become
provisions of the subsequent will or codicil are partially inoperative by reason of the incapacity of the heirs,
or absolutely inconsistent with those of the previous devisees or legatees designated therein, or by their
will. renunciation.
• Implied revocations consists in complete
inconsistency between the two wills. Effect if Will is Inoperative
• implied revocation may be effected only by either According to Art. 832, if the subsequent will which
a subsequent will or a codicil. It cannot be effected contains the revocatory clause should become
by a nontestamentary writing executed as inoperative either by reason of the incapacity of the
provided in case of wills since such writing does heirs, devisees or legatees designated therein or by
not contain any affirmative disposition of property reason of their renunciation or repudiation, the
which can be said to be inconsistent with the revocation shall still take effect.
dispositions contained in the will. → This rule is logical, because, while the
capacity or the desire of the heirs, devisees or
Requisites for Revocation of a Former Will by a legatees to succeed is absolutely beyond the
Subsequent Will control of the testator, the act of revocation is
(1) the testator must have testamentary capacity at within his absolute control.
the time of revocation; → Consequently, the revocatory clause must be
(2) the subsequent will must be valid; entirely separated from the other
(3) it must contain a revocatory clause or be testamentary dispositions which are affected
incompatible with the former will thereby showing by the incapacity or the renunciation of the
intent to revoke; heirs, devisees or legatees.
(4) it must be admitted to probate.
Effect if Will is Disallowed
If a subsequent will, containing a clause revoking a
REVOCATION BY A CODICIL, it must be observed previous will, is disallowed by the probate court on the
that ordinarily, a codicil to a will is a republication ground that it has not been executed in accordance
thereof with the formalities prescribed by law, the revocatory
clause will not produce any effect whatsoever.
If the REVOCATION IS PARTIAL, it will have the effect → This is logical, because, after all, the effect of
of republishing the will as of the date of the codicil with the disallowance is to nullify the will
respect to all parts not revoked. altogether, including the revocatory clause
contained in such will.
If the REVOCATION IS TOTAL, there is no
republication. Problem: Testator made will No. (1). After one week,
he wanted to revoke same, so he executed will No. (2),
As regards REVOCATION BY A expressly revoking will No. (1). In the belief that he had
NONTESTAMENTARY WRITING executed as already accomplished what he wanted, he then tore
provided in case of wills, it is not essential that the into two pieces will No. (1). On his death, it was
writing should contain any affirmative disposition of discovered that will No. (2) had not been validly
property. executed.
• A will may be revoked by a subsequent will or Q: Can we consider will No. (1) as having been
codicil, either notarial or holographic. revoked, or should it still be given effect?
• It is essential however, that the revoking will be
itself a valid will (validly executed as to form), A.: In one case, if was held that while it is true that
otherwise there is no revocation. revocation was not produced by the execution of an
• The revocation made in the subsequent will must invalid will, revocation was made thru an overt act —
indeed be a definite one. A mere declaration that the act of tearing or destruction — with animo

revocandi. Hence, the court concluded that will No. (1) devisees or legatees designated therein, or by their
had indeed been revoked. (Diaz v. De Leon, 43 Phil. renunciation.
413). However, in a subsequent case, it was ruled that
there was no revocation either by subsequent will (for Effect on Revocation if New Will is Inoperative
same was invalid) or an overt act (since the act of • There is a difference between an invalid will, and
destruction or tearing the first will was prompted by the a valid but ineffective will an invalid revoking will
false belief that the second will had been validly cannot revoke.
executed). (See Art. 833, which provides that a • But a valid though ineffective will can revoke.
revocation of a will based on a false cause or illegal
cause is null and void). To put it in another way, the
Q: T made a will making X his heir. Later, T expressly
doctrine of dependent relative revocation — the
revoked his first will by executing a second will
revocation by destruction or overt act was good only if
containing a revocatory clause. T made Y his heir. The
this condition is fulfilled, namely, that the revoking will
second will was validly made, but on T’s death, Y
was valid. The condition was not fulfilled; therefore, the
refused to accept the inheritance. Is the first will still
revocation by overt act did not really materialize.
revoked?
Presumptions of Revocation A: Yes. (Art. 832). Therefore, T will be considered to
(1) Where the will cannot be found following the death have died intestate, and X cannot inherit, except, if he
of the testator and it is shown that it was in the be also one of the intestate heirs.
testator’s possession when last seen, the
presumption is, in the absence of other evidence,
• If the revoking will is both invalid and ineffective, it
that he must have destroyed it animo revocandi.
is clear that there can be no revocation
(2) Where the will cannot be found following the death
of the testator and it is shown that the testator had
ready access to it, the presumption is, in the Art. 833. A revocation of a will based on a false cause or
absence of other evidence, that he must have an illegal cause is null and void.
destroyed it animo revocandi.
(3) Where it is shown that the will was in the custody Revocation Based on False or Illegal Cause
of the testator after its execution, and As already discussed under Art. 830, this Article 833 is
subsequently, it was found among the testator’s one of the aspects of “dependent relative
effects after his death in such a state of mutilation, revocation,” or more properly, at least for the purpose
cancellation or obliteration as represents a of this Article, “a revocation made under a mistake.”
sufficient act of revocation within the meaning of
the applicable statute, it will be presumed, in the Q: T made a will making A his heir. T then learned that
absence of evidence to the contrary, that such act A was dead, so he made another will instituting B as
was performed by the testator with the intention of heir. If A turns out to be still alive, who inherits?
revoking the will. A: A inherits, because the revocation was based on a
false cause.
Conditional or Dependent Relative Revocation
Under this doctrine, the established rule is that if a The fact that the cause for the revocation was a false
testator revokes a will with a present intention of belief or a mistake must be found on the face of the will
making a new one immediately and as a substitute, and or codicil itself, i.e., if the revocation is through a will or
the new will is not made, or, if made, fails of effect for codicil
any reason, it will be presumed that the testator
preferred the old will than intestacy, and the old Art. 834. The recognition of an illegitimate child does not
one will be admitted to probate in the absence of
lose its legal effect, even though the will wherein it was
evidence overcoming the presumption, provided its
made should be revoked.
contents can be ascertained.
→ It is a rule of presumed intention rather than a
substantive rule of law. Effect of Revocation on the Recognition of an
Illegitimate Child
Probate of Lost or Destroyed Notarial Wills According to Art. 278, voluntary recognition of an
If a notarial will has been lost or destroyed without illegitimate child may be done:
intent to revoke, its contents may nevertheless still be (1) in a record of birth
proved by: (2) will
(1) oral or parol evidence (3) statement before a court of record
(2) carbon copies (Borromeo v. Casquijo, L-26063) (4) any authentic writing
→ This is because a carbon copy signed by all
Now then, if the will in which recognition had been
concerned is just as good as the original.
made is subsequently revoked, THE RECOGNITION
STILL REMAINS VALID.
Holographic wills, which have been lost or destroyed
without intent to revoke, cannot be probated
Reason for Art. 834: While a will is essentially
revocable, RECOGNITION IS IRREVOCABLE (unless
Art. 832. A revocation made in a subsequent will shall there be vitiated consent).
take effect, even if the new will should become
inoperative by reason of the incapacity of the heirs, Moreover —
• recognition is not really a testamentary disposition; • The old will is republished as of the date of the
• recognition does not wait for the testator’s death to codicil — makes it speak, as it were, from the new
become effective. and later date.
• A will republished by a codicil is governed by a
Art. 834 applies only if the recognizing will is statute enacted subsequent to the execution of the
extrinsically valid — otherwise there would be no will, but which was operative when the codicil was
recognition that can be revoked. executed
SUBSECTION 7. — REPUBLICATION AND Q: Can a will, invalid because of fraud or force or undue
REVIVAL OF WILLS influence or because the testator was under 18 or was
Art. 835. The testator cannot republish, without insane, be republished by mere reference in a codicil?
reproducing in a subsequent will, the dispositions
contained in a previous one which is void as to its form. A: It is submitted that the answer is yes, because this
is not a case when the will is void as to its FORM. (Form
‘Republication’ Defined — in this Article, it is believed, refers to such things as
= It is the process of re-establishing a will, which has those covered by Art. 805, et seq., like defect in the
become useless because it was void, or had been number of witnesses, lack of or fatal defect in the
revoked. attestation, lack of acknowledgment, etc.). But not to
= an act of the testator whereby he reproduces in a vitiated consent or to lack of testamentary capacity,
subsequent will the dispositions contained in a although of course these are included in the phrase
previous will which is void as to its form or “extrinsic validity,” as distinguished from “intrinsic
executes a codicil to his will validity.’’
EXPRESS REPUBLICATION/ REPUBLICATION BY Art. 837. If after making a will, the testator makes a
RE-EXECUTION: it is express if the testator second will expressly revoking the first, the revocation
reproduces in a subsequent will the dispositions of the second will does not revive the first will, which
contained in a previous one which is void as to its form. can be revived only by another will or codicil.
→ This is the republication which is referred to in
Art. 835 of the Code. Its purpose is to cure the Revival of revoked will by Republication
will of its formal defects. Revival is the restoration to validity of a previously
revoked will by operation of law
IMPLIED OR CONSTRUCTIVE REPUBLICATION/
REPUBLICATION BY REFERENCE: It is constructive ART 837 CONTEMPLATES THIS SITUATION:
if the testator for some reason or another executes a
codicil to his will.
he makes
→ This is the republication which is referred to in anothe will
he makes a
testator makes third will w/c
Art. 836 of the Code. a will
EXPRESSLY
revokes the
revoking the
second
first
How Made
Republication may be made by:
(1) re-execution of the original will (the original The rule laid down by the provision is that: THE
provisions are COPIED) REVOCATION OF THE SECOND WILL DOES NOT
(2) execution of a codicil (also known as implied REVIVE THE FIRST. The revival must be made by
republication). the execution of another will or a codicil. In other
words, BY REPUBLICATION, either expressly or
Art. 836. The execution of a codicil referring to a impliedly.
previous will has the effect of republishing the will as
modified by the codicil. he makes anothe
he makes a
will IMPLIEDLY
testator third will w/c
(by inconsitent
Requisites and Limitations of Republication makes a will revokes the
provisions)
second
To republish a will void as to its FORM, all the revoking the first
dispositions must be reproduced or copied in the new
or subsequent will.
If the revocation of the first will by the second will was
To republish a will valid as to its form but already only implied, that is, by reason of inconsistent
provisions, the FIRST WILL WOULD BE REVIVED BY
revoked, the execution of a codicil which makes
OPERATION OF LAW by the revocation of the second
reference to the revoked will is sufficient.
will by the third will. This is implied from the doctrine of
→ Here, mere reference is enough: there is no
dependent relative revocation that it will be presumed
necessity of reproducing all the previous
that the TESTATOR PREFERRED THE FIRST WILL
dispositions
TO BE OPERATIVE.
→ Of course, in this case there would be nothing
wrong with a RE-EXECUTION
It seems that under our law, the only way by which a
Effects of Republication by Virtue of a Codicil previously revoked will may be revived is through
another will or codicil.
• The codicil revives the previous will.

→ This is tantamount to saying that the testator Probate
will have to make another will or codicil either = the act of proving before a competent court
reproducing the contents of the revoked will or the due execution of a will by a person
incorporating thereto such revoked will by possessed of testamentary capacity, as well
reference in accordance with the provisions of as approval thereof by said court.
Art. 837 of the Code. = a special proceeding for establishing the
validity of the will.
As has already been intimated, a void will or a revoked = a special proceeding for the purpose of
one is a nullity, devoid of any effect, and is useless. proving that the instrument offered for probate
is the last will and testament of the testator,
And the only ways of giving effect to it are: that it has been executed in accordance with
(1) republication (this includes both re-execution and the formalities prescribed by law, and that the
reference by a codicil — already discussed) testator had the necessary testamentary
(2) revival capacity at the time of the execution of the
will.
Distinctions Between Republication and Revival → Probate may also be called “probation,’’
REPUBLICATION REVIVAL “legalization,’’ “protocolization,’’ and
an act of the one that takes place by “authentication
TESTATOR OPERATION of LAW.
the re-establishment by the restoration or VALIDITY OF THE
the testator of a reestablishment of PROBATE TESTAMENTARY
previously revoked will revoked will or revoked PROVISIONS
or one invalid for want of provisions thereof, to decides the execution of
proper execution as to effectiveness, by virtue the document and the deals with descent and
form or for other of legal provisions testamentary capacity distribution
reasons, so as to give of the testator
validity to said will
Examples of Revival Nature of Probate
While omission of a compulsory heir in the institution A proceeding on an application for the probate of a will
of heirs annuls the institution, still if the omitted heir is not an ordinary civil action. It is SPECIAL
dies ahead of the testator, the institution is revived, PROCEEDING. A will is nothing more than a species
without prejudice to the right of representation. (See of conveyance whereby a person is permitted with the
Art. 856). formalities prescribed by law, to control to a certain
degree the dispositions of his property after his death.
If after making a will, the testator makes a second
will impliedly revoking the first, the revocation of the The action of the court in admitting a will to probate has
second will revives the first will all the effects of a judgment; and as such is entitled to
full faith and credit in other courts
Aside from republication and revival, there is no other The proceeding by which this is accomplished is
way of restoring effectiveness. Thus, it has been held considered to be in the nature of a proceeding in rem,
that piecing together a torn and revoked will cannot and upon this idea the decree of probate is held binding
restore its effectiveness on all persons in interest, whether they appear to
contest the probate or not.
SUBSECTION 8. — ALLOWANCE AND
DISALLOWANCE OF WILLS (PROBATE) Notice of the time and place of hearing is required to
be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule
Art. 838. No will shall pass either real or personal 79, Rules of Court). The publication of the notice of the
property unless it is proved and allowed in accordance proceedings is constructive notice to the whole world.
with the Rules of Court. The testator himself may, during
his lifetime, petition the court having jurisdiction for the The proceeding is not a contentious litigations, and,
allowance of his will. In such case, the pertinent although the persons in interest are given an
provisions of the Rules of Court for the allowance of opportunity to appear and reasonable precautions are
wills after the testator’s death shall govern. taken for publicity, they are not impleaded or required
to answer.
The Supreme Court shall formulate such additional
A final judgment on probated will, albeit erroneous, is
Rules of Court as may be necessary for the allowance of
binding on the whole world.
wills on petition of the testator.
Two Kinds of Probate
Subject to the right of appeal, the allowance of the will, (a) Probate during the TESTATOR’S LIFETIME
either during the lifetime of the testator or after his → this does not prevent the testator from
death, shall be conclusive as to its due execution. revoking his probated will or from making
another one
(b) Probate after the TESTATOR’S DEATH.

Need for a Probate It is of course true that the rights of the parties should
PROBATE IS MANDATORY: It is essential because not be left hanging in uncertainty for periods of time far
under the law “no will shall pass either real or personal in excess of the maximum period of ten years allowed
property unless it is proved and allowed in accordance by law, but the obvious remedy is for the other
with the Rules of Court.’’ (Art. 838, first paragraph). interested person either
(1) to petition for the production of the will and for its
Even if the decedent left no debts and nobody raises probate, or
any question as to the authenticity and due execution (2) to inflict upon the guilty party the penalties
of the will, none of the heirs may sue for the partition of prescribed by Rule 75 of the Rules of Court, or
the estate in accordance with that will without first (3) to declare the unworthiness of the heir under Art.
securing its allowance or probate by the Court: 1032 of the Civil Code for concealing or
• first, because the law expressly provides that “no suppressing the will.
will shall pass either real or personal estate unless
it is proved and allowed in the proper court”; and, Procedure and Reason for ‘Ante Mortem’ Probate
• second, because the probate of a will, which is a TESTATOR HIMSELF petitions the competent court
proceeding in rem, cannot be dispensed with the for the probate of his will.
substituted by any other proceeding, judicial or
extrajudicial, without offending against public Reason for allowing this kind of probate — to prevent
policy designed to effectuate the testator’s right to or minimize fraud, intimidation, and undue infl uence;
dispose of his property by will in accordance with also to enable the testator to correct at once failure to
law and to protect the rights of the heirs and observe legal requirements.
legatees under the will thru the means provided by
law, among which are the publication and the In Longcop v. Turla, et al., C.A. L-26913-R, June 11,
personal notices to each and all of said heirs and 1963, it was held that even when the testatrix herself
legatees has brought the probate proceedings, whenever the
will falls short of the required formalities, the remedy
Thus in probate proceedings, the court — would be to correct the will immediately and not to
(1) orders the probate proper of the will proceed with the probate of the defective will
(2) grants letters testamentary or letters with a will
annexed Questions Determinable by Probate Court
(3) hears and approves claims against the estate Under our law, there are only three possible questions
(4) orders the payment of the lawful debts which can be determined by the probate court. They
(5) authorizes the sale, mortgage, or any other are:
encumbrance of real estate (1) Whether or not the instrument which is offered for
(6) and directs the delivery of the estate or properties probate is the last will and testament of the
to those who are entitled thereto. decedent; in other words, the question is one of
identity.
Even if a will is never probated, property may be (2) Whether or not the will has been executed in
transmitted if a partition agreement is entered into, the accordance with the formalities prescribed by law;
provisions of which are based on the will [Chua v. Court in other words, the question is one of due
of First Instance 78 SCRA 412] execution.
(3) Whether the testator had testamentary capacity at
A probate court’s jurisdiction is not limited to the the time of the execution of the will; in other words,
determination of who the heirs are and what shares are the question is one of capacity.
due them as regards the estate of a deceased person.
Neither is it confined to the issue of the validity of wills. Consequently, the probate court cannot inquire into the
Parenthetically, questions of title pertaining to the intrinsic validity of testamentary dispositions.
determination prima facie of whether certain properties
ought to be included or excluded from the inventory Furthermore, it was held that a person who intervenes
and accounting of the estate subject of a petition for in the probate proceedings can be required to show his
letters of administration, may be resolved by the interest in the will or in the property affected thereby.
probate court [Aurelio Ocampo, Dominador D. Buhain → For such purpose, it is sufficient that he must
and Teresa C. Dela Cruz; GR 103727, Dec. 18, 1996] show or produce prima facie evidence of his
relationship to the testator, or of his right to the
As a general rule, courts in probate proceedings are latter’s estate.
limited only to passing upon the EXTRINSIC VALIDITY → Consequently, if he claims to be an
of the will sought to be probated and the acknowledged natural child of the testator, the
COMPLIANCE WITH THE REQUISITES OR probate court will certainly allow him to
SOLEMNITIES PRESCRIBED BY LAW. produce evidence regarding his status, but
the nature of the evidence submitted would
Imprescriptibility of Probate nevertheless be only prima facie, and only for
It must also be noted that the statute of limitations is the purpose of justifying his intervention in the
not applicable to the probate of wills. If the probate of probate proceeding.
validly executed wills is required by public policy, the o The reason for this is evident. The
state could not have intended the statute of limitations final determination of the status of
to defeat that policy. such person can be made only

during the proceedings for the In court, there must be proof of death (actual or
distribution of the estate and not presumed), publication of the notice of hearing, and the
during the probate proceedings. compliance of all the formalities required by law.
Salient Points in Procedures of the Post-Mortem The necessary witnesses must be produced if
Probate available, and their absence must be satisfactorily
I. The probate proper (this deals with explained.
EXTRINSIC VALIDITY)\
II. The inquiry into INTRINSIC VALIDITY and Even if an attesting witness does not remember
the DISTRIBUTION itself of the property. attesting (Rule 76, Sec. 11) or even if he testifies or all
the witnesses testify against the validity and due
At any time after the testator dies, the will may be execution of the will, there is still a chance for the court
presented for probate by any executor, devisee, to allow the will, if it believes that all the legal
legatee, or interested person. (Rule 76, Sec. 1, Rules requirements have been complied with.
of Court). The court can motu proprio set the time and
place for proving the will delivered to it. A lost or destroyed notarial will, destroyed without
→ This is true whether or not the petitioner animo revocandi, may still be probated as long as it is
(proponent) has the will in his possession, or clearly proved that once upon a time, a will had been
it is in somebody else’s possession, or has validly executed, that the will had been lost or
been lost or destroyed, as long as there was destroyed without animo revocandi. Two credible
no animo revocandi. witnesses must then testify as to its contents.
→ These things must still be proved by the
An expressly revoked will is of course not admissible to proponent even if there is NO opposition to
probate. (Trillana v. Crisostomo, L-3378, Aug. 22, the probate of the lost or destroyed will.
1951). However, a revoked will may of course be
admitted to probate, if the subsequent will that had It is well-settled that for a person to be able to intervene
allegedly revoked it is proved to be void and is in an administration proceeding, it is necessary for him
therefore disallowed. to BE INTERESTED IN THE ESTATE TO BE
Even if a will has already been probated, if later on a ADMINISTERED.
subsequent will is discovered, the latter may still be → An interested party has been defined as one
presented for a probate. (Arancillo v. Peñaflorida, who would be benefited by the estate, such as
C.A.,54 O.G. 2914). an heir, or one who has a certain claim
against the estate, such as a creditor. Thus,
Even if the discovered will had been made earlier than the one who has or can have no interest in
probated will, it can still be probated as long as the two succeeding a decedent cannot oppose the
wills can be reconciled, or if there are portions in the probate of his alleged will.
first which have not been revoked in the
second. Effect of Probate Proper (EXTRINSIC VALIDITY)/
Effect of Allowance of Will
The PETITION FOR PROBATE must among other A judgment or decree of a court with jurisdiction of a
things state: proceeding to probate a will, which admits the will to
(1) The fact that the testator is dead, and the place probate, is conclusive of the validity of the will; it is not
and time of said death; subject to collateral attack, but stands as final, if not
(2) The fact that the deceased left a will, copy of which modified, set aside, or revoked by a direct proceeding,
has to be attached to the petition; or reversed on appeal to a higher court.
(3) The fact that the will was executed in accordance
with legal requirements; This is clear from the provision of the fourth paragraph
(4) Names, ages, addresses of the executor and all of Art. 838 of the New Civil Code, a provision which is
interested parties or heirs; also found in Sec. 1 of Rule 75 of the New Rules of
(5) The probable value and character of the property Court. Since a proceeding for the probate of a will is
of the estate; essentially one in rem which determines the status of
(6) The name of the individual whose appointment as the decedent’s estate as testate or intestate, the
executor is being asked for; judgment rendered by a court having jurisdiction is
(7) If the will has not been delivered to the court, the conclusive on the whole world, irrespective of who
name of the person who is supposed to have the appeared as parties of record in the proceeding.
will in his custody
As long as there has been FINAL JUDGMENT by a
The issue in the probate of a will is restricted to that court of COMPETENT JURISDICTION, and the period
kind of validity of the will which for example determines: for filing a petition for relief (Rule 38, Secs. 2 and 3,
(1) whether or not the testator was possessed of Rules of Court) has expired without such petition
a sound mind, having been submitted, the PROBATE PROPER (or
(2) whether or not he freely executed the will, and allowance) of the will is binding upon the WHOLE
(3) whether or not the will had been executed in WORLD (being a proceeding in rem) insofar as
accordance with legal formalities. TESTAMENTARY CAPACITY (at least 18; sound
(Pastor v. Court of Appeals, GR 56340, June 24, 1983) mind) and DUE EXECUTION (including all formalities

and absence of any ground for disallowance) are The withdrawal from the case of one who filed the
concerned. In fact, the order allowing probate of the will petition for probate does NOT affect the jurisdiction of
is not interlocutory and is, therefore, immediately the court over the proceedings and over all the other
appealable persons therein, for it is a well-established principle that
the proceeding for the probate of a will is in rem, and
An order determining the distributive share of the the court acquires jurisdiction over all the persons
estate to which a person is entitled is, of course, interested in the estate of a deceased person, whether
appealable, before final judgment. or not he filed the petition for the probate of the will
In no case is the judgment conclusive on matters such To determine appellate jurisdiction of the Supreme
as ownership of property Court or of the Intermediate Appellate Court, as the
→ The proceeding for distribution of the case may be, the amount or value involved or in
properties is NOT in rem, and cannot affect controversy is that of the entire estate
those who were not PERSONALLY served
with summons The final judgment on a probate may be set aside by a
petition for relief brought within the legal period. Under
When allowance may be set aside Rule 38, Sec. 1 of the Rules of Court, when a judgment
Since a proceeding for the probate of a will is or order is entered against a party in the Court of First
essentially one in rem, a judgment allowing a will shall Instance (now Regional Trial Court) thru FAME (fraud,
be conclusive as to its due execution. Consequently, accident, mistake, or excusable negligence), he may
no question of the validity or invalidity of the will could file a petition in the same court and in the same cause,
be thereafter raised, except asking that the judgment, order, or proceeds be set
(1) by means of an appeal, or aside.
(2) by means of a petition for relief from the judgment
by reason of fraud, accident, mistake, or PERIODS — the petition has to be filed:
excusable negligence, or (1) within sixty (60) days after the petitioner learns of
(3) by means of a petition to set aside the judgment the judgment or order to be set aside;
by reason of lack of jurisdiction or lack of (2) and within six (6) months after such order or
procedural due process, or judgment was entered. Should the period lapse,
(4) by means of an action to annul and judgment by the judgment now really becomes FINALLY
reason of extrinsic or collateral fraud. FINAL.
Distribution is defined as the division, by order of the Q: In the settlement of estates, what are usually done?
court having authority, among those entitled thereto, of A:
the estate of a person, after the payment of debts and (1) First, proof of testamentary capacity and due
charges. execution are presented, and the court then issues
an order allowing or disallowing the will.
Q: To be conclusive, the probate must have been (2) After this is done, the distribution of the estate may
conducted by a competent court with full jurisdiction. be done, after all questions on intrinsic validity are
What is that court? disposed of.
A: The Regional Trial Court of the province —
1) where he has real estate (in case of NON The first part is really different from the second part.
RESIDENT testator). The first is concerned only with testamentary capacity
2) where he resided at the time of his death (in case of and due execution. Other matters are generally
a RESIDENT testator). irrelevant. After the probate order is made, same may
[NOTE, however, that all Courts of First Instance (now be appealed within the proper period.
RTC) have jurisdiction.
General Rule: A probate court has no jurisdiction to
The residence or domicile of the testator affects only decide questions of ownership.
the VENUE, but NOT the JURISDICTION of the Court.
The rule grants jurisdiction to the Court where Exceptions:
jurisdiction is first INVOKED, without taking VENUE (1) as when the parties voluntarily submit this matter
into account. to the court; or
(2) as when provisionally, the ownership is passed
Moreover, it is essential that: upon to determine whether or not the property
(1) it be proved before the court that he died after involved is part of the estate.
having executed a will (in case of post mortem
probate) Requirements Before Distribution of Properties
(2) and that the will has already been delivered to the (1) First, there must be a decree of partition allocating
Court property to each heir.
Any other court’s decree cannot have the res judicata (2) Then, payment of the estate tax is required.
effect of a probate, except of course that of the (3) Finally, the distributive shares may be delivered.
Appellate Court affirming the judgment of the proper
court. Termination of Probate Proceedings
Probate proceedings are considered terminated upon
the approval by the probate court of the project of

partition, the granting of the petition to close the amount to force, coercion, or importunities which he
proceedings, and the consequent issuance of the order could not resist.
of distribution directing the delivery of the properties to
the heirs in accordance with the adjudication made in The following circumstances shall be considered. The
the will. confidential, family, spiritual and other relations
between the parties, or the fact that the person alleged
Matters that Should be Brought up Before the to have been unduly influenced was suffering from
Probate Court mental weakness, or was ignorant, or in financial
These are: distress.”
(1) determination of heirs;
(2) proof of filiation; If undue influence has vitiated only some of the
(3) determination of estate of decedent; and dispositions, the rest should be considered valid.
(4) claims thereto.
The Ground of Fraud
Art. 839. The will shall be disallowed in any of the Fraud is the use of insidious machinations to convince
following cases: a person to do what ordinarily he would not have done.
(1) If the formalities required by law have not been
complied with; Fraud is present to invalidate a will if by
(2) If the testator was insane, or otherwise mentally misrepresentation and deception the testator is led into
incapable of making a will, at the time of its execution; making a will different from what he would have made
but for the misrepresentation and deception.
(3) If it was executed through force or under duress, or
the influence of fear, or threats;
Fraud invalidating a will is said to be any trick,
(4) If it was procured by undue and improper pressure
deception, or artifice by which the testator is so
and influence, on the part of the beneficiary or of some circumvented, cheated, or deceived as to fall into error
other person; respecting the disposition of his property.
(5) If the signature of the testator was procured by
fraud; For fraud to vitiate a will, there must be INTENT TO
(6) If the testator acted by mistake or did not intend that DEFRAUD. This intent, and the nature of the fraud,
the instrument he signed should be his will at the time of must be proved of course.
affixing his signature thereto
Fraud in a contract renders it voidable; in a will, same
Grounds for Disallowance of a Will is cause for disallowance because the will is void.
The grounds given in Art. 839 are exclusive, thus, no
other ground can serve to disallow a will. It should be noted that when a beneficiary is the person
who prepared or drafted the will, a suspicion is created
The Ground of Force, Duress, Fear or Threat that fraud or undue influence was exercised
• These grounds connote the idea of coercion,
mental or physical. Fraud and undue influence are mutually repugnant and
• While their presence in a contract renders it exclude each other; their joining as grounds for
voidable (and therefore susceptible of ratification), opposing probate shows the absence of definite
their presence in a will renders the will VOID evidence against the validity of the will.
There is violence when in order to compel the testator The Ground of Mistake or Lack of Testamentary
to execute the will, serious or irresistible force is Intent Insofar as the Document Is Concerned
employed If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the time
There is intimidation when the testator is compelled of affixing his signature thereto.
by a reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon the Example: A man signed a document not believing it to
person or property of his spouse, descendants or be a will. This mistake is a ground for disallowance.
ascendants, to execute the will
In American jurisdiction, it is well-settled that mistake
The Ground of Undue and Improper Pressure and which will invalidate a will is a mistake as to the identity
Influence or character of the instrument which he signed, as well
There is undue influence when a person takes as a mistake as to the contents of the will itself. These
improper advantage of his power over the will of mistakes are generally known as mistakes in the
another, depriving the latter of a reasonable freedom of execution. Hence, a will should not be denied probate
choice. merely because the testator was mistaken in his
appreciation of the effect of the language thereof.
It connotes the idea of coercion by virtue of which the
judgment of the testator is displaced, and he is induced
to do that which he otherwise would not have done.
To establish undue influence it must be shown that the

influence exerted upon the testator was such as to

Distinctions Between Revocation and Ratification
Disallowance or Nullity Q: Granting that the will should be disallowed under
REVOCATION DISALLOWANCE any of the grounds stated in Art. 839, would it be
a voluntary act of the possible for the testator, before promulgation of the
given by judicial order decree of disallowance, to ratify the will?
testator
must always be for a
with or without cause A: IT DEPENDS.
legal cause
as a rule is always total → With respect to a will which is void because of
(except when the non-compliance with the formalities
ground of fraud or undue prescribed by law, ratification is not possible.
may be partial or total That which is void or inexistent is not
influence for example
affects only certain susceptible of ratification. Consequently, the
portions of the will). only way by which such will may be validated
would be for the testator to republish the same
Allowance of Wills Proved Outside of the in accordance with Art. 835 of the Code.
Philippines → However, with respect to a will which was
(See Rule 77, Revised Rules of Court) executed through violence, intimidation,
undue influence, fraud or mistake, since we
Will proved outside the Philippines may be allowed cannot exactly say that the will is void or
here. — Wills proved and allowed in a foreign country, inexistent, ratification is possible
according to the laws of such country, may be allowed,
filed and recorded by the proper Court of First Instance
(now Regional Trial Court) in the Philippines. (Rule 77,
Sec. 1, Rules of Court).
Notice of hearing for allowance. — When a copy of

such will and of the order or decree of the allowance
thereof, both duly authenticated, are fi led with a
petition for allowance in the Philippines, by the
executor or other person interested, in the court having
jurisdiction, such court shall fix a time and place for the
hearing, and cause notice thereof to be given as in
case of an original will presented for allowance. (Rule
77, Sec. 2, Rules of Court).
When will allowed, and effect thereof. — If it appears

at the hearing that the will should be allowed in the
Philippines, the court shall so allow it, and a certificate
of its allowance, signed by the judge, and attested by
the seal of the court, to which shall be attached a copy
of the will, shall be filed and recorded by the clerk, and
the will shall have the same effect as if originally proved
and allowed in such court. (Rule 77, Sec. 3, Rules of
Court).
As has been said before —

1) If a foreign will has already been probated in a
foreign country, all that is needed is to prove the fact
that there has already been a foreign probate of a will
allowable in the Philippines and that the deceased left
property in a place other than the Philippines. Of
course, there will be a hearing on whether or not there
was such a probate. (Pluemer v. Hix, 54 Phil. 610). In
a sense, therefore, before the foreign-probated will can
have effect in our country, it must be proved and
allowed before our Philippine courts in much the same
manner as wills originally presented for allowance here
2) If no such foreign probate has been made, the

ordinary probate procedure is required. Moreover, it
must be shown that the foreign will has been validly
executed. It has been held in this connection that an
alleged foreign probate cannot be deemed one unless
it is shown that the court was a duly authorized probate
court and that the entire probate procedure there had
been complied with.

Institution of Heir| Substitution of Heir | Conditional Testamentary Disposition Vice Dean Castillo-Taleon
SECTION 2 In such cases the testamentary dispositions made in
INSTITUTION OF HEIR accordance with law shall be complied with and the
(Articles 840 to 856) remainder of the estate shall pass to the legal heirs.
Art. 840. Institution of heir is an act by virtue of which a Effect of Lack of Institution
testator designates in his will the person or persons Under Art. 764 of the Spanish Civil Code, from which
who are to succeed him in his property and Art. 841 of our Code is derived, the rule is that a will
transmissible rights and obligations. shall be valid although it may not contain an institution
of heir.
Institution of Heir
• Institution being a voluntary act, cannot be allowed The same is true in case of a partial institution or in
to affect the legitime. case of a vacancy in the inheritance due to repudiation
• In general, the provisions on “institution” are or incapacity.
applicable to devises and legacies.
• There can be an instituted heir only in The effect in all of these cases is that the testamentary
testamentary succession (for the heir in intestate dispositions which are made in accordance with law
succession is called legal or intestate heir). shall be complied, while the remainder shall pass to the
• A conceived child may be instituted, if the legal heirs in accordance with the law of intestate
conditions in Arts. 40 and 41 are present succession. In other words, there is what is known as
mixed succession.
Characteristics of an Instituted of Heir
Non-Necessity of Institution of Heir
• she is a testamentary heir;
A will, unless otherwise defective, is valid, even if:
• she continues the judicial personality of the
(1) there is no institution of heir
testator by only in relation to the inheritance w/o
(2) the instituted heir is given only a portion of the
being personally liable for the testator’s debts;
estate (Reason: Mixed succession is allowed
• she is a natural person (however, testamentary (3) the heir instituted should repudiate or be
dispositions may be made in favor of juridical incapacitated to inherit (because the law has
persons) provided particular provisions for said cases).
• she acquires rights w/c are limited to the
DISPOSABLE FREE PORTION of the inheritance
Art. 842. One who has no compulsory heirs may dispose
and cannot impair the portion known as legitime;
by will of all his estate or any part of it in favor of any
• she is presumed to have been instituted..
o where there are several heirs – equally; person having capacity to succeed.
o individually;
o simultaneously w/ others One who has compulsory heirs may dispose of his
→ unless the contrary appears estate provided he does not contravene the provisions
of this Code with regard to the legitime of said heirs.
Requisites for a VALID Institution
(1) The will must be EXTRINSICALLY VALID. Rules for Freedom of Disposition of Estate
→ Hence, the testator must be capacitated, the If one has no compulsory heirs:
formalities must be observed, there must be • He can give his estate or any portion thereof to
no vitiated consent, the will must have been anybody qualified to inherit from him
duly probated, the will must have been the • BUT he must respect the restrictions imposed by
personal act of the testator. special laws.
(2) The institution must be valid INTRINSICALLY. (Example: If an applicant or grantee of a
→ The legitime must not be impaired, the heir homestead dies before the issuance of the patent,
must be certain or ascertainable; there should his rights thereto can be given only to his surviving
be no preterition spouse).
(3) The institution must be EFFECTIVE • It is evident from the first paragraph of the article
→ no predecease, no repudiation by the heir, no that if the testator has no compulsory heirs, his
incapacity of the heir freedom of disposition is absolute in
character.
Q: When is adjudication by an heir of the decedent’s • The whole estate is disposable. He can,
entire estate to himself by means of an affidavit therefore, dispose of the whole of his estate or any
allowed? part of it in favor of any person, provided that such
A: Only if he is the sole heir of the estate person has the capacity to succeed.
Art. 841. A will shall be valid even though it should not If one has compulsory heirs:
contain an institution of an heir, or such institution • compulsory heirs are those who cannot be
should not comprise the entire estate, and even though deprived of their legitimes, like a legitimate child,
the person so instituted should not accept the or an acknowledged natural child)
inheritance or should be incapacitated to succeed. • he must respect the legitimes (unless there be a
valid cause for an express disinheritance);
• the free portion can, however, be given to anybody
(including of course the compulsory heirs),

provided always that restrictions of special laws declarations of the testator as to his intention; and
are complied with. when an uncertainty arises upon the face of the will, as
• If the testator has compulsory heirs, his freedom to the application of any of its provisions, the testator’s
of disposition is not absolute in character. This intention is to be ascertained from the words of the will,
is so, because under our system of compulsory taking into consideration the circumstances under
succession, there is always a portion of the which it was made, excluding such oral declarations.
testator’s estate known as the legitime which is
reserved by operation of law for the benefit of From these provisions it is clear that the proper test in
certain heirs who are therefore called compulsory order to determine the validity of an institution of heir is
heirs, and over which the testator as a general rule the possibility of finally ascertaining the identity of the
can have no testamentary control. instituted heir either by intrinsic or extrinsic evidence.
• It is, therefore, evident that if the testator has
compulsory heirs, his freedom of disposition This test is specially applicable to the following cases:
shall extend only to the disposable free portion (1) If the name and surname of the instituted heir has
of his estate, but not to the legal portion or been omitted by the testator;
legitime. (2) If there has been an error with respect to the
• The only case in which the testator may, by his name, surname, or circumstances of the instituted
own act, deprive a compulsory heir of his legitime heirs;
is by means of disinheritance for causes expressly (3) If the name, surname, and circumstances of the
stated by law; instituted heir are the same as those of other
→ while the only case in which the law persons; and
recognizes a right of the testator to impose a (4) If an unknown or uncertain person has been
charge upon the legitime is when it allows the instituted.
said testator to prohibit the partition of the
entire estate including the said legitime for a Effect of Error
period which shall not exceed twenty years. Mere error in designation of name or circumstances is
NOT important as long as the intent is clear, and there
Necessity of Adjudication is positive identification.
Even if only one heir is instituted, there must still be a
judicial order of adjudication. The order of adjudication Effect of Misdescription
is the judicial recognition that in instituting the heir, the Misdescription may be corrected even by extrinsic
deceased did not contravene the law, and that the heir evidence (“any other manner”) but NOT by oral
was in no way disqualified to inherit. declarations of the testator.
Example of Second Paragraph of the Article

Art. 843. The testator shall designate the heir by his
“My stout cousin, Jorge.”
name and surname, and when there are two persons
If there be three stout cousins named Jorge, the
having the same names, he shall indicate some
impossibility of identification renders the institution
circumstance by which the instituted heir may be void; hence, no one will get.
known.
[NOTE: If there are no other legal heirs but the 3
Even though the testator may have omitted the name of cousins, they may still all get, not as instituted heirs, but
the heir, should he designate him in such manner that as legal heirs, provided they are within the 5th degree
there can be no doubt as to who has been instituted, the of relationship.].
institution shall be valid.
Art. 845. Every disposition in favor of an unknown
Art. 844. An error in the name, surname, or person shall be void, unless by some event or
circumstances of the heir shall not vitiate the institution circumstance his identity becomes certain. However, a
when it is possible, in any other manner, to know with disposition in favor of a definite class or group of
certainty the person instituted. persons shall be valid.
If among persons having the same names and Examples of Dispositions in Favor of an Unknown
surnames, there is a similarity of circumstances in such Person
a way that, even with the use of other proof, the person  A instituted “my friend.” If A has many friends, the
instituted cannot be identified, none of them shall be an disposition is void, for lack of certainty.
heir. ✓ A instituted “my student in IV-A who will get the
highest grade in Civil Law among his classmates
Validity of Institution. in the bar of 2004.” This is valid because of the
The provisions of Arts. 843 and 844 should be applied determining circumstance.
in relation to the provision of Art. 789 of the Code.
“Unknown person”
According to Art. 789, when there is an imperfect = one who cannot be identified from the will; not
description, or when no person or property exactly one who is a stranger to the testator.
answers the description, mistakes and omissions must = (persona incierta) is one who is not
be corrected, if the error appears from the context of determined or individualized and, therefore,
the will or from extrinsic evidence, excluding the oral cannot be identified.

= One who is instituted as heir by the testator ✓ This is valid provided all are capacitated: those
but cannot be identified, thus making it incapacitated will naturally not inherit.
impossible to know with certainty who is
meant by the testator. Special Kinds of Class Institutions
• of the poor in general. (Art. 1030).
According to Art. 845, a disposition in favor of such • relatives of the testator. (Art. 959).
person shall be void, unless by some event or • a person and his children. (Art. 849).
circumstance his identity becomes certain. The article, • brothers and sisters of the full and half-blood.
therefore, states not only the general rule, but also the (Art.848).
exception. • the institution of descendants or relatives of a
legatee. (The rule of “nearest excludes the farther’’
Notwithstanding the general character of the will NOT apply here. Therefore, all the
exception, nevertheless, it may happen that the descendants and relatives will inherit per capita.
institution or disposition may not become effective even
if the person instituted may turn out to be a certain or NOTE: Remember that “the testator may entrust to a
determinate person. third person the distribution of specific property or sums
→ This arises when the testator institutes as his of money that he may leave in general to specified
heir any person designated by another person. classes or causes, and also the designation of the
By this disposition there is in reality a delegation to persons, institutions, or establishments to which such
another person of the power to designate the instituted property or sums of money are to be given or applied.’’
heir, and since this is prohibited by the provision of Art. (Art. 786).
785, it is null and void.
It is, therefore, clear that before the disposition can be Art. 846. Heirs instituted without designation of shares
considered valid, it is indispensable that the identity of shall inherit in equal parts.
the beneficiary can be ascertained either by a past,
present or future event or circumstance.
Institution Without Designation of Shares
→ It must, however, be noted that his requisite is
If several heirs are instituted without designation of
predicated on the fact that the beneficiary must be
shares, the law presumes that the intention or wish
in existence at the time of the testator’s death.
of the testator is that they shall all inherit in equal
o Otherwise, even if it would be possible to
shares.
determine his identity by some event or
circumstance, the disposition would still
 This rule, however, should not be interpreted in an
be ineffective on the ground of absolute
absolute manner.
incapacity
✓ On the contrary, it should be limited only to the
The determining event or circumstance may occur
case WHERE ALL OF THE HEIRS ARE OF THE
before or after the testator’s death.
SAME CLASS OR JURIDICAL CONDITION, and
→ This is so, since the law does not distinguish.
where there are compulsory heirs among the heirs
Moreover, a contrary doctrine would frustrate
instituted, it should be applied only to the
the testator’s will. DISPOSABLE FREE PORTION.
→ These limitations upon the scope of the article
In some cases, the institution is VOID even if an
are logical, because if we apply the rule in an
identifying event or circumstance will occur:
absolute manner, the division of the
• “the 2003 C.P.A. exams topnotcher” — if said inheritance in equal shares might actually
topnotcher be incapacitated to inherit. result in the impairment of the legitimes of
• “the first child of my sister Susan” — if at the compulsory heirs, a result which would violate
testator’s death, said child had not even been one of the most fundamental principles of
conceived yet. testamentary succession.
• “the person whom my wife will designate a week o Such a consequence may be illustrated
after my death.” by a testator who institutes his legitimate
• “the 2003 bar topnotcher provided that my wife child, his wife and a friend as his heirs
agrees.’’ without designating their respective
shares. The child and the wife are
Dispositions in favor of definite class compulsory heirs, while the friend is a
Dispositions in favor of a definite class or group of voluntary heir. To hold that the
persons are of course valid, although the particular inheritance shall be divided into three
persons comprising the specified class or group may equal parts in accordance with the literal
be unknown. tenor of the provision of Art. 846 would
result in the impairment of the legitime of
The second sentence of Art. 845 which recognizes the the child which, according to the law, is
validity of such dispositions is complemented by the one-half of the entire inheritance.
provisions of Arts. 786 and 1030 of the present Civil Consequently, the only possible recourse
Code is to satisfy the legitimes which
correspond to the compulsory heirs and
Example of Class Institution: “All the Ateneo fourth then apply the rule stated in Art. 846 with
year law students for the school year 2003-2004.’’ respect to the disposable free portion,

which in the example given is one-fourth worth P30,000 must go to B. How will the entire estate
of the entire inheritance. be divided?
A: Each will receive a total of P100,000.
In other words, the proper interpretation of the rule Hence:
stated in the article is as follows: A gets the P10,000 piano PLUS P90,000
• If the testator has no compulsory heirs, apply the B gets the P30,000 ring PLUS P70,000
provision literally; C gets P100,000
• however, if he has compulsory heirs, first satisfy TOTAL = P300,000
their legitime, then apply the provision with respect
to the disposable free portion. NOTE: It would have been different had the testator
stated that “the car should go to A, the ring to B, and
Example of Rule — T instituted A and B as his heirs. T the REST would be divided EQUALLY among A, B,
has no compulsory heirs. How much will A and B and C.’’ It is obvious here that C would get only 1/3 of
inherit? the remaining P260,000.
A: They will inherit equally, that is, 50-50. Reason for
the law: The law merely expresses what it presumes to Art. 847. When the testator institutes some heirs
have been the testator’s intention, for had he desired individually and others collectively as when he says, “I
otherwise, he should have been more specific designate as my heirs A and B, and the children of C,’’
those collectively designated shall be considered as
Onesima De Belen v. Bank of the individually instituted, unless it clearly appears that the
Philippine Islands, et al. intention of the testator was otherwise.
L-14474, Oct. 31, 1960
FACTS: In the codicil of Benigno Diaz, he gave a trust Individual and Collective Institutions
— legacy to Filomena Diaz or her legitimate In the absence of a more specific designation, the law
descendants. Benigno died on Nov. 7, 1944. Filomena presumes that those who are collectively
died on Feb. 8, 1954 leaving 2 children, one of whom designated shall be considered as individually
had 7 children of her own, while the other did not have instituted in accordance with the presumed will of the
any. testator.
The issue is: who will get Filomena’s legacy — her 2 Combination of Individual and Collective
children only OR the 2 children together with the 7 Institution
grandchildren since the latter are also “descendants’’? (De Leon)
Example: “I institute as my heirs A, B, and the three
HELD: The 2 children together with the 7 grandchildren children of C to my estate of P100,000.’’ How much will
will get the legacy, each one inheriting per capita since each of the three children get?
they are the substitutes in a simple or vulgar A: P20,000 each. Reason: Although collectively
substitution. Hence, the legacy will be divided into 9 designated, they shall be considered individually
equal parts, applying Art. 846. We cannot apply Art. instituted (estate to be divided into 5), unless it clearly
959 which limits the distribution to those nearest in appears that the testator’s intention was otherwise.
degree (the 2 children only) because Art. 959 speaks
of the relatives of the testator, not those of the legatee. NOTE: If the testator had stated “I institute A, B, and
my three children, to an estate of P300,000,” how much
✓ Institution of a compulsory heir to the legitime is would each child get?
VALID but SUPERFLUOUS (unnecessary since A: We apply here the rule of first giving the children
by law, he is entitled to it). their legitimes and dividing the balance into 5. Hence,
P150,000 as legitime goes to the children (each getting
 Institution of a voluntary heir (not compulsory heir) P50,000), while the remaining P150,000 will be divided
to the legitime is of course VOID.]. among the 5 heirs instituted.
Special Cases In the case of Nable Jose v. Uson, 27 Phil. 73, it was
All are voluntary heirs, but the shares of some are held that when the sisters and the nieces of the testator
designated, while the shares of the others are not. were instituted, each niece should get as much as each
Example: A, B, C, and D are instituted, but A is given sister.
specifically a share of 1/10 only. What should be done
with the remaining 9/10? (Jurado)
A: The remainder will be divided equally among the Problem — A died in 1980. He left a will which contains
remaining three (B, C, and D). the following institution of heirs: “I designate as my
heirs my son B, my daughter C, the children of my
All are voluntary heirs but specific properties of the deceased son D, and my friend X.” D, who died in 1969,
estate have been given to them as part of their share. is survived by his three legitimate children E, F and G.
Example: A, B, and C were instituted heirs to an estate The net residue of A’s estate is P180,000. How shall
totally valued at P300,000 but it was specifically the distribution be made?
provided that the piano (in the estate) worth P10,000
should go to A, and a diamond ring (also in the estate) A: The provisions of Arts. 846 and 847 of the New Civil
Code are applicable to the instant case. Manresa,

commenting on Art. 846, maintains that where there that the others may be considered in the same
are compulsory heirs among the heirs instituted, the category as strangers, making Art. 846 applicable.
rule that the heirs shall inherit in equal parts should be
applied only to the disposable free portion. Correlating NOTE: Had this been a case of legal succession, only
this with the provision of Art. 847, the distribution of the the full and the half brothers would inherit (the others
estate shall be as follows: First satisfy the legitime of B, not being legal heirs) hence, the full brother gets
C, E, F, and G. B and C shall be entitled to P30,000 P66,666 plus, and halfbrother gets P33,333 plus.
each, in their own right, while E, F and G shall be
entitled to P10,000 each, by right of representation Bar Question
(Arts. 888, 902, Civil Code). The disposable free If the testator should institute all his brothers or sisters
portion of P90,000 will then be divided equally among as his heirs, and he has some of the full blood and
the instituted heirs B, C, E, F, G, and X. Therefore, the others of the half-blood on the side of the father or
shares of each will be: mother only, how is the inheritance to be distributed
• B – P30,000, as compulsory heir; 15,000, as among them?
voluntary heir ANS.: Equally, by express provision of the law. (Art.
• C – P30,000, as compulsory heir; 15,000, as 808).
voluntary heir
• E – P10,000, by right of representation; 15,000, as
Art. 849. When the testator calls to the succession a
voluntary heir
person and his children, they are all deemed to have
• F – P10,000, by right of representation; 15,000, as
been instituted simultaneously and not successively.
voluntary heir
• G – P10,000, by right of representation; 15,000, as
voluntary heir Institution of a Person and His Children
“His children” refers not to the children of the testator,
• X – P15,000, as voluntary heir
but to the children of the person instituted also as an
TOTAL: 180,000
heir.
Art. 848. If the testator should institute his brothers and Example: T instituted A and A’s two children to an
sisters, and he has some of full blood and others of half estate of P30,000. Each of the three heirs gets P10,000
blood, the inheritance shall be distributed equally, all at the same time.
unless a different intention appears.
NOTE: Had the institution been successive, A would
Institution of Brothers and Sisters get all in the meantime, the children getting nothing
Compared with the old Civil Code during A’s lifetime.
Old Code — In TESTAMENTARY succession, the
brother of the full blood gets DOUBLE the share of “Deemed” here means presumed, hence, if a contrary
brother of the half blood. (Reason: The affection for him intention is present (that is, to institute them
is presumed to be double the affection for the latter.) successively), said intention must prevail, for the
testator’s will, if not illegal, must be followed.
New Civil Code — In TESTAMENTARY succession,
the shares are the SAME, unless a different intention Art. 850. The statement of a false cause for the
appears. (Reason: If indeed the affection is double, the
institution of an heir shall be considered as not written,
testator should have given expressly a double share to
unless it appears from the will that the testator would
the full-blood brother.)
not have made such institution if he had known the
falsity of such cause.
Example: “I institute my full-brother and my half-brother
to my estate of P100,000.” Each gets P50,000.
Institution Based on a False Cause
Before the institution of heirs may be annulled under
Compared with intestate succession Art. 850 of the Civil Code, the following requisites must
In intestate succession (OLD and NEW Civil Codes), concur:
the brother of the full-blood gets DOUBLE the share of (1) First, the cause for the institution of heirs must be
the brother of the half-blood. (Art. 1006, new Civil stated in the will;
Code; Art. 949, old Civil Code). (2) second, the cause must be shown to be false; and
(3) third, it must appear from the face of the will that
Problem the testator would not have made such institution
I instituted the following as my heirs: if he had known of the falsity of the cause.
A — my full-brother
B — my half-brother Consequently, where the testator’s will does not state
C — my step-brother in a specific or unequivocal manner the cause for such
D — my brother-in-law institution, the annulment of such institution cannot be
E — my illegitimate brother (illegitimate child of my availed of.
father).
How much will each get if the estate is P100,000?
ANS.: Each gets P20,000 (same share). While the law
mentions only the full and the half-brother, it is evident

Effect of Statements of a False Cause for Example: “I hereby institute X because I want him to kill
Institution Y, a college professor.” (To countenance such an
General Rule: the statement of a false cause for the institution would indeed be to encourage immorality.)
institution of an heir SHALL NOT VITIATE THE
INSTITUTION. Such cause shall be considered simply ✓ If the real motive is generosity, liberality, or
as NOT WRITTEN. affection and the illegal cause is only incidental,
the institution should be considered valid.
Exception: If from the will itself, it appears that the Example: “I hereby institute my cousin X because
testator would not have made such institution if he had during the last elections, he was a flying voter.” (Here,
known of the falsity of the cause, such fact renders the it is evident that the cause is the testator’s affection for
institution void. his cousin.)
Example: “I hereby institute my student X as my heir  MERE ESTRANGEMENT is not a legal ground for
for having topped the bar examinations of 2003.” If X the disqualification of a surviving spouse as an heir
was not the topnotcher, would he still inherit? of the deceased spouse.
A: Yes, because the false cause or reason is
considered as not written. Art. 851. If the testator has instituted only one heir, and
the institution is limited to an aliquot part of the
What is disregarded is the FALSE CAUSE, not the inheritance, legal succession takes place with respect
institution. to the remainder of the estate.
→ Reason for the law: The real cause is the
testator’s liberality, the mention of the bar The same rule applies, if the testator has instituted
topping being merely incidental, for even had several heirs each being limited to an aliquot part, and
X topped the bar, the testator would not have all the parts do not cover the whole inheritance.
been bound to reward him, were it not for the
provision in the will. Rule if entire inheritance not covered
According to the first paragraph of Art. 851, if the
If the institution had read this way: “I was about to testator has instituted only one heir, and the institution
institute A, my friend, as my heir, but because I adore is limited to an aliquot part, legal succession takes
bar topnotchers, I hereby institute X, a stranger, as my place with respect to the remainder of the estate.
heir because he topped the bar of 2003,” the answer → There will, therefore, be what is known as a
would be different, in case X really failed to top the bar. mixed succession.
Here it is evident, from the will itself, that the testator o Thus, if the testator institutes A to 1/2 of
would not have made such institution of X if he had the inheritance and there are no other
known of the falsity of the cause. It is obvious, too, that heirs instituted, A shall receive 1/2 of the
the cause was not mere generosity. estate upon the death of the testator,
→ In the problem presented, would A then while the other half shall pass to the legal
inherit? A: No, for he was NEVER instituted; heirs.
or was he ever made a substitute. ✓ The same rule also applies if the testator has
instituted several heirs each being limited to an
If children who are invalidly adopted are instituted as aliquot part.
heirs, the institution should remain valid. As much as o Thus, if the testator institutes A to 2/5 of
possible, intestacy ought to be avoided, and the the inheritance, B to 1/5, and C to 1/5,
testator’s wishes should be given effect. The allegation there will still be a remainder of 1/5 which
that the institution should be void because it was based shall pass to the legal heirs
on a false cause, the testator thinking that they had to
be instituted because of the adoption, is of no merit Effect of Institution to a Part of the Estate
because there is nothing in the will to indicate that had ✓ Art. 851 applies when there is a remainder or
the testator known of the invalidity of the adoption, the balance and there is NO INTENT to give all to the
institution of the children would not have been made. instituted heir or heirs.
➢ If there is such INTENT, the remainder should be
Evidence of Intent Must Appear in the Will divided proportionately, applying Art. 852.
The fact that the testator would not have made the
institution if he had known of the falsity of the cause, Examples
must appear in the will itself. • One heir instituted If the heir is given 3/4, the
 hence, proof outside the will is not admissible in remaining 1/4 should go to the legal heirs.
proving such intent. • Several heirs instituted T instituted A to 1/3, and B
to 1/4 of the inheritance 1/3 plus 1/4 = 7/12). The
Effect of Institution Because of an Illegal Cause remaining 5/12 will go to the legal heirs by way of
Under the present law, it is believed that a distinction intestate succession.
must be made.
NOTE: Intestate succession will not apply to the
 If the real motive was ILLEGAL, the institution remainder if the same has been disposed of by way of
should be void. legacies or devises

Art. 852. If it was the intention of the testator that the = the omission in the testator’s will of one, some or
instituted heirs should become sole heirs to the whole all of the compulsory heirs in the direct line,
estate, or the whole free portion, as the case may be, whether living at the time of the execution of the
and each of them has been instituted to an aliquot part will or born after the death of the testator.
of the inheritance and their aliquot parts together do not = it consists in the omission in the testator’s will of
cover the whole inheritance, or the whole free portion, the compulsory heirs in the direct line, or of anyone
each part shall be increased proportionately. or some of them, either because they are not
mentioned therein, or though mentioned they are
neither instituted as heirs nor expressly
Rule If Intent is to Give Entire Estate
disinherited
Art. 852 applies only if the intent is to give all only to
those instituted, otherwise legal succession takes = the total or complete omission, generally due to
place as to the remainder, unless said remainder has mistake or oversight, by the testator in his will, of
been completely disposed of by way of legacies or one, some, or all of the compulsory heirs in the
devises. direct line living at the time of the testator’s death.
The rule, however, is different if it was the intention of Example: If a testator has three legitimate children, and
the testator that the instituted heirs should become he institutes only two of them, there is preterition.
sole heirs of the entire estate, or the whole free
portion, as the case may be. PRETERITION DISINHERITANCE
refers to the deprivation
In such case, according to Art. 852, each part shall be of a compulsory heir of
increased proportionally, following the presumed his legitime for causes
intention of the testator (who thought that the total of EXPRESSLY STATED
the aliquot parts covered the entire estate), such BY LAW
increase to be taken from the portion not covered by the deprivation of a the deprivation is
their aliquot parts. compulsory heir of his EXPRESS.
legitime is TACIT OR
It is, therefore, evident that the rule stated in Art. 852 IMPLIED
constitutes an exception to the rule stated in the May be intentional but it ALWAYS VOLUNTARY
second paragraph of Art. 851. is PRESUMED TO BE
INVOLUNTARY
It enunciates the principle that when there is a conflict The law presumes that There is some LEGAL
between the intention of the testator and his there has been merely CAUSE OR REASON
mathematical computation, the former shall prevail. some MISTAKE OR
OVERSIGHT
Example The nullity of the The nullity is PARTIAl,
“I hereby institute as my only heirs A, B, and C, each institution is TOTAL only insofar as it may
one to get 1/4 of my estate.” The 1/4 still undistributed resulting in TOTAL prejudice the heir
should clearly be divided proportionately in this INTESTACY, saving disinherited
particular case, equally among A, B, and C, since this devises and legacies
is the evident intention of the testator. The omitted compulsory If valid, the compulsory
heir gets his share from heir is EXCLUDED
Art. 853. If each of the instituted heirs has been given an the ENTIRE ESTATE; FROM THE
aliquot part of the inheritance, and the parts together not only from his share INHERITANCE; if
exceed the whole inheritance, or the whole free portion, of the legitime but also of defective, the
as the case may be, each part shall be reduced the free portion not compulsory heir is
disposed of by way of merely restored to his
proportionally.
devises and legacies legitime, and
testamentary
Art. 854. The preterition or omission of one, some, or all dispositions which are
of the compulsory heirs in the direct line, whether living inofficious are reduced.
at the time of the execution of the will or born after the Compulsory heir in the Compulsory heir
death of the testator, shall annul the institution of heir; DIRECT LINE is omitted disinherited THOUGH
but the devises and legacies shall be valid insofar as NOT IN THE DIRECT
they are not inofficious. LINE
If the omitted compulsory heirs should die before the Requisites for Preterition
testator, the institution shall be effectual, without (1) The omission must be complete and total in
prejudice to the right of representation. character in such a way that the omitted heir does
not and has not received anything at all from the
‘Preterition’ Defined testator by any title whatsoever; and
Preterition or pretermission (2) The heir omitted must be a compulsory heir in
= is the omission, whether intentional or not, of a the direct line;
compulsory heir in the inheritance of a person. (3) The compulsory heir omitted should survive the
testator.

There is a TOTAL omission in the inheritance constitutes PRETERITION, for in this case, the
Before there can be any preterition, it is also essential parents would be compulsory heirs
that the omission of the compulsory heir must be
complete and total in character so that he receives The compulsory heir omitted must be in the direct
nothing from the testator at all. line
Compulsory Heirs in the Direct Line are:
 Consequently, if the testator leaves any property (a) legitimate children and descendants, with respect
to the heir who is alleged to have been omitted by to their legitimate parents and ascendants;
any title whatsoever, there can be no preterition. (b) legitimate parents and ascendants, with respect to
This is true even when he leaves to such their legitimate children and descendants;
compulsory heir a share which is less than his (c) acknowledged natural children, and natural
legitime. In such case, Art. 906 of the Code children by legal fiction;
applies; he can ask for the completion of his (d) other illegitimate children referred to in Article 287
legitime. (under the Family Code, (c) and (d) are all
classified as illegitimate children); and
✓ HENCE, if a compulsory heir is named in the will, (e) the father or mother of illegitimate children of the
but he is not given any share, although there is no three classes mentioned.
express disinheritance, there is preterition;
 It must be observed that the SURVIVING
 if a compulsory heir is given a share in the SPOUSE is not included. For though a compulsory
inheritance no matter how small, there is no heir, she is not in the direct line.
preterition, for here, under another article (Art. → If a spouse is preterited in a will; this will not
906), he is entitled only to the completion of his annul the institution of heirs, and it will not be
legitime; necessarily true that intestacy will follow. This
is because a spouse is not in the direct line.
 if a compulsory heir is not given anything in the
will, but he has already received a donation from Q: In her will, the testatrix divided the estate among her
the testator, there is NO preterition because after six children and omitted the husband. Is this
all, a donation to a compulsory heir is considered preterition?
an advance of the inheritance or legitime). (Art. A: While it is true that the husband was omitted or
1073). preterited, still the institution of heirs is not annulled, for
after all, the husband (surviving spouse) is not a
 the Supreme Court held that if an acknowledged compulsory heir in the direct line.
natural child is not omitted in the will but is on the
contrary given a legacy of some P3,000, this would If PARENTS (the nearest heirs here of the deceased)
not be a case of preterition. Here, there is NO are omitted in the will, this is a case of “preterition,” not
OMISSION. Of course, if the child, by virtue of the “ineffective disinheritance.” The institution of another,
legacy, is given LESS than her legitime, she would with the preterition of the parents, will give rise to
be entitled to the COMPLETION of HER intestate succession (Nuguid v. Nuguid; L-23445, June
LEGITIME, nothing more. It does not even matter 23, 1966)
whether the child was indicated in the will as heir
or not; what is significant is that a part of the estate ADOPTED CHILD: It is submitted that an adopted child
has been given to him or her. is by legal fiction considered a compulsory heir in the
direct line.
The omission must be COMPLETE so that the → This is clear from the provisions of Arts. 979 and
compulsory heir RECEIVES NOTHING from the 984 which speak of the share of the adopted child
testator or voluntary heir, devisee, or legatee in the will, in legal or intestate succession. These provisions
or as in intestate heir, or as a donee. fall under the subsection of Descending Direct
Line.
The omission must be of a COMPULSORY heir. → So, from the viewpoint of statutory construction, an
 HENCE, we do not speak of the preterition of adopted child is considered a member of the direct
voluntary heirs or intestate heirs (like brothers) descending line and, there fore, must be classified
unless they are also compulsory heirs. as a compulsory heir in the direct line.
→ Besides, since an adopted child is by law given all
✓ HENCE, also there can be preterition of legitimate of the successional rights of a legitimate child, it is
or illegitimate compulsory heirs, of descendants or but logical that all of the protection given or
of ascendants, in case these ascendants happen afforded by the law in order to protect such rights
to be the compulsory heirs in a given case. must also be applied to the case of an adopted
child.
 Thus, the omission of the testator’s father, when
the testator institutes his own children is NOT The omitted compulsory heir MUST SURVIVE the
preterition; testator
It is also an essential condition that the compulsory heir
✓ but the omission of one or both parents when there who is omitted in the testator’s will should survive the
are no legitimate children or descendants testator.

Q: What will happen if the omitted compulsory heir dies P90,000 will be divided equally between the two
before the testator? children. Hence, the estate will be distributed as
A: In such case, according to the second paragraph of follows:
Art. 854, the institution shall be effectual, but without A = P45,000
prejudice to the right of representation when it properly B = P45,000
takes place. Hence, when there is a surviving F = P10,000
representative of the deceased compulsory heir who TOTAL: P100,000
has been omitted in the testator’s will, such as a child,
the effect is that such child shall succeed to the legitime Art. 855. The share of a child or descendant omitted in a
which would have gone to the heir omitted. will must first be taken from the part of the estate not
disposed of by the will, if any; if that is not sufficient, so
Effects of Preterition: TOTAL INTESTACY
much as may be necessary must be taken
The preterition or omission of a compulsory heir in the proportionally from the shares of the other compulsory
direct line ANNULS AUTOMATICALLY (BY FORCE heirs.
OF LAW) THE WILL as well as the institution of heirs
and the properties disposed of thereby in favor of the
Where Share of Omitted Heir Must be Taken
heirs instituted shall be distributed according to the
rules of intestacy. • This Article can apply both to cases when there is
preterition and when there is no preterition.
• Remember that even if a child has been omitted in
Right of preterited heir/s – they will get the ENTIRE
a will, as long as he has received anything by way,
TESTATE by intestate succession
for example, of a donation inter vivos, there is NO
preterition. This is because the donation is an
Right of instituted heir – as to the voluntary heir
advance of his legitime. If what he received by way
instituted: will is inexistent.
of donation is less than his legitime, there is no
Example: T has three sons A, B, and C. T made a will preterition. He is entitled not to the annulment of
instituting A, B, and a friend F. C was omitted. If the the institution of heir but merely to the completion
estate is P90,000, how should same be distributed? of his legitime. (See Art. 906).
A: Since the institution is annulled, it is as if there was
• Moreover, even if the child had not received
no institution, hence, intestate succession takes place.
anything by virtue of a donation, or by virtue of the
A, B, and C will each get P30,000. F, the friend, gets
will, still if anything is left of the inheritance which
nothing. he may get by intestacy, there is no preterition.
Again, if what is left him by intestacy is less than
NOTE: In the problem, it is clear that F was not being
his legitime, he is entitled to its completion.
made a legatee merely, he was indeed instituted as
• Thus, it has been said that it is of the essence of
heir. It would be error to consider all bequests in favor
preterition that there be complete forgetfulness,
of strangers as legacies or devises, otherwise there
not in the will necessarily, but in the inheritance
would have been no need of the distinction, in effect,
(testate, intestate, or mixed).
made in Art. 854.
• Ordinarily, in a true case of preterition, Art. 855 is
useless, because the best procedure would be (in
NOTE: If a testator institutes in his holographic will a the absence of legacies or devises) just to divide
sister or brother as the only heir, and fails to institute the property intestate. And if there be allowable
his parents, who are still alive, this is a clear case of legacies or devises, the procedure is almost the
PRETERITION, and the instituted heir should get same. Just deduct them, and divide the remainder
NOTHING because said institution is void, on account as an intestacy
of the preterition. The total omission of the parents’
names is not to be regarded as a case of ineffective
Example
disinheritance, but a case of preterition (Nuguid v.
T has 3 legitimate children, two of whom he instituted
Nuguid; L-23445, June 23, 1966).
as heirs, and one of whom he preterited. A legacy of
P100,000 from an estate of P1,000,000 was given to a
In a case of preterition, the omitted heir gets his
friend. How much should the children receive?
share not only of the legitime but also of the free
A: After deducting the legacy of P100,000 (this is not
portion.
inofficious), the balance of P900,000 is divided equally
among the three heirs, each of whom should get
• Although the institution of heirs is indeed annulled,
P300,000. Thus, the 2 instituted children will not get the
the legacies and devises shall remain valid
intended P450,000 each in view of the preterition.
insofar as they are not inofficious.
(In other words, they are not voided, but merely
reducible if the legitime has been impaired). Art. 856. A voluntary heir who dies before the testator
transmits nothing to his heirs.
Examples: T has two sons, A and B. In T’s will, he gave
F, a friend, P10,000 as a legacy out of an estate of A compulsory heir who dies before the testator, a
P100,000. A and B were omitted. How should the person incapacitated to succeed, and one who
estate on T’s death be distributed? renounces the inheritance, shall transmit no right to his
A: Since the estate is worth P100,000, the free portion own heirs except in cases expressly provided for in this
is P50,000. Therefore, the legacy of P10,000 is not Code.
inofficious, and should remain effective. The remaining
Effect of Predecease cannot be represented. Therefore, everything
Under the law of testamentary succession, the general goes to B.
rule is that an heir who dies before the testator shall
transmit no right to his own heirs. In testate succession, the right of representation
covers only the legitime.
A distinction, however, must be made between the
case of a voluntary heir and the case of a compulsory In intestate succession, it covers the entire share of
heir. the person represented. The whole would descend
by the rules of intestate succession.
The rule is absolute with respect to a voluntary heir. It
must be remembered that a voluntary heir is an heir Predecease of a Compulsory Heir
who is called to the whole or to an aliquot part of the Although the first paragraph says “voluntary heir,” the
free portion of the inheritance by virtue of a will. Since principle applies also to a compulsory heir,
the right of representation, by virtue of which the notwithstanding the apparent exception in the second
representative is raised to the place and the degree of paragraph.
the person represented in case of either predecease or
incapacity of the latter, is a right which pertains only to Even a compulsory heir who predeceases the testator
the legitime of compulsory heirs, it necessarily follows transmits no right, although of course there is the right
that when a person who has been instituted as a of representation. But then, what the law really means
voluntary heir dies before the testator, he can is that instead of the compulsory heir getting his
transmit no right whatsoever to his own heirs. legitime, same will be received by his heir and
representative. He does not transmit, for to transmit is
The same is true in case a person has been designated to imply that he is entitled to it but gives it to his
as a devisee or a legatee with respect to a representative. Since he predeceased, he never was
determinate property. Since a devise or legacy is a entitled, and therefore what he could have received is
charge upon the free portion of the inheritance, it instead given, not by him but by the law to the
necessarily follows that when the designated representative.
devisee or legatee dies before the testator, no right
whatsoever is transmitted to the heirs of such devisee The same applies to an incapacitated compulsory
or legatee. heir.
→ A voluntary heir who is incapacitated to succeed
It is different in the case of a compulsory heir. This is from the testator shall transmit no right whatsoever
evident from the provision of the second paragraph of to his own heirs. A compulsory heir, on the other
Art. 856. The exception referred to is of course the right hand, may be represented, but only with respect
of representation. It must be noted, however, that what to his legitime.
is transmitted to the representatives of the compulsory
heir is his right to the legitime and not to the free A repudiating compulsory heir does not only receive
portion in case he has also been instituted by the nothing but his own heirs are denied the right to
testator to the whole or to an aliquot part of such free represent.
portion. This is so, because of the principle that, in → The effects of repudiation are different from those
testamentary succession, the right of representation of predecease or incapacity.
pertains only to the legitime and not to the free portion. → Whether voluntary or compulsory, the heir who
repudiates his inheritance cannot transmit any
Example: T has a friend X whom he instituted as heir right to his own heirs. This rule is absolute.
to an estate of P100,000. X dies before T but leaves a
son Y. Upon T’s death, will Y get anything? It should be remembered that: “The representative (the
A: No, because X, the father of Y, was a voluntary heir person inheriting by right of representation) does not
who predeceased the testator. The estate should succeed the person represented, but the one whom the
therefore go to the intestate heirs of T. person represented would have succeeded.
Problem Illustrating the Effects of Predeceasing

the Testator
A and B are legitimate children of T. C is a legitimate

child of A. The estate is P100,000. A and B were
instituted heirs.
• If A dies before T, how much, if any, will C and B
get? A was a compulsory heir to the legitime of
P25,000. Therefore, C will get only P25,000 (the
legitime of A) in representation of A. The remaining
P75,000 will all go to B.
• If A is incapacitated, same answer as (a)
• If A renounces the inheritance, C gets nothing
since a person who renounces an inheritance

SECTION 3 is called to receive hereditary property in lieu of or
SUBSTITUTION OF HEIRS after another person.
✓ There may also be substitution of legatees and
Art. 857. Substitution is the appointment of another heir devisees.
so that he may enter into the inheritance in default of the
heir originally instituted. Q: May the heirs be allowed to be substituted for the
deceased?
Substitution otherwise referred to as a conditional A: Yes, without requiring the appointment of an
institution of heir administrator or executor.
= is the appointment of another heir in default of or
after the heir originally instituted General Limitation
= is the designation by the testator of a person or If the heir for whom a substitute is appointed is a
persons to take the place of the heir or heirs first compulsory heir, the rule is that the substitution cannot
instituted. affect the legitime of such heir.
= the appointment of another heir so that he may
enter into the inheritance in default of or Since the right to appoint a substitute for the heir
subsequent to the heir originally instituted instituted is based on the testator’s freedom of
= is nothing more than a subsidiary institution of a disposition, the same limitation which is imposed upon
second or subsequent heir, devisee or legatee, such freedom of disposition must also be imposed
subordinated to the principal or original institution upon such right to appoint a substitute.
and dependent upon some event which is more or
less uncertain; in other words, it is a conditional Art. 858. Substitution of heirs may be:
institution. (1) Simple or common;
(2) Brief or compendious;
Under substitutions, in general, the testator may either: (3) Reciprocal; or
(1) provide for the designation of another heir to whom (4) Fideicommissary
the property shall pass in case the original heir
should die before him/her, renounce the Kinds of Substitution Omitted in the New Civil
inheritance or be incapacitated to inherit, as in a Code
simple substitution (Art. 859); or Under the old Code, there were six classes of
(2) leave his/her property to one person with the substitutions of heirs. They were known as:
express charge that it be transmitted subsequently (1) vulgar or common,
to another or others, as in a fideicommissary (2) pupilar,
substitution. (3) ejemplar,
(4) fideicomisaria,
In simple substitution, the second heir takes the (5) brevilocua o compendiosa, and
inheritance in default of the first heir by reason of (6) reciproca.
incapacity, predecease, or renunciation. (Art. 859).
All of these classes of substitutions are retained under
Purpose of Substitution the new Civil Code with the exception of the pupilar and
Substitution was devised in order: ejemplar.
• to prevent the property from falling into the • Sustitucion pupilar — where the parents and
ownership of people not desired by the testator. other ascendants appointed substitutes for their
• to prevent the effects of intestate succession. descendants of both sexes under 18 years of age
• to allow the testator greater freedom to help or in case these descendants should die before
reward those who by reason of services rendered attaining this age. (Art. 776, old Civil Code).
to the testator, are more worthy of his affection and • Sustitucion ejemplar — where an ascendant
deserving of his bounty than intestate heirs appointed a substitute for his descendant over 18
years of age who has been legally declared to be
Defect of Codal Definition of Substitution incapacitated on account of being of an unsound
In the definition of substitution under Art. 857, the mind. (Art. 776, old Civil Code).
phrase “in default of the heir originally instituted” is
defective. Substitution Referred to in the New Civil Code
Simple or common substitution [also known as
This is so because in the fideicommissary substitution, sustitucion vulgar]
both the first and second heirs inherit. (Simultaneously, = is that which takes place when the testator
insofar as the right to succeed is concerned; and designates one or more persons to substitute the
successively, insofar as the enjoyment and possession heir or heirs instituted in case such heir or heirs
of the property are concerned.) should die before him, or should not wish, or
should be incapacitated to accept the inheritance.
Thus, a better definition has been suggested by
Roguin, a definition which includes the Brief or compendious substitution [also known as
fideicommissary substitution. He says that substitution sustitucion brevilocua o compendiosa]
is a “disposition by virtue of which a third person

= When there are two or more persons designated Thus, if A is instituted to 2/3 of the entire inheritance
by the testator to substitute for only one heir, the and B is instituted to 1/3, and the former dies before
substitution is called brief, the testator, or is incapacitated to inherit, or repudiates
= but when there is only one person designated to his inheritance, the result is that the latter shall acquire
substitute for two or more heirs, it is called the 2/3 portion which is rendered vacant as a substitute
compendious and the remaining 1/3 as an instituted heir.
Reciprocal substitution [also called sustitucion If there are three or more instituted heirs and they
reciproca] are designated mutually as substitutes for each other,
= When two or more persons are not only instituted the substitutes shall have the same share in the
as heirs, but are also designated mutually as substitution as in the institution.
substitutes for each other, the substitution is called
reciprocal Effect of Substitution
General Rule: Once the substitution has taken place,
Fideicommissary substitution [also known as the substitute shall not only take over the share that
sustitucion fideicomisoria] would have passed to the instituted heir, but he
= Is that which takes place when the fiduciary or first shall be subject to the same charges and conditions
heir instituted is entrusted with the obligation to imposed upon such instituted heir.
preserve and to transmit to a second heir the
whole or part of the inheritance, provided such Exception:
substitution does not go beyond one degree from (1) When the testator has expressly provided the
the heir originally instituted, and provided further, contrary;
that the fiduciary or first heir and the second heir (2) When the charges or conditions are personally
are living at the time of the death of the testator applicable only to the heir instituted.
Salazar v. CA Thus, if the testator has imposed upon his nephew,

GR 121510, Nov. 23, 1995 whom he had instituted as heir to the entire free portion
65 SCAD 705 of his estate, the condition that he shall get married to
FACTS: After the ejectment case was fi led, but before a certain girl, and a niece of the testator is substituted
judgment, the defendant died. His widow testified for the nephew, it is evident that the condition is
during trial. The trial court rendered a decision in favor personally applicable only to such nephew.
of the plaintiff. The widow claimed that the court did not
have jurisdiction over her and the other heirs of her Art. 859. The testator may designate one or more
husband because notwithstanding the fact that he had persons to substitute the heir or heirs instituted in case
already died, the trial court proceeded to render its such heir or heirs should die before him, or should not
decision without effecting the substitution of heirs wish, or should be incapacitated to accept the
required by the rules thereby depriving her of her day inheritance.
in court. Is her argument tenable?
A simple substitution, without a statement of the cases
HELD: No. Ejectment, which involves recovery of real to which it refers, shall comprise the three mentioned in
property, is a real action and as such, is not the preceding paragraph, unless the testator has
extinguished by the defendant’s death. A judgment in otherwise provided.
an ejectment case is inclusive between the parties and
their successors-in-interest and may be enforced not Simple or Common Substitution
only against the defendant but also against members The first paragraph talks of express substitution in case
of his family or privies who derive their right of of:
possession from him. Furthermore, the widow herself (1) predecease
submitted to the trial court’s jurisdiction by testifying (2) renunciation or repudiation
therein. She is now estopped to deny that she had not (3) incapacity
been heard in defense of her deceased husband.
Example: A instituted B as heir, and stated in his will
Number of Substitutes that in case B dies ahead of him (A), another person C
There is no limitation upon the number of persons who will substitute B. (Note that the designation must
may be designated as substitutes, just as there is no always be express).
limitation upon the number of persons who may be A made a will stating that should he die before B, his
instituted as heirs. relatives C and D would inherit certain properties and
that should either C or D die before A, the survivor
Shares of Substitutes (between C and D) would inherit all of said specifi ed
If there are only two instituted heirs and they are properties. However, B died before A. Would C and D
designated mutually as substitutes for each other, the get anything?
substitute shall acquire the entire share of the heir who
dies, renounces, or is incapacitated, even if the shares A: No, C and D would not get anything, because their
of both are unequal. designation was conditional, namely, that A should die
before B, but such was not the case. Had the condition

been followed, and had either C or D died before A, → example: A and B are instituted heirs, and C
there would have been substitution. is the substitute.
• The substitute does not acquire the share of
Q: The testatrix instituted an heiress and ordered that one of the instituted heirs who do not
the children of the heiress would substitute the heiress succeed, unless otherwise provided by the
should said heiress die after the testatrix. Is this a case testator for in such case, the share shall go to
of simple substitution? the intestate heir of the heir who does not
A: No, this is not a case of simple substitution. In simple inherit or to the other instituted heirs by right
substitution of this nature, the heir or heiress dies of accretion.
before, and not after the testator or testatrix.
NOTE: The brief or compendious substitution is really
Some Instances When the Substitution is a variation, either of the simple or the fideicommissary
Extinguished substitution. Hence, an example (a), in case of
(1) when the substitute predeceases the testator predecease, repudiation, or incapacity of A, the other
(2) when the substitute is incapacitated two will take his place. Here, we have an example of
(3) when the substitute renounces the inheritance the variation of the simple substitution.
(4) when the institution of heir is annulled (say by
preterition) Art. 861. If heirs instituted in unequal shares should be
(5) when the institution or the substitution is revoked reciprocally substituted, the substitute shall acquire
by the testator the share of the heir who dies, renounces, or is
(6) when a will is void or disallowed or revoked incapacitated, unless it clearly appears that the
intention of the testator was otherwise. If there are
Q: T made a will instituting X as heir, and Y as more than one substitute, they shall have the same
substitute. In 1998, Y died, leaving Z, his child. In 2003, share in the substitution as in the institution.
T died but X is incapacitated to inherit. Is Z going to
inherit from T? Reciprocal Substitution
A: No, because Y may be considered a voluntary heir, This Article speaks of the reciprocal substitution, the
and since he predeceased the testator, he transmits essence of which is that the instituted heirs are also
nothing to his own heirs. In the absence of any other made the substitutes of each other.
provision in the will, legal succession will take place.
Example of First Sentence
Q: T made a will instituting X as heir, and Y, as T instituted A to 2/3 and B to 1/3. If A predeceases, is
substitute. T died on Jan. 5, 2004. X renounced the incapacitated, or renounces, his share of 2/3 goes to B.
inheritance on Jan. 7, 2004. Y died on Jan. 8, 2004. If B predeceases, is incapacitated, or renounces, his
Can Z, the child of Y get anything from T’s estate? share of 1/3 goes to A.
A: Yes, because this is not a case of predecease on
the part of Y, who after all survived the testator, and Meaning of Second Sentence
immediately inherited from T, subject to the condition The second sentence says that “if there are more than
of X’s non-inheritance. Since the condition was fulfilled one substitute, they shall have the same share in the
there is no doubt that Y inherited. True, Y is now dead, substitution as in the institution.” This may, if
but his son Z can share in T’s estate, not as an heir of interpreted literally, result in certain cases either in:
T, but merely to get the share already inherited by his (a) partial intestacy
father Y. (b) or absurdity
HENCE, the words “same share” should be interpreted
to mean “same proportionate share.”
Art. 860. Two or more persons may be substituted for
one; and one person for two or more heirs.
NOTE: Reason why substitutes inherit in the
substitution in the same proportion as in the institution:
Brief or Compendious Substitutions The presumption is that the testator wanted it this way,
This Article speaks of the brief or compendious otherwise, if their shares were to be absolutely equal,
substitution, both terms of which may be used they would not have been instituted unequally. (Of
synonymously or interchangeably. course, if the institution was in the proportion of 1 is to
1, this would be the same proportion in the
However, properly, there are two kinds of substitution substitution.)
here:
(1) the brief substitution — when two or more take It is believed that Art. 861 applies also to substitutions
the place of one (plurality of substitutes) in legacies and devises.
→ example: A is an instituted heir, and B and C
are his substitutes. Q: Will Art. 861 apply even if the institution was in equal
• The share of the original heir is divided shares? (NOTE that the law says “unequal shares.”)
equally among the several subsitutes, unless A: Yes. The same principle applies. The law uses
otherwise provided by the testator. “unequal” only to clear up former doubts on the matter
(2) the compendious substitution — when one in the case the institution was in unequal shares.
takes the place of two or more (plurality of persons
substituted)

Art. 862. The substitute shall be subject to the same Examples illustrating the difference:
charges and conditions imposed upon the instituted SIMPLE — T institutes A as heir, and appoints B as
heir, unless the testator has expressly provided the substitute if A does not inherit. (It is clear here that
contrary, or the charges or conditions are personally either A or B will inherit). (ALTERNATIVE
applicable only to the heir instituted. SUCCESSION)
FIDEICOMMISSARY SUBSTITUTION — T institutes

Effect on the Substitution of Charges and
A as first heir. The will states that A should preserve
Conditions Imposed in the Institution
and transmit later on the estate to B, who is A’s son. (It
General Rule: If the substitute inherits, he must fulfill
is clear here that upon T’s death, A will inherit. Later
the conditions imposed on the original heir.
on, A will have to deliver the property to B who has also
→ Reason: We presume that the testator
inherited as second heir. In other words, in the
intended the substitute to stand on the same
fideicommissary substitution, both heirs inherit).
footing as the original heir.
[NOTE: In the example above:
Exceptions: (1) A — is the first heir, or fiduciary, or heredero,
(1) if the testator has expressly provided the
fiduciaro, or trustee. (He has the obligation of
contrary preserving and transmitting.)
→ this must appear in the will (2) B — is the second heir, or fi deicommissary or
(2) if the charges or conditions are personally fideicomisario or benefi ciary or cestui que trust.
applicable, only to the heir instituted (He eventually receives the property.)
→ This occurs when the personal qualifications (3) T — is the testator or decedent or the
of the original heir had been considered by the fideicomitente
testator in designating said original heir.
[NOTE ALSO that both the heirs inherit the property or
Example: T instituted A, pianist, as heir, provided that right to it SIMULTANEOUSLY, although the enjoyment
A would give a piano concert a month after T’s death. and possession are SUCCESSIVE.].
B was made substitute. If A predeceases T, B is not
required to give the concert if he is not a pianist himself. Distinction from TRUST: Neither should
fideicommissary substitution be confused with a trust.
Art. 863. A fideicommissary substitution by virtue of The essential difference between the two lies in the fact
which the fiduciary or first heir instituted is entrusted that:
with the obligation to preserve and to transmit to a • in FCS, both the fiduciary and the
second heir the whole or part of the inheritance, shall be fideicommissary heirs are true heirs of the
valid and shall take effect, provided such substitution testator, which cannot be said of the trustee.
does not go beyond one degree from the heir originally As a consequence, the fiduciary heir in
instituted, and provided further, that the fiduciary or fideicommissary substitutions is entitled to the
first heir and the second heir are living at the time of the enjoyment of the property
death of the testator. • while the trustee in trusts is not.
Requisites and Limitations of the

Fideicommissary or indirect substitution
Fideicommissary Substitution
= the substitution which takes place whenever the (1) There must be a FIRST HEIR called primarily or
testator institutes a person as heir, entrusting him preferentially to the enjoyment of the property.
with the obligation to preserve and to transmit to a (2) There must be an OBLIGATION clearly imposed
second heir the whole or a part of the inheritance. upon him TO PRESERVE AND TRANSMIT to a
= is that by virtue of which a testator institutes a first third person the whole or part of the inheritance
heir, and charges him to preserve and transmit the (part only if the substitution refers merely to that
whole or part of the inheritance later on to a part).
second heir. (3) There must be A SECOND HEIR.
(4) The 1st and the 2nd heirs must be only one degree
This substitution exists with the concurrence of three apart.
persons: (5) Both heirs must be alive (or at least conceived) at
(1) the testator who orders the substitution, the time of the testator’s death. (Art. 863). [
sometimes known as the fideicomitente; (6) Must be made in an EXPRESS manner
(2) the first heir charged with the preservation and (7) Must not burden the legitime. (This is true for all
the transmission of the inheritance, known as the kinds of substitutions, for after all, the compulsory
heredero fiduciario or fiduciary; and heirs are entitled to the legitime as of RIGHT.).
(3) the second heir to whom the inheritance is (8) Must not be conditional.
transmitted, known as the heredero
fideicomisario or fideicommissary. First Requisite — “First Heir”
• The first heir must himself be capacitated, and
must accept the inheritance if he wants to enjoy
Distinction from Simple Substitution: The most the same.
important difference is that while in the simple
• He is not mere trustee for while he also
substitution only ONE of the heirs inherits, in the
administers, he carries out not another’s wishes
fideicommissary, BOTH inherit.
but his own, insofar as management is concerned. Fourth Requisite — The First and the Second
Moreover, he enjoys the use and the fruits, Heirs Must be ONE DEGREE Apart
unlike a trustee. Under Art. 863, the second heir or the fideicommissary
• He is not mere agent or delivery boy who is obliged to whom the property is transmitted must not be
to do nothing but deliver the property. beyond one degree from the first heir or the fiduciary.
• He is indeed almost like a usufructuary, with the
right to enjoy the property. Thus, like a A fideicommissary substitution is, therefore void, if the
usufructuary, he cannot alienate the property first heir is not related by first degree to the second heir.
o Like a usufructuary, he is implicitly
bound to make an inventory to know Meaning of one degree — Opinion is divided on this
what properties he must preserve and point.
transmit. (1) According to the Spanish Supreme Court, one
o But unlike a usufructuary, he is not degree means one transfer, one transmission, or
required to furnish a bond. one substitution, the purpose being to prevent
o Unlike a usufructuary also, he is entitled successive entailments, regardless of relationship.
to a refund of useful improvements, at (2) According to others like Manresa and Sanchez
least insofar as an increase in value is Roman, one “degree” means one “generation.”
concerned, whereas an ordinary This is because the word “degree” as used in the
usufructuary is not entitled to a Civil Code — on intestate succession — refers to
reimbursement, but merely to a removal “generation.”
of them in case this can be done without → This means that the substitute may be the
substantial injury to the property. parent or child of the first heir — no other
person can be the fideicommissary.
Second Requisite — To preserve and transmit → Hence, under this view it would be proper to
• The obligation to preserve and transmit must have the following transfers: 1st heir to his
be given clearly and expressly, either by giving the son, then from 1st heir’s son to the 1st heir’s
substitution this name of “fideicommissary father to the 1st heir’s daughter, etc.
substitution,” or by imposing upon the first heir the → Note that the relationship is always counted
absolute obligation to deliver the property to a from the 1st heir, not from the others.
second heir. → This is the opinion also of Senators Arturo
 If a mere suggestion, advice, or request is made Tolentino and Ambrosio Padilla.
instead of an obligation, there is no
fideicommissary substitution. In such a case, there Fifth Requisite — Both the First and the Second
will be a simple institution of the first heir, and the Heirs Must Be Alive (or at Least Conceived) at the
second heir gets nothing. Time of the Testator’s Death
→ This is because the nullity of the NOTE: A conceived child is already considered born
fideicommissary substitution does not for all purposes favorable to it.].
prejudice the validity of the institution of the
heirs first designated; the fideicommissary Reason for the requirement:
clause shall simply be considered as not • To reduce as much as possible the number of
written. years the property will have to be entailed. For if
 If the obligation is conditional, there is no the second heir were still not even conceived at
fideicommissary substitution. the time the testator dies, a long time may elapse.
• Furthermore, the second heir himself inherits from
Third Requisite — Second Heir the testator, and one cannot inherit unless he be
• He is known as fideicommissary, and is a sort of alive or at least conceived.
naked owner. Upon transmission to him of the • Thirdly, a non-conceived child has no juridical
property, full ownership is consolidated in him capacity, and cannot therefore be given any legal
• Under the old Civil Code, according to Manresa, it right.
was possible that the 2nd heir be a juridical person
or a hospital or a class of persons, like the poor. (6 Obligations of Fiduciary
Manresa 40). (1) to deliver the inheritance
• Under the new Civil Code, however, it would seem (2) to preserve the property or inheritance and
that this construction is untenable as a rule since (3) to transmit the said property or inheritance to the
“one degree” really refers to a generation, and second heir or fideicommissary.
therefore to a natural person. However, there is (4) to make an inventory of the inheritance
really nothing intrinsically wrong with making the
second heir — a juridical person — in which case In order that the fideicommissary substitution shall be
one degree should mean one transfer. valid, it is essential that such obligation must be clearly
• Since the second heir inherits not from the first heir imposed.
but from the testator, said second heir must be → In other words, it is required that there must
capacitated to succeed not the first heir but the be an order or charge upon the first heir to
testator preserve and transmit to a third person or
entity the entire inheritance or a part thereof

Art. 864. A fideicommissary substitution can never Preservation of inheritance
burden the legitime Although the first heir or fiduciary is a true heir of the
testator, his rights as such over the property which is
Reason Why the Fideicommissary Substitution transmitted to him upon the death of the testator.
Cannot Burden the Legitime
The legitime is expressly reserved for the compulsory The obligation to preserve excludes the right to dispose
heirs. (Art. 886). As a matter of fact, no substitution of the property either by an act inter vivos or an act mortis
any kind can be imposed on the legitime. causa.
Substitution, therefore, can only refer to the free As Scaevola says, “the fiduciary heir has all the
portion. Any burden on a legitime is simply qualities of a usufructuary, but he also has those of an
disregarded. absolute owner, without the power of alienation?
However, he may alienate his right of usufruct over the

Example
property.
T had an estate of P1 Million. He gave F, a friend,
P500,000. On the remaining P500,000 he imposed a
Corollary to the obligation, of the fiduciary heir to
fideicommissary substitution with T’s child as first heir.
preserve is the obligation to make an inventory. Art.
The son can disregard completely the substitution
865, par. 2, impliedly recognizes this obligation, since
since it was imposed on his legitime.
it would be impossible for the fiduciary to make the
necessary deductions for legitimate expenses, credits
Art. 865. Every fideicommissary substitution must be and improvements once the property is delivered to the
expressly made in order that it may be valid. fideicommissary unless there had been a previous
inventory.
The fiduciary shall be obliged to deliver the inheritance
to the second heir, without other deductions than those Transmission of Inheritance
which arise from legitimate expenses, credits and The Code is silent with regard to the time when the
improvements, save in the case where the testator has property or inheritance shall be transmitted by the
provided otherwise. fiduciary to the fideicomissary.
→ According to Spanish commentators, the reason
Fideicommissary Substitution Must Be Made for this is the fact that the same is subject to the
Expressly testator’s freedom of disposition.
First paragraph of the Article — to be express, the
words “fideicommissary substitution” need not be Consequently, the testator can make the substitution
given; it is sufficient that there be the absolute purely, with a term, or even conditionally.
obligation of delivering (and therefore of
preserving) the property to the second heir. If he designates a day for the transmission or delivery
by limiting the period in which the fiduciary heir may
Moreover, if the intention is clear from the clauses of enjoy the property or inheritance, such designation
the will, same would be sufficient to effect this kind of shall be respected.
substitution.
If he does not fix a period for the transmission or
Upon the other hand, just because the words delivery, it is presumed that he leaves the matter to the
“fideicommissary substitution” were used, it does not discretion of the fiduciary.
necessarily mean that it takes effect for after all, the
other essential requisites may be absent And if there is doubt or litigation regarding the time for
such transmission or delivery, it is presumed that it will
When the Inheritance Is Supposed to Be Delivered be made after the death of such fiduciary.
to the Second Heir
In the absence of a period fixed by the testator, the When the substitution is conditional, the
inheritance must be delivered at death of the first fideicommissary has only a mere hope or expectancy
heir. pending the fulfillment of the condition, but once the
condition is fulfilled, the obligation to transmit or deliver
Extent of the Inheritance to be Delivered the property arises.
This DEPENDS ON THE INTENT of the testator.
Deductions To Be Made in Case of Transmittal to
It may be that he ordered a fideicommissary Second Heir
substitution only on one third of the property. (1) Legitimate expenses — like necessary repairs
for the preservation of the property; and the
Unless specified, it is understood that the whole increase in value occasioned by useful
property received by a first heir in a fideicommissary improvements.
substitution must be delivered. = refer to those which were made for the
acquisition and preservation of the
property or inheritance.
[NOTE: The actual expenses for useful improvements
are not reimbursable.].

Examples of useful improvements are: a house, a after the expiration of ten years, there is no
fence. Other legitimate expenses include those spent question that the latter shall be entitled to the
to defend the property from usurpation by others. entire estate from the moment of the death of the
testator. If he dies before the expiration of the
 Expenses for luxury are of course not to be period and before the death of the fiduciary, his
reimbursed. right to the estate shall be transmitted to his own
heirs.
(2) Legitimate credits. → When the fideicommissary substitution is
= they include all advances made by the conditional, however, the fideicommissary heir
fiduciary for the benefit of the estate in the has only a mere hope or expectancy.
nature of the expenses mentioned above Consequently, if the fideicommissary dies
(3) Legitimate improvements. before the condition has been fulfilled, he
= refer to necessary as well as to useful acquires no right to the object of the
expenses fideicomisum, and, as a consequence, he
transmits no right whatsoever to his own heirs.
NOTE: Of course, more can be deducted if so provided
by the testator. Rules if Second Heir Predeceases the Fiduciary
(not theTestator)
NOTE: Deteriorations caused by fiduciary’s malice or The second heir inherits, not from the first heir, but from
negligence must of course be shouldered by him. the testator. Hence, we have Art. 866.
NOTE: If the property is destroyed by a fortuitous The Article applies only when all the essential
event, the obligation to deliver is generally requisites for a fideicommissary substitution are
extinguished. present, particularly the requirement that both heirs
must be alive when the testator dies. In other words,
The amount of the deductions to which the fiduciary is while it is permissible for the second heir to predecease
entitled, however, is not the actual amount of the the first heir, neither must predecease the testator.
expenses, but the INCREASE IN VALUE OF THE
PROPERTY OR INHERITANCE. Consequently, the Q: T instituted A as 1st heir, and B as 2nd heir. T died
property is really preserved. in 2003. B died in 2004, leaving a son C. On A’s death,
will C get the property?
Art. 866. The second heir shall acquire a right to the A: Yes, on T’s death in 2003, A got the property and on
succession from the time of the testator’s death, even A’s death, same should go to the heirs of B. B really
though he should die before the fiduciary. The right of had already inherited from T since he acquired the right
the second heir shall pass to his heirs. from T’s death; and his right goes to C, his heir, even if
B predeceased the fiduciary A. Had B predeceased T,
Rights of Fideicommissary. B would never have acquired any right to the property
Under this article, the second heir or fdeicommissary and would not be able to transmit same to his own heir
inherits, not from the first heir or fiduciary, but from the C. (Art. 866; Art. 863).
testator or fideicomitente.
Art. 867. The following shall not take effect:
In Perez vs. Garchitorena, however, rightly observed (1) Fideicommissary substitutions which are not made
that the fact that the fideicommissary is entitled to the in an express manner, either by giving them this name,
estate from the time the testator dies, since he is to or imposing upon the fiduciary the absolute obligation
inherit from the latter and not from the fiduciary, is a to deliver the property to a second heir;
natural consequence of a fideicommissary substitution (2) Provisions which contain a perpetual prohibition to
rather than a requisite alienate, and even a temporary one, beyond the limit
fixed in Article 863;
Q: What is the nature of the right of the fideicommissary (3) Those which impose upon the heir the charge of
heir pending the delivery or transmission of the paying to various persons successively, beyond the
property or inheritance? limit prescribed in Article 863, a certain income or
A: It is evident from the provision of Art. 866 that he pension;
acquires a right to the inheritance from the moment of (4) Those which leave to a person the whole or part of
the death of the testator. the hereditary property in order that he may apply or
→ It must be noted, however, that this right is subject invest the same according to secret instructions
or without prejudice to the corresponding right of communicated to him by the testator.
the fiduciary heir.
→ Stated in another way, if the fiduciary is entitled to Void Substitutions
all of the rights of a usufructuary, the The four rules which are contained in Art. 867 are
fideicommissary is also entitled to all of the rights intended to implement the limitations upon
of a naked owner. fideicommissary substitutions which are prescribed in
→ Thus, if the testator designates A and B as the Art. 863 as well as the requirement which is stated in
fiduciary and fideicommissary heirs, respectively, the first paragraph of Art. 865.
of his entire state, imposing the obligation upon A
to preserve and to transmit the entire estate to B

Testamentary Dispositions Akin to Art. 863, since C is not a first degree relative of A who
Fideicommissary Substitutions originally inherited the property.
Purpose of the Article — to prevent conditions which
would entail the property for a long time and result in a Payment of Income or Pensions
case worse than the fideicommissary substitution. The third rule seeks to implement the limitations
prescribed in Art. 863 by declaring as ineffective those
Besides being a logical corollary to the rule stated in dispositions which would render such limitations
the first paragraph of Art. 865, it is also a confirmation illusory. In this case, there is in reality no substitution
of the principle that in fideicommissary substitutions but an institution of an heir with a charge; however, the
there must always be an obligation clearly imposed Code applies by analogy to the beneficiaries the same
upon the first heir or fiduciary to preserve and to limitations which are applied to fideicommissary
transmit the property or inheritance to the second heir substitutions
or fideicommissary
Example of the paragraph: T instituted A as a sole heir,
Perpetual Prohibition to Alienate with the obligation of paying a periodical income of
The second rule is evidently designed to prevent the P20,000 a month to B, and after B’s death to C. This
perpetual or temporary entailment by the testator of his would be proper provided that B and C are one degree
property apart and both are living at the testator’s death. If the
pension would be given to B first, then to C (son of B)
The prohibition to alienate is good only for twenty upon B’s death, then to D (son of C) upon C’s death,
years. Beyond that, it is void. It is submitted that this this would be very prejudicial to A. Therefore the law,
is what is really meant by the law. in the problem given, would require him to pension only
B, then C after B’s death. To require him to pension
Q: A gave a devise of land to X, and told him never to also D would be to go beyond the limits of Art. 863.
alienate the property. Is the stipulation valid?
A: Strictly speaking, the stipulation is of no effect (Art. Attention must be focused on the word “successively.”
867, No. 2), but considering Art. 870, it is submitted that
same would be valid, but only for the first twenty years. [NOTE: If those to receive pensions will be given
Thus, X can sell the land after twenty years, but not simultaneously and not successively, it would be
before. permissible to require him to pension as many people
as he could, but of course the total amount should not
Temporary prohibition to alienate go beyond the value of the inheritance, unless of
In case there is a fideicommissary substitution, the course the heir consents.
prohibition to alienate imposed on the fiduciary is
allowed even if more than 20 years have elapsed, Effect of Secret Instructions
otherwise, there may be nothing to deliver, and the The fourth rule has for its object the prevention of the
purpose of the substitution is frustrated. transmission of property by secret instructions so that
it may not be applied for purposes which are illegal or
Example: T instituted A as first heir, and B as second illicit or in order that it may not pass to those who are
heir in a fideicommissary substitution. T died and A got incapacitated to inherit from the testator.
the property. If A lives for, say, fifty years more, can A
sell the property? Here, there is no fideicomissary substitution since there
A: No, he must preserve the property till his death, then is no duality of heirs; in reality, there is a simple
B takes the property. institution of heirs, but the inheritance is not for the
benefit of the instituted heir since it will be applied or
invested according to the secret instructions which had
In case there is NO fideicommissary substitution, the been communicated to such heir by the testator. In
testator can prohibit the heir, and all those who may such case, the institution of heir is valid, although the
inherit from the latter, for a total period of twenty years, instructions are void.
provided that same prohibition will not go beyond the
limits imposed by Art. 863. The law says that dispositions which leave to a person
Example: T instituted A as his only heir, but prohibited the whole or part of the hereditary property in order that
him and all who may subsequently inherit from him to he may apply or invest the same according to secret
dispose of the property for a period of twenty years. T instructions communicated to him by the testator, are
then died. A is bound not to alienate for 20 years. But of no effect. (Art. 867, par. 4).
A dies 3 years after T. B, the son of A then inherits the
property from A. Is B still bound to respect the Example: T made a will giving A P1 million to dispose
temporary prohibition? of in accordance with secret instructions he had given
A: Yes, for the next 17 years. Suppose B dies after 10 him. If A is supposed to act only as a middleman or
years more, and the property is in turn inherited by C agent, both the secret instructions and the giving him
who is his son, is C bound not to alienate for the of the money should be disregarded, for both are void.
remaining 7 years? It may happen indeed that this was done only to benefit
A: No more, because although a total of 13 years only an unknown incapacitated person (remember the
has lapsed, still to impose the prohibition for the fideicomiso), or the agent will openly violate the
remaining 7 years on C would be beyond the limits of instructions — for he cannot of course be checked —
such instructions being secret. Of course, if A was

really being instituted or being given a legacy, this → This is what is meant when the law states that
should be ascertained from the wordings of the will. He when usufruct is given to various persons
will get the property, and only the secret instructions successively, the provisions of Art. 863 (or
will be disregarded. fideicommissary substitutions and their limitations)
should be applied.
Art. 868. The nullity of the fideicommissary substitution → Reason for the law: Unless these limitations are
does not prejudice the validity of the institution of the observed there is a danger that the property would
heirs first designated; the fideicommissary clause shall be entailed for an unreasonably long period of
simply be considered as not written. time.
Effect of Void Fideicommissary Substitutions. Art. 870. The dispositions of the testator declaring all or
According to Art. 868, the nullity of the fideicommissary part of the estate inalienable for more than twenty
substitution does not prejudice the validity of the years are void.
institution of the heirs first designated; the
fideicomissary clause shall simply be considered Disposition Declaring Estate Inalienable
as not written. If the testator states in his will that the property
bequeathed or devised shall not be alienated for a
This rule is of course logical considering that the period of fifty years, under this provision, the prohibition
fideicomissary substitution is the subsidiary institution, shall be valid only for twenty years, but with respect to
while the first institution of heirs is the principal the excess it is null and void.
institution.
If the prohibition to alienate is perpetual, there is no
Art. 869. A provision whereby the testator leaves to a reason why the entire prohibition should be nullified.
person the whole or part of the inheritance, and to
another the usufruct, shall be valid. If he gives the In order to effectuate the testatorial intent, it shall be
usufruct to various persons, not simultaneously, but valid but only for twenty years.
successively, the provisions of Article 863 shall apply.
Q: A was given his legitime in the form of a house. In
Disposition of Usufruct to Various Persons the will, A was prohibited to sell the house within a
The rule stated in the first sentence of Art. 869 is a period of 10 years. Can A sell the house even before
the expiration of said period?
logical consequence of the principle that the owner of
A: Yes. This prohibition, even if less than 20 years,
a thing has the power to dispose of not only the
whole but also any part of his right of ownership cannot be applied to the legitime.
over the thing.
If a devise or legacy is given and the recipient is
With regard to the rule stated in the second sentence, prohibited to alienate, but no period is fixed regarding
although the rules regarding fideicomissary the length of the prohibition, it is understood that the
substitution are applicable, in reality, there is no prohibition is good for twenty years. The same is true if
fideicommissary substitution, but merely a simple the prohibition is for “forever.”
institution of heir combined with a legacy
If the devisee or legatee is prohibited to alienate “as
long as he lives,” then the prohibition is good for twenty
Example1: A, in his will, gave to B the naked ownership
years if he lives for said period or longer; if he dies
of his (A’s) house and C the usufruct over the same.
This is allowed because the naked ownership of the sooner, it is clear that the prohibition is ended, and
property is really distinct and severable from the use of therefore his own heirs will not be burdened by the
prohibition.
fruits (the beneficial ownership) thereof.
In example (a), may the usufruct be given C and D, a Art. 870 does not apply if there is a fideicommissary
stranger, simultaneously? substitution, for this must be governed by Art. 867(2).
A: Yes, and in such a case, C and D would be
In default of the heirs of the decedent, the state will
coowners of the usufruct and of the usufructuary rights.
The law distinctly provides that “usufruct may be inherit the share. Additionally, the State will be co-
constituted on the whole or part of the fruits of the thing, petitioner entitled to possession and enjoyment of the
property (Adlawan v. Adlawan 479 SCRA 275; 2006)
in favor of one or more persons, simultaneously or
successively, and in every case, from or to a certain
day, purely or conditionally.” (Art. 564, Civil Code).
Example2: A disposed of his house in a will giving the

naked ownership of the same to B; and to C and D,
successively, the usufruct. This means that C first gets
the usufruct, and after C dies, the usufruct goes to D.
Is this disposition of the usufruct valid?
A: Yes, provided that — (1) D is a first degree relative
of C; (2) and both C and D are alive at the time A, the
testator, dies.

SECTION 4 Conditional Testamentary Dispositions
CONDITIONAL TESTAMENTARY DISPOSITIONS A testamentary disposition is conditional when its
AND TESTAMENTARY DISPOSITIONS WlTH A effectivity is subordinated to the fulfillment or
TERM nonfulfillment of a future and uncertain fact or event.
This future and uncertain fact or event upon the
Art. 871. The institution of an heir may be made fulfillment of which the testamentary disposition is
conditionally, or for a certain purpose or cause. made to depend is what is known as a condition.
Freedom of Disposition The condition can be imposed only on the FREE

The provision of Art. 871 is a restatement of the PORTION, never on the legitime. (Art. 904, Civil Code).
testator’s freedom of disposition. Although the article
speaks only of institution of heirs, there is no reason In case of doubt as to whether a provision in the will
why the provision cannot be applied to any kind of imposes a condition or not, the doubt shall be resolved
testamentary disposition. against its EXISTENCE in consonance with the nature
of testamentary dispositions as generally acts of
Consequently, whether the testamentary disposition is liberality of generosity.
an institution of heir, or a devise or legacy, under this
article, the testator is free to impose any condition, or Conditions Not To Be Presumed
mode, or term Conditions to affect the disposition must appear in the
language of the will, and cannot be presumed.
Various Kinds of Institutions
Before a testamentary disposition is considered
The institution of heir may be made:
conditional, it is necessary that the condition must
(1) Simple or pure
fairly appear from the language used in the will.
(2) Conditional. (Arts. 871-877, 883-884).
(3) with a Term. (Arts. 878, 880, 885).
 If it does not appear in the will itself, or in a
(4) Modal (for a certain purpose or cause) (Arts. 871,
document executed with the same formalities as a
882 and 883).
will, it is not binding. In such case the testamentary
disposition is pure, and not conditional
Definitions
Condition
 Parol evidence to prove the existence of oral or
= future and uncertain event, or a past event
other conditions cannot be allowed.
unknown to the parties, upon which the ✓ However, if the condition appears in a
performance of an obligation depends (Art. 1179, document incorporated by reference into the
Civil Code); will, it is proper to consider said condition.
= it is “every fact or event which is future or uncertain
to whose realization a judicial act is subordinated.”
Examples
= is a designation of some future and uncertain
• Of an institution of heir with a condition — A
event upon which the validity of an accepted
instituted B as heir provided that B passes the bar
obligation or testamentary provision depends
of 2003.
(Viso)
• Of an institution of heir with a term — A instituted
Term B as heir, the effects to commence in 2005.
= the day or time when an obligation either becomes • Of a modal institution — A gave P300,000 so that
demandable or terminates. (Art. 1193). the same may be spent for the interment of C, the
late husband of A.
= As applied to succession, it is the day or time when
the effect of an institution of the heir is to begin or
cease. Art. 872. The testator cannot impose any charge,
= A day certain is understood to be that which must condition, or substitution whatsoever upon the
necessarily come, although it may not be known legitimes prescribed in this Code. Should he do so, the
when. (Art. 1193, 3rd paragraph). same shall be considered as not imposed.
Modal institution Conditions Which Impair Legitime: No Charge,

= when the institution of an heir is made, for a certain Condition, or Substitution on Legitimes
purpose or cause. (Art. 871). The rule stated in Art. 872 merely reiterates the
• the statement of the object of the institution or the principle of the untouchability of the legitime of
application of the property left by the testator or the compulsory heirs.
charge imposed upon him. (Art. 882).
o Such statement shall not be considered a Example: A son was informed in a will by his father that
condition unless it appears that such was he (the son) would get his legitime only should he (the
his intention. (Art. 882) son) pass the bar in 1998. The son failed in said bar
= “modo” also signifies every onerous disposition by examination. Is he entitled to his legitime?
which the obligor imposed upon another and thus A: Yes, because his father had no right to impose any
limited his promise, such as demanding a loan in condition on his legitime. The condition here is
exchange for what the other person receive. considered as not imposed.

The Only Prohibition That Is Valid Time to be Considered
The testator can validly impose a prohibition against The time to be considered in finding out whether a
the PARTITION of the legitime, for a period not condition is impossible or illegal is the time when the
exceeding twenty years. (This is the only prohibition or condition is supposed to be fulfilled.
condition that can affect or burden the legitime).
Art. 874. An absolute condition not to contract a first or
Art. 1083 provides: “Every co-heir has a right to subsequent marriage shall be considered as not
demand the division of the estate, unless the testator written unless such condition has been imposed on the
should have expressly forbidden its partition, in which widow or widower by the deceased spouse, or by the
case the period of indivision shall not exceed twenty latter’s ascendants or descendants.
years as provided in Art. 494.
Nevertheless, the right of usufruct, or an allowance or
This power of the testator to prohibit division applies to
some personal prestation may be devised or
the legitime.
bequeathed to any person for the time during which he
Even though forbidden by the testator, the co- or she should remain unmarried or in widowhood.
ownership terminates when any of the causes for which
partnership is dissolved takes place, or when the court The Condition Not to Marry
finds for compelling reasons that division should be (1) ABSOLUTE PROHIBITION
ordered, upon petition of one of the co-heirs.” a. to contract a first marriage
b. to remarry
(2) RELATIVE PROHIBITION
Art. 873. Impossible conditions and those contrary to
c. to contract a first marriage
law or good customs shall be considered as not
d. to remarry
imposed and shall in no manner prejudice the heir, even
(3) A STOPPING OF A USUFRUCT, ALLOWANCE,
if the testator should otherwise provide. OR PERSONAL PRESTATION THE MOMENT
THE HEIR, LEGATEE, OR DEVISEE MARRIES
Impossible Conditions OR REMARRIES
If the condition is impossible in the sense that it is not
possible of realization because it is contrary to either, Absolute Prohibition to Contract a First Marriage
physical, juridical or moral laws, it shall be considered This condition is absolutely void, and may be
as not imposed. disregarded or considered not imposed. Reason for the
law: Such a condition is contrary to good morality and
However, the institution of heir or the devise or legacy public policy. There is NO exception here.
is not affected.
Undoubtedly, this condition is contrary to morals and
There is a presumption in this case that the condition public policy because it would deprive a person of one
is due to a mistake or oversight, or merely a whim or of his inherent or inalienable rights — the right to
caprice of the testator. Consequently, it must be choose his own status. As a consequence, the Code in
disregarded as a matter of justice to the instituted heirs, Art. 874 considers it as not imposed.
devisees or legatees
As in the case of impossible conditions, the validity of
Effect of Impossible or Illegal Conditions the institution of heirs or of the devise or legacy is not
Here the condition is considered void and unwritten affected, although the condition is void. In other words,
but the institution and testamentary disposition will be the institution shall be considered as pure and not
considered as valid. A whimsical error on the part of the conditional
testator is presumed to have been made.
Absolute Prohibition to Contract a Re-marriage
Example: A instituted B as heir provided that B could General Rule: void because it is contrary to morality
make a dead man live, otherwise B gets nothing. B will and public policy.
still be heir.
Exceptions: (when it is valid; Reason: justified
Reason for the law: In testamentary dispositions, the because of sentimental and economic reasons.)
condition is not Art. 873 as important as the generosity (1) when imposed on the widow or widower by the
and liberality of the testator. The impossible condition deceased spouse himself/herself
will just be disregarded. (2) when imposed on the widow or widower by the
ascendants or descendants of the deceased
Vague Wording of Conditions spouse (not the ascendants or descendants of the
If a condition is so vaguely worded that even after widow or widower)
applying rules on construction and interpretation, it is
still meaningless, contradictory, or cannot be Relative Prohibition to Contract a First Marriage or
understood, the condition will be regarded as an to Remarry
impossible condition and should therefore be This relative prohibition (prohibition to marry a
disregarded. particular girl, or at a particular time, or for a number of
years) is valid, UNLESS it becomes so onerous or
burdensome (don’t marry for 60 years; don’t marry in

the Philippines or in Asia) that the “relative” prohibition NOTE: It is submitted that if the favor to be done by the
really amounts to an absolute one. heir or legatee will NOT be made in a WILL, both the
disposition and the condition should be considered
NOTE: A stopping of a usufruct, allowance, or personal VALID.
prestation the moment the heir, devisee, or legatee
marries or remarries — is justified since the law allows Art. 876. Any purely potestative condition imposed upon
their giving for the time during which the person an heir must be fulfilled by him as soon as he learns of
remains unmarried or in widowhood. (Art. 874, second the testator’s death.
paragraph).].
This rule shall not apply when the condition, already
Q: H instituted his wife as sole heir (no other complied with, cannot be fulfilled again.
compulsory heirs existed) on condition that when she
becomes a widow, she must never marry. Two years A potestative condition is one the fulfillment of which
after H died, the widow remarried. Is she entitled to the depends purely on the heir. He must perform it
inheritance? personally. Nobody else must do it for him.
A: The condition is valid insofar as the free portion is
concerned, since this absolute prohibition was When Potestative Conditions Must Be Fulfilled
imposed by a deceased spouse — but is not valid If the condition is purely potestative, the general rule is
insofar as her legitime is concerned. Therefore, her that the heir must fulfill it as soon as he learns of the
remarriage makes her lose the free portion, but not the testator’s death.
legitime (for ordinarily, no condition can be imposed on
the legitime). This rule, however, is not applicable when the condition
already complied with, cannot be fulfilled again.
In synthesis, Art. 874, in an implicit manner,
authorizes the following conditions: Evidently, these rules are applicable only when the
(1) A generic condition to contract marriage; potestative conditions is of a positive, not a negative,
(2) a specific condition to contract marriage with a character.
determinate person; and
(3) a specific condition not to contract marriage with a Note that the purely potestative condition must be
determinate person. complied with AFTER (not before) the testator’s death.
Reason: It is only then that OBEDIENCE can be
Art. 875. Any disposition made upon the condition that indicated. Note also that in Art. 877, performance is
the heir shall make some provision in his will in favor of either BEFORE or AFTER.
the testator or of any other person shall be void.
Q: Is the condition to marry potestative or not?
Disposition Captatoria A: If it is to marry ANY girl, then it is potestative; but if
condition captatoria it is to marry a PARTICULAR GIRL, it does not depend
= The condition that the heir shall make some purely upon the will of the heir, for the girl may
provision in his will in favor of the testator or of any REFUSE. (On the other hand, for all girls in the world
other person to REFUSE is impossible.)
the effect of a condition captatoria is according to Art. Art. 877. If the condition is casual or mixed, it shall be
875, to nullify the disposition itself. sufficient if it happened or be fulfilled at any time before
or after the death of the testator, unless he has provided
The reason for the precept is that testamentary
otherwise.
succession is an act of liberality, not a contractual
agreement. Besides, to permit it would impair the heir’s
freedom of testamentary disposition with respect to his Should it have existed or should it have been fulfilled at
own property as well as allow the testator to dispose of the time the will was executed and the testator was
the property of another after the latter’s death. unaware thereof, it shall be deemed as complied with.
This is prohibited because it tends to make the making If he had knowledge thereof, the condition shall be
of the will a contractual act. Note that the disposition considered fulfilled only when it is of such a nature that
itself (and not merely the condition) is void. it can no longer exist or be complied with again.
Example: A gave in his will a legacy of a car to B on the Casual Condition

condition that B in turn, in his own will, would give A casual condition is one whose fulfillment depends
something to A. This disposition is void; in other words, exclusively upon chance and/or upon the will of a third
the legacy will not be given any effect. person.
Another example: A gave in his will a legacy of a Example: A gives B a legacy on condition that C wins
diamond ring to B on the condition that B in turn, in his the lotto. The fulfillment may be either before or after
own will, would finance the education of C. This A’s death.
disposition or legacy is also void. • If C had already won the lotto, and A did not
know this, the condition is deemed already

complied with, and B gets the legacy. (2nd Time of fulfillment:
par., Art. 877 Potestative v. Conditional or Mixed
• If C had already won the lotto, and A knew of The reason for this difference lies in the special nature
this, the condition is deemed fulfilled only if C of both kinds of condition.
again wins first prize. Unless this happens, B
cannot get the legacy. (3rd par., Art. 877). By its very nature, a potestative condition should be
Evidently, the only reason for imposing the complied with after the death of the testator, because
condition despite the testator’s knowledge of until then the will on which it depends may be modified
it having been done already is to REQUIRE it or even revoked.
to be FULFILLED AGAIN → In other words, until the testator dies, there is really
no condition with which the heir, devisee or
Mixed Condition legatee could comply, or as Sanchez Roman puts
A condition is mixed if it depends partly both upon the it, the conditional testamentary disposition is
will of the heir himself AND upon chance and/or the will merely in potentia.
of a third person.
It is different in the case of a casual or mixed
Example: A gives B a legacy on condition that B condition. Since its fulfillment is independent of or only
become a lawyer. The condition may be fulfilled either partly dependent upon the will of the heir, devisee or
before or after the death of A. legatee, it is sufficient that it happens or be fulfilled at
• If B is already a lawyer, and A did not know this, anytime before or after the death of the testator.
the condition is deemed complied with and B gets → It is, therefore, immaterial to the testator when the
the legacy. (2nd par., Art. 877). condition is fulfilled, unless knowing that said
• If B is already a lawyer, and A knew this, B gets condition has already been complied with, he
the legacy just the same, because the condition is should again demand the fulfillment thereof.
of such a nature that it can no longer be complied
with again. (3rd par., Art. 877). Effect of Substantial or Constructive Compliance
Substantial or constructive compliance (“tried his best”)
is sufficient for potestative conditions;
Time of Fulfillment
If the condition is casual or mixed, the rule is that it shall
it is also sufficient for mixed conditions when non-
be sufficient if it happens or be fulfilled at any time
fulfillment is caused by a person interested in the non-
before or after the death of the testator, unless he
fulfillment.
has provided otherwise.
In other cases however, there must be actual, not
There are two secondary rules, however, which we
merely constructive compliance.
must remember in relation to this rule. They are:
(1) If the condition had already been fulfilled at the time
Art. 878. A disposition with a suspensive term does not
of the execution of the will and the testator was
unaware thereof, it shall be deemed to have been prevent the instituted heir from acquiring his rights and
complied with. transmitting them to his heirs even before the arrival of
the term.
Thus, if the condition imposed upon the instituted heir
A is that he must get married to B, and at the time of
Effect of Suspensive Term
the execution of the will the two were already married
A suspensive term is one that merely suspends the
without the testator’s knowledge, the condition shall be
demandability of a right. It is sure to happen.
deemed to have been complied with.
A suspensive condition however suspends, not
(2) If the condition has already been fulfilled at the time merely the demandability, but even the acquisition itself
of the execution of the will and the testator had of the right.
knowledge thereof, the condition shall, as a rule, still
have to be complied with, unless it is of such a nature The classic distinction between a term and a condition
that it can no longer exist or be complied with again. is that a term is sure to happen, while a condition may
This exception is illustrated by the case of an heir who or may not happen.
is instituted subject to the condition that he must first
get married when, as a matter of fact, the testator is Example of a suspensive term: “If Maria dies.” The time
well aware at the time of the execution of the will that of death may be uncertain, but it is a sure thing.
he was already married. It is evident in this case that
the condition is of such a nature that it cannot be
Example of suspensive condition: “If Maria dies of
complied with; consequently, it is considered fulfilled.
cancer.” Maria will die, yes, but not necessarily of
However, if the heir becomes a widower before the
cancer. Hence, here the condition may or may not
death of the testator, then the general rule will still have
happen.
to apply; in other words, in order to be entitled to the
inheritance, he must get married again.
Example: A, who died in 2003, left a brother X but
instituted B, a friend, as his heir, commencing in 2008.
If in 2006, B dies, his estate would include the
properties to be received from the estate of A. True, up

to 2008, X, the legal or intestate heir, is considered Q: Who can demand for the constitution of the bond or
called to the succession pending the arrival of the term security?
(Art. 885), and can take possession of the properties in A: this bond or security is constituted in favor of those
the meantime (Art. 885) but this does not mean that B to whom the property would pass in the event that
is prevented from transmitting his rights in the property the testator’s mandate is not complied with (like the
to his own heirs, even before the arrival of the term (Art. intestate heirs or the substitute, etc.)
878), because after all, when 2008 arrives, X would → Hence, it is but logical that these same
have to turn over the property to B’s heir. (Art. 885). persons must have the right to demand for the
constitution of the bond or security.
[NOTE: There is, therefore, no contradiction between → Consequently, they can compel the heir,
Art. 878 and Art. 885.]. devisee or legatee to file the required bond or
security, and if such heir, devisee or legatee
Effect of Predeceasing a Suspensive Condition fails to do so, then he shall be placed in the
Suppose an heir instituted under a suspensive same position as an heir, devisee or legatee
condition (note that Art. 878 speaks only of a instituted or appointed under a suspensive
suspensive term) dies after the testator but before the condition, in which case, according to the
condition is fulfilled, does he transmit any right to his second paragraph of Art. 880, the estate
own heirs insofar as the estate of the testator is shall be placed under administration until
concerned? the security is given or until it is certain that it
A: It is submitted that the answer is NO, for he never will be impossible to perform that which is
inherited, being already dead at the time the condition prohibited by the testator.
is fulfilled, granting that it is indeed fulfilled.
EXAMPLE: A institutes B as heir on condition that B
Art. 879. If the potestative condition imposed upon the should not smoke for one whole year. He gets the
heir is negative, or consists in not doing or not giving inheritance right away, but he must first give a security
something, he shall comply by giving a security that he to guarantee he would not smoke for a period, of one
will not do or give that which has been prohibited by the year. In case he does smoke again within said period
testator, and that in case of contravention he will return he should return whatever he may have received,
whatever he may have received, together with its fruits together with its fruits and interest. (Art. 879).
and interests.
(Note that Art. 879 does not refer to a term. It refers to
Rule in Negative Potestative Conditions a condition, and if the condition is unfulfilled, it is as if
It refers to those potestative conditions which no rights were ever acquired.)
consist in not doing or not giving something, as
distinguished from positive conditions which consist in EXAMPLE: Negative Condition for a Certain Period
doing or giving something. A gave B a legacy of a monthly allowance of P10,000
with the stipulation that his allowance should continue
According to Manresa, if the potestative condition is as long as B would not smoke, and that the moment B
negative in character, there is neither reason nor smokes, the allowance would stop. When B does
motive for delaying the delivery of the property to smoke, he loses his right to the future allowance but
the heir, devisee or legatee since the effectivity of the does not have to return whatever he has already
right of such heir, devisee or legatee does not have to received. This is similar to the allowance or usufruct
depend upon any act of the latter nor upon the given while one remains unmarried or in widowhood.
fulfillment of any other requisite.
In this case, it is believed that no security is required. It
In other words, the right of the heir, devisee or legatee would be otherwise if the condition were “not to smoke
does not have to be held in suspense as in the case of for one year.” (Art. 879). In this case, security has to be
the heir, devisee or legatee whose right is subject to a given; otherwise, the estate would in the meantime be
positive condition; he acquires his right as a matter placed under administration. (Art. 880).
of course without any limitation other than that of
not doing or not giving something. Art. 880. If the heir be instituted under a suspensive
→ For this reason, the Code authorizes the condition or term, the estate shall be placed under
immediate delivery of the property to the heir, administration until the condition is fulfilled, or until it
devisee or legatee. becomes certain that it cannot be fulfilled, or until the
arrival of the term.
However, in order that such heir, devisee or legatee
shall not perform or give that which is prohibited, he is
The same shall be done if the heir does not give the
required to give a security or bond, which in Roman
security required in the preceding article.
law was known as “caucion muciana.”
→ In case the mandate or order of the testator is
violated, the heir, devisee or legatee shall return SUSPENSIVE RESOLUTORY
whatever he may have received, together with its CONDITION CONDITION
fruits and interests. a condition upon the a resolutory condition,
→ In case he cannot, the security shall have to fulfillment of which on the other hand, may
answer for the deficiency. successional rights be defined as a condition

arising from an upon the fulfillment of obligations of the administrator shall be governed by
institution of heir or from which | rights already the Rules of Court.
a devise or legacy are acquired | by virtue of
acquired an institution of heir or of Distinctions Between an Executor, an
a devise or legacy | are Administrator, an Administrator with a Will
extinguished or lost. Annexed, and a Special Administrator
The effectivity of the the testamentary When there is a will, an executor appointed in such
institution of heir, devise disposition is already will takes charge in carrying out the wishes of the
or legacy depends effective but subject to testator. “When a will has been proved and allowed, the
upon the fulfillment of the threat of extinction court shall issue letters testamentary thereon to the
the condition person named as executor therein, if he is competent,
in order that the heirs will if the condition is accepts the trust, and gives bond as required by these
be entitled to claim their fulfilled, the rights are rules.”
rights arising from the extinguished.
institution of heir and If there is no will, it follows that there can be no
from the legacy, it is executor, and therefore the Court appoints an
essential that the administrator, but only if an administrator is really
condition shall be required. Such an administrator will be given letters of
complied with. administration.
It is, therefore, clear that when the institution of
when the institution of heir or the devise or If there is a will, but no executor has been named
heir or the devise or legacy is subject to a therein, or if the executor named is either
legacy is subject to a resolutory condition, the incompetent or unwilling, the Court will if necessary
suspensive condition, rights of the heir, appoint an administrator, but this time he will be called
such condition has the devisee or legatee are administrator with a will annexed; and he will be
effect of suspending acquired immediately granted letters of administration with a will
not only the upon the death of the annexed.
demandability of the testator. These rights,
right, but the right however, are subject to A special administrator is one appointed temporarily
itself. the threat of as administrator pending the qualification of an
extinction. executor or the appointment of an administrator to
Consequently, what is meet the urgent needs of the estate.
acquired by the heir, If the event which
devisee or legatee is constitutes the Qualifications of Executor or Administrator
only a mere hope or resolutory condition No person is competent to serve as executor or
expectancy. It is, happens or is fulfilled, administrator who:
however, a hope or such rights are (1) is a minor;
expectancy that is extinguished or lost. (2) is not a resident of the Philippines;
protected by the law. (3) is in the opinion of the Court unfit to execute the
This is evident from the The inheritance or the duties of the trust by reason of drunkenness,
provisions of Arts. 880 devise or legacy shall, improvidence, or want of understanding or
and 881 of the Code. therefore, pass to those integrity, or by reason of conviction of an offense
who are legally entitled involving moral turpitude
to the same, as for
instance, the legal heirs. Rule With Respect to a Married Woman: A married
woman may serve as executrix or administratrix, and
Example — When There Is a Suspensive Condition the marriage of a single woman shall not affect her
A instituted B as heir provided that B passes the Bar in authority so to serve under a previous appointment.
2002. When A dies, the estate shall be placed under
administration. If B passes the Bar in 2002, the Preference in the Administration
administration ceases and B will now be entitled to the If no executor is named in the will, or the executor or
property, since the condition has been fulfilled. If B executors are incompetent, refuse the trust, or fail to
does not pass the Bar in 2002, then the legal heirs (like give bond, or a person dies intestate, administration
A’s brothers) will take over the property. shall be granted:
(1) To the surviving husband or wife, as the case may
When Administration Ceases: If there is a be, or next of kin, or both, in the discretion of the
Court, or to such person as such surviving
suspensive condition, and it “becomes certain that it
cannot be fulfilled” then the administration of the estate husband or wife, or next of kin, requests to have
will also cease, but this time, instead of being given to appointed if competent, and willing to serve;
the instituted heir; it will be given to the legal heirs (2) If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them,
be incompetent or unwilling, or if the husband or
Art. 881. The appointment of the administrator of the wife, or next of kin neglects for thirty days after the
estate mentioned in the preceding article, as well as the death of the person to apply for administration or
manner of the administration and the rights and to request that administration be granted to some
other person, it may be granted to one or more of

the principal creditors, if competent and willing to involved as certified to under oath by the parties
serve; concerned and conditioned upon the payment of any
(3) If there is no such creditor competent and willing claim that may be filed under Section 4 of this rule.
to serve, it may be granted to such other person
as the court may select It shall be presumed that the decedent left no debts if
no creditor files a petition for letters of administration
However, the Clerk of Court or any other court within two (2) years after the death of the decedent.
employee is generally looked upon with disfavor in the
matter of appointment as administrator of the estate of The fact of the extrajudicial settlement or administration
a deceased individual because of possible shall be published in a newspaper of general circulation
incompatibility in the discharge of duties. (Medina v. in the manner provided in the next succeeding section;
Court of Appeals, L-34760, Sep. 28, 1973). but no extrajudicial settlement shall be binding upon
any person who has not participated therein or had no
The surviving spouse is to be preferred, as in the notice thereof. (See Sec. 1, Rule 74, Rules of Court).
appointment of a regular administrator. The reason for
the preference is clear: aside from her share in the The law allows the extrajudicial partition by agreement
conjugal partnership, the spouse also is an heir of the of the heirs only if the decedent left no debts and the
deceased. She has therefore a greater interest in heirs and legatees are all of age or the minors are
administering the entire property correctly than any represented by their judicial and legal representatives.
other relative.
Where the deceased left pending obligations, the same
Role of the Probate Courts and Need of must be first paid before the estate can be divided; and
Administration unless the heir can reach an amicable settlement as to
Probate courts do not as a rule have authority to brush how the obligations should be settled, the estate would
aside the nomination of an executor and to appoint an inevitably be submitted to administration for the
administrator with the will annexed, unless the person payment of such debts. (Guico, et al. v. Bautista, et al.,
chosen by the testator is mentally unbalanced or L-14291, Dec. 13, 1960).
underage.
It should be noted that an ordinary action for partition
When there are no debts, and the heirs do not wish to cannot be converted into a proceeding for the
have an administrator (no executor having been settlement of the estate of a deceased, without
appointed), there is no reason why the estate should compliance with the procedure outlined in the Rules of
still be burdened with the costs and expenses of an Court.
administrator.
Q: Does this extrajudicial settlement by agreement
Two Exceptions to General Rule between heirs apply to both testate and intestate
(1) Extrajudicial settlements by agreement between succession?
heirs. A: Yes, in view of the use of the terms heirs and
(2) Summary settlement of estate of small value. legatees. (Leano v. Leano, 25 Phil. 180). However, it
must be noted that even in this case of extrajudicial
Extrajudicial Settlement by Agreement Between partition, the heirs and legatees must FIRST present
Heirs the will for probate (and this is so even if no one raises
If the decedent left no will and no debts and the heirs any question as to the authenticity and the execution of
are all of age, or the minors are represented by their the will).
judicial or legal representatives duly authorized for the The Court advanced two reasons:
purpose, the parties may, without securing letters of • firstly, the law expressly provides that no will shall
administration, divide the estate among themselves as pass property unless said will is probated and
they see fi t by means of a public instrument filed in the allowed;
office of the register of deeds, and should they • secondly, the probate of a will, which is a
disagree, they may do so in an ordinary action of proceeding in rem, cannot be dispensed with and
partition. substituted by any other proceeding, judicial or
extrajudicial, without offending against public
If there is only one heir (or one legatee or one devisee), policy designed to effectuate the testator’s right to
he may adjudicate to himself the entire estate by dispose of his property by will in accordance with
means of an affidavit filed in the office of the register of law and to protect the rights of the heirs and
deeds. legatees under the will thru the means provided by
law among which is the publication required under
The parties to an extrajudicial settlement, whether by the law. (Ventura v. Ventura, et al., L-11609, Sep.
public instrument or by stipulation in a pending action 24, 1959).
for partition, or the sole heir who adjudicates the entire
estate to himself by means of an affidavit shall file,
Q: Suppose the division or partition is made orally, will
simultaneously with and as a condition precedent to the
partition or division be valid as among the co-heirs and
filing of the public instrument or stipulation in the action
co-legatees?
for partition, or of the affidavit in the office of the register
A: Yes. The purpose of the requirement that it be in a
of deeds, a bond with the said register of deeds in an
public document and registered is to prejudice creditors
amount equivalent to the value of the personal property
and third parties. If as between strangers, even the

transmission of ownership through sales can be Gelacio Sebial
effected by oral contract or parol agreement (provided L-23419, June 27, 1975
of course there has been full or partial execution),
notwithstanding the requirement that it be put in writing; FACTS: If in the course of intestate proceedings, it is
there is no reason why a simple partition or division alleged that some of the assets of the deceased had
among co-heirs, an act where there is no change of been fraudulently conveyed to third persons, what
ownership but simply a designation and segregation of should the probate court do?
that part of the estate which belongs to each heir,
cannot be allowed. It is binding among the heirs, but HELD: The third persons may be cited to appear in
will not prejudice third persons. court, and may be examined under oath as to how they
came into possession of the assets, but a separate
Q: In the event that the heirs or legatees or devisees action is necessary to recover said assets.
should disagree as to the division of the estate, does a
special proceeding for the settlement of the estate have Art. 882. The statement of the object of the institution, or
to be brought? the application of the property left by the testator, or the
A: No. A simple action for partition would be sufficient charge imposed by him, shall not be considered as a
provided, of course, that the requirements set forth for condition unless it appears that such was his intention.
what should have been an extrajudicial settlement (See
Sec. 1, Rule 74, Rules of Court) are all present. That which has been left in this manner may be claimed
(Hernandez v. Andal, supra).
at once provided that the instituted heir or his heirs give
security for compliance with the wishes of the testator
Summary Settlement of Estates of Small Value and for the return of anything he or they may receive,
Whenever the gross value of the estate of a deceased
together with its fruits and interests, if he or they should
person, whether he died testate or intestate, does not
disregard this obligation.
exceed ten thousand pesos, and that fact is made to
appear to the Regional Trial Court having jurisdiction of
the estate by the petition of an interested person and Modal Institution
upon hearing, which shall be held not less than one (1) This Article refers to what is known as modal institution
month nor more than three (3) months from the date of or “institution modal” or “institucion sub-modo.’’
the last publication of a notice which shall be published
once a week for three (3) consecutive weeks in a A mode may be defined as the statement of the object
newspaper of general circulation in the province, and of the institution, or the application of the property left
after such other notice to interested persons as the by the testator, or the charge imposed by him.
Court may direct.
Consequently, if the testator attaches to an institution
the Court may proceed summarily without the of heir, or to a devise or legacy a statement of
appointment of an executor or administrator, and (1) the object of the institution of heir or of the
without delay, to grant, if proper, allowance of the will, devise or legacy, or
if any there be, to determine who are the persons (2) the application of the inheritance, devise or
legally entitled to participate in the estate, and to legacy, or
apportion and divide it among them after the payment (3) a charge upon the heir, devisee or legatee, the
of such debts of the estate as the court shall then find institution or the devise or legacy is modal, not
to be due; and such persons, in their own right, if they conditional, in character.
are of lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if Examples:
otherwise, shall thereupon be entitled to receive and • object of the institution —I institute A as my heir to
enter into the possession of the portions of the estate give him enough money to obtain a legal
so awarded to them respectively. education.
• application of the property left by the testator — I
The court shall make such order as may be just institute B as my heir. He will apply the properties
respecting the costs of the proceedings and all orders of my estate to the erection of a College of Law in
and judgments made or rendered in the course thereof Ortigas Avenue.
shall be recorded in the office of the clerk, and the order • The charge imposed by the testator — I institute A
of partition or award, if it involves real estate, shall be as my heir. He will devote 10% of the annual
recorded in the proper register’s office. income from my buildings for the establishment of
a professorial chair in Civil Law at the University of
Purpose of Settlement of Estates:The primordial Metropolis.
purpose of the law relative to the settlement of estates
is to strive to have the estate settled in a speedy [NOTE: If, in a will, the testator imposes as a duty
manner so that the benefits that may flow therefrom (“tungkulin”) on the heirs the obligation of allowing
may be immediately enjoyed by the heirs and (“pahihintulutan’’) a third person to be placed as a
beneficiaries. tenant on a certain parcel of rice land, the duty must be
complied with, and the heirs must take in said third
person as tenant. (Yambao v. Gonzales, et al., L-
10763, Apr. 29, 1961).].

Modal Institution Compared with Conditional → However, it is a necessary condition before
Institution delivery or payment is to be made that the
It is true that as a rule, the modal institution is not a instituted heir, or the devisee or legatee, or the
condition but when and if it is violated, the instituted heirs of such heir, devisee or legatee shall file a
heir is supposed to forfeit the inheritance; to return bond as security for the performance or
indeed anything he may have received together with its fulfillment of the obligation.
fruits and interest, if he should disregard this obligation. o In case of failure to comply with the mode
→ Inasmuch as there is an obligation, and or obligation, the heir, devisee or legatee
inasmuch as a violation of the obligation shall be compelled to return whatever he
results in forfeiture, it is believed that from this may have received by virtue of the
point of view there is no difference between a institution or of the devise or legacy,
modal institution and a conditional institution. together with its fruits or interests. In case
he cannot, the bond or security can be
However, one practical difference can be pointed out, made to answer for any deficiency.
namely, that in a modal institution, the inheritance
can be immediately demanded, provided that SOME PROBLEMS
security is given; whereas in an institution with a • A gave B a legacy of P300,000. B was instructed
suspensive condition, even if the heir wants to give to buy lands, retain a third of the lands and deliver
security, he will not be allowed to do so, and will the rest to C and D. Before B can get the
therefore not be allowed to get the property in the P300,000, does he have to give a bond?
meantime; instead, the property will be placed A: This is not a conditional legacy, but a modal legacy
under administration. (Art. 880). (modal institution). The Supreme Court, therefore,
decided under the old Civil Code that B does not have
When the condition however is resolutory or is to give a bond. (Fuentes v. Canon, 6 Phil. 117). But
negative, the property can be taken upon the giving of under the new Civil Code, he should give the bond,
a security (Art. 879), and from this point of view, there whether it is considered a resolutory condition (Art.
is hardly any difference between the modal institution 880) or a modal institution. (Art. 882).
on the one hand and the resolutory or negative
condition upon the other hand
• A gave B, a Chinese, legacy of P500,000,
P200,000 of which was for himself, and the
Examples: remaining P300,000 “for the expenses of
• “On condition that A marries B.” This is a interment of my late husband Don Nicasio Veloso.”
suspensive condition, and the estate is not Does B have to give a bond?
demandable pending the fulfillment of the A: This is not a conditional legacy. The Supreme Court
condition, even if security is offered. (Art. 880). therefore decided under the old Civil Code that B does
• “On condition that A does not smoke for a period not have to give a bond. (Chiong Joc-Soy v. Vano, 8
of one year.” This is a negative condition and the Phil. 119). But under the new Civil Code, he should
estate is demandable right away, provided that give the bond. (Art. 882).
security is given. If the condition is violated. A
forfeits the inheritance plus fruits and interests.
(Art. 879). • Can an institution apparently modal be considered
• “A is instituted heir. He will use the money for the conditional?
establishment of a law school.” This is a modal A: Yes. However, a mere direction in a will in
institution, and the estate is demandable right connection with the enjoyment of the legacy will not be
away, provided that security is given. If the order considered a condition, unless the intention of the
of testator regarding the disposition of the property testator to that effect is clearly shown. The “mode”
is disobeyed, A forfeits the inheritance plus fruits shall not be considered as a condition unless it appears
and interest. (Art. 882). that such was his intention. (Art. 882, 1st par.).
Fulfillment or Compliance Some Principles

The person or persons who are entitled to demand • When in doubt as to whether there is a condition
compliance with the mode or obligation are those who or merely a mode, consider same as a mode.
are directly interested in the obligation. • When in doubt as to whether there is a mode or
merely a suggestion, consider same only as a
If no person is directly interested in its fulfillment, or the suggestion.
identity of the person interested cannot be determined, • “The ‘condition’ suspends but does not obligate;
the obligation is a mere advise or recommendation of the ‘mode’ obligates but does not suspend (for he
the testator without any coercive force. who inherits with a mode is already an heir; one
→ In other words, it becomes a mere imperfect who inherits conditionally is not yet an heir).”
obligation of the heir, devisee or legatee.
Art. 883. When without the fault of the heir, an institution
Q: When may the inheritance or property be claimed by referred to in the preceding article cannot take effect in
the heir, devisee or legatee? the exact manner stated by the testator, it shall be
A: According to Art. 882, the delivery or payment of the complied with in a manner most analogous to and in
inheritance, devise or legacy can be claimed conformity with his wishes.
immediately.

If the person interested in the condition should prevent It is suspensive when the rights of the instituted heir,
its fulfillment, without the fault of the heir, the condition devisee or legatee to the inheritance, devise or legacy
shall be deemed to have been complied with. are suspended until the arrival of the date or time
designated by the testator;
Analogous or Substantial Compliance → suspensive term or ex die — effects begin from a
The 1st paragraph deals with analogous or substantial certain day (Example: “beginning 2008”)
compliance.
It is resolutory when such rights are immediately
Example: “Buy a new 2003 BMW.” If this cannot be demandable, although they are extinguished upon the
obtained, a slightly used 2002 BMW will perhaps be arrival of the date or time designated by the testator.
suitable. → resolutory term or in diem — effects cease on a
certain day (Example: “up to 2008”)
Constructive Fulfillment → ex die in diem — from a certain day to a certain
Example of the 2nd par.: A institutes a friend B as heir day (Example: “beginning 2008 until 2009”)
provided B passes the bar of 2003. If C, a brother of A
(and the only surviving relative of A) inflicts injuries on Rule if Term is Suspensive
B such that B cannot take the bar exams for 2002; it is If the institution of heir or the devise or legacy is subject
as if B has passed the bar, and B gets the estate. C to a suspensive term, the term shall suspend the
here is the person interested in the condition because effects of the institution or of the devise or legacy.
C, being the presumptive or legal heir, would have
received the estate had the condition not been fulfilled. In other words, the heir, devisee or legatee can
To punish C, and to prevent an injustice being demand for the delivery of the inheritance, devise or
committed upon B, B is entitled to the estate because legacy only upon the expiration of the term or period.
the condition in this case shall be deemed to have been Stated in another way, the right of the heir, devisee or
complied with. legatee is acquired at the time of the death of the
testator, but the demandability of the right itself is
suspended until the arrival of the date or time
Art. 884. Conditions imposed by the testator upon the designated by the testator upon the death of the
heirs shall be governed by the rules established for testator; however, he can demand for its delivery only
conditional obligations in all matters not provided for by upon the expiration of the designated term or period.
this Section.
Pending the arrival of the date or time designated by
Suppletory Force of Rules on Conditional the testator, the inheritance, devise or legacy shall be
Obligations given to the legal or intestate heirs of the said testator
The provisions on conditional obligations (Arts. 1179 in conformity with the rule stated in the first sentence of
1190 et seq.) govern matters not provided for by this the second paragraph of Art. 885.
section. In case of conflict, this section will prevail.
However, these legal heirs shall not enter into the
Art. 885. The designation of the day or time when the possession of the property without giving sufficient
effects of the institution of an heir shall commence or security, with the intervention of the instituted heir or of
cease shall be valid. the devisee or legatee
In both cases, the legal heir shall be considered as Transmissibility of Rights

called to the succession until the arrival of the period or If the instituted heir or the devisee or legatee
its expiration. should die before the expiration of the suspensive
term or period, his right to the inheritance, devise or
But in the first case he shall not enter into possession of legacy shall be transmitted to his own heirs.
the property until after having given sufficient security,
This principle is now enshrined in Art. 878. It must be
with the intervention of the instituted heir.
noted, however, that in order that this rule shall be
applicable, the heir, devisee or legatee should have
Testamentary Dispositions with a Term died after the death of the testator, but before the
Testamentary dispositions with a term or period expiration of the term or period.
are those demandability or extinguishment are subject
to the expiration of a term or period. This rule is of course in conformity with the principle
that if the institution of heir or the devise or legacy
Consequently, a term or period, as applied to is with a suspensive term, what is suspended by
testamentary dispositions, may be defined as an the term or period is not the acquisition of the right
interval of time, which, exerting an influence upon a to the inheritance, devise or legacy, but merely the
testamentary disposition as a consequence of a demandability of the right itself.
juridical act, either suspends its demandability or
produces its extinguishment. Rule if Term is Resolutory
If the institution of heir or the devise or legacy is subject
A term or period may be either suspensive (ex die) or to a resolutory term, the heir, devisee or legatee can
resolutory (in diem). demand immediately for the delivery of the inheritance,
devise or legacy.

However, after the expiration of the designated term or
period, his rights thereto are terminated. As a
consequence, the inheritance, devise or legacy shall
pass to the legal heirs of the testator.
EXAMPLE
A has a brother B (A’s only relative) but institutes C as
heir beginning 5 years from A’s death. During the five
year interval B is considered called to the succession
until the period expires. But B cannot enter into
possession of the property until after he has given
sufficient security. The security must be approved and
considered suitable by C, the instituted heir.
[NOTE: While B is entitled to inherit in the meantime,

this is only so if the testator had not designated any
other interim heir for this article may be considered
suppletory, there being no prohibition to institute such
interim heir]
NOTE:
(a) In the example given, B is to be considered merely
as the usufructuary, with the right to enjoy but not
alienate, unless the alienation be subject to the right of
C to eventually get the property. (6 Manresa 225).
If B does not offer security, it is as if he renounced the

inheritance and the property should really go to the
next legal heir, instead of being put under
administration, as apparently required by Art. 880.
(b) In case the legal heir concerned happens to be the
State, is it required to give security? A noted
commentator answers this in the negative.
(c) If the institution be in diem, and the first heir takes

possession in the meantime, does he have to give
security for the protection of the legal heirs who will get
the property later?
A: No, since this is not required by the law. (See 2nd
paragraph, Art. 885; see also 6 Manresa 225).].

Articles 886-914 WILLS & SUCCESSION
Legitime Atty. Taleon
SECTION 5 (2) System of TOTAL RESERVATION — here,
LEGITIME everything goes to the compulsory heirs, as long
(Articles 886 to 914) as there is at least one. Only when there is none
is there freedom to dispose.
Art. 886. Legitime is that part of the testator’s property
which he cannot dispose of because the law has (3) System of TOTAL FREEDOM OF DISPOSITION
reserved it for certain heirs who are, therefore, called —in this system, there is no legitime. Everything is
compulsory heirs. free
Concept of the Legitime

From this definition, it is clear that a part or portion of
the hereditary estate is to a certain extent withdrawn AS THE PROPERTY
AS A RIGHT
from the patrimony of the testator so that he can no ITSELF
longer dispose of it by any gratuitous title, although he right to succeed to a - actual property itself
can still enjoy it. certain portion of the - that part of the
inheritance testator’s property
Kinds of Legitime referred to in the law
(1) Fixed if the aliquot part of the testator’s estate to
which a certain class of compulsory heirs is
entitled by operation of law is always the same Changes in the System of Legitime
whether they survive alone or with other classes of The distribution under the old Civil Code of the estate
compulsory heirs in testamentary succession has been modified, thus:
(2) Variable if the aliquot part changes depending • The legitime of the surviving spouse has been
upon whether they survive alone or with other converted from usufruct into full ownership.
classes of compulsory heirs. • Illegitimate children other than acknowledged
→ Thus, the legitime of legitimate children or natural under the Civil Code have been given a
descendants and legitimate parents or regular legitime.
ascendants is always one-half of the • Children of void marriages are considered natural
testator’s estate, while that of the other children by legal fiction under the Civil Code and
classes of compulsory heirs depends upon receive the same legitime as acknowledged
whether they survive as a class or they concur natural children.
with other classes of compulsory heirs. • And other illegitimate children are each entitled to
a share equal to four-fifths of that of an
Purpose of the Legitime acknowledged natural child under the Civil Code.
• The system of legitime is a limitation upon the • The mejora or betterment has been abolished, but
freedom of the testator to dispose of his property the free portion has been increased to one-half, so
by will. that the testator may give a part or all of it to his
• Its purpose is to protect the children and the legitimate children or descendants, or to third
surviving widow or widower from the unjustified persons, subject to the rights of illegitimate
anger or thoughtlessness of the other spouse children and the surviving spouse.
• To protect compulsory heirs. It is always possible
that a man or a woman may forget his or her Effect of Donations
parental, filial or conjugal obligations. The law, by The law respects the legitime so much that even
reserving a part or portion of the testator’s estate donations inter vivos are to be reduced if found
for the benefit of compulsory heirs, is thus able to inofficious (that is, if they exceed the free portion) for
protect such heirs from his or her anger or neglect. no person may give by way of donation more than he
• The testator may alienate the estate for an may give by will.
ONEROUS/VALUABLE CONSIDERATION for in
such case, there is no diminution of his estate The donation is considered inofficious in all that it may
inasmuch as the property alienated is substituted exceed this limitation. (Art. 762).
with another which is considered its equivalent.
• If there are no compulsory heirs, it follows that An alienation, however, which is for an onerous or
there can be no legitime. valuable consideration (as a sale) would be proper
since in this case, there merely is the substitution of
• The testator cannot deprive his compulsory heirs
one kind of property for another.
of their legitime, except in cases expressly
specified by law.
Vested Right to the Legitime
• Neither can he impose upon the same any burden,
It is true that the right to enter into the possession of
encumbrance, condition, or substitution of any
any inheritance commences only from the moment of
whatsoever (Art. 904), except, of course, the
the death of the predecessor-in-interest.
condition that the property will not be divided for a
period not exceeding 20 years.
But it is undeniable that a necessary or forced heir
(compulsory heir), according to the system of legitimes,
Systems of Distribution of Hereditary Property
has by provision of law, from the time of his birth, a
(1) System of the LEGITIME (PARTIAL
vested right to eventually acquire the inheritance from
RESERVATION) — here, a part is for the legitime,
his ascendants, the right to be actually vested, from the
a part is for the free portion.
moment of death.

Such a vested right is inherent with his filiation to which The father or mother of illegitimate children of the three
belong the obligations and rights of the author of his classes mentioned, shall inherit from them in the
being (Rocha v. Tuason and Rocha de Despujol, 39 manner and to the extent established by this Code.
Phil. 973).
Under Art. 185 of the Family Code
No Right of Compulsory Heirs To Insist That the Under the Family Code, there are no more spurious
Legitimes Be Given in the Form of Property children. Both the natural and the spurious children are
While compulsory heirs have a right to the legitime, simply called ILLEGITIMATE CHILDREN having
they cannot insist that they be paid in the form of exactly the same rights.
property, whether real or personal, when they are
NOT AVAILABLE, as when the will itself contains a Each of them gets half the share of each legitimate
partition of the estate, specifically assigning the child, and will be taken from the free portion after the
property to various heirs. In a case like this, the share of the surviving spouse has been satisfied.
legitimes may be satisfied by paying CASH (Marina
Dizon- Rivera v. Estela Dizon, et al., L-24561, June 30, Kinds of Heirs
1970). (1) Compulsory Heirs
= those heirs for whom the law has reserved
Succession to Legitime v. Intestate Succession that part of the testator’s estate known as the
SUCCESSION TO INTESTATE legitime and succeed whether the testator
LEGITIME SUCCESSION likes it or not, unless there is lawful cause for
Takes place Takes place in the disinheritance.
independent of and absence of a will or → As such, testator cannot disregard them.
even contrary to the when there are vacant These heirs are enumerated in Art. 887 of the
wishes of the testator portions left undisposed Code.
expressed in a will. of by will.
(2) Voluntary, Testamentary, or Testate Heirs
It is forced upon the It is conferred by law, the = They are those called to the succession by
testator, even when he presumed will of the virtue of the expressed will of the testator
has already disposed of deceased being its
his property. basis. (3) Legal or Intestate Heirs
the law disregards the the law puts itself in the = Those called to the succession by operation
intention of the testator place of the deceased of law in the absence of voluntary heirs
when it encroaches who has not disposed of designated by the testator
upon the legitime of a his property by will and
compulsory heir follows what it presumes “Compulsory”
he would have done if he Compulsory heirs are never compelled to accept the
made a will legitime — they may accept or reject — for no one can
Both are successions by operation of law compel another to receive a gift or an economic
advantage.
‘Right of Completion of Legitime’
If some heirs are genuinely interested in securing that They are called compulsory, only because the testator
part of their late father’s property which has been cannot disregard them.
reserved for them in their capacity as compulsory heirs,
then they should simply exercise their actio ad If the testator is a legitimate person, his compulsory
supplendam legitiman, or their “right of completion of heirs under Art. 887 of the Civil Code are the
legitime.’’ (Gala v. Ellice Agro-Industrial Corp., 418 following:
SCRA 431 [2003]).
(1) Legitimate children and descendants;
(2) In default of the foregoing, legitimate parents and
Art. 887. The following are compulsory heirs: ascendants;
(1) Legitimate children and descendants, with respect to (3) The widow or widower;
their legitimate parents and ascendants; (4) Acknowledged natural children and natural
(2) In default of the foregoing, legitimate parents and children by legal fiction; and
ascendants, with respect to their legitimate children (5) Acknowledged illegitimate children who are not
and descendants; natural.
(3) The widow or widower;
(4) Acknowledged natural children, and natural On the other hand, if the testator is an illegitimate
children by legal fiction; person, his compulsory heirs are the following:
(5) Other illegitimate children referred to in Article 287. (1) Legitimate children and descendants;
(2) Acknowledged natural children and natural
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not children by legal fiction;
excluded by those in Nos. 1 and 2; neither do they (3) Acknowledged illegitimate children who are not
exclude one another. natural;
(4) In default of all the foregoing, parents by nature;
In all cases of illegitimate children, their filiation must and
be duly proved. (5) The widow or widower.

Classes of Compulsory Heirs the effects of the decree is to disqualify the former from
(1) Primary compulsory heirs inheriting from the latter.
= those who are always entitled to their legitime
as provided by law regardless of the class of The surviving spouse cannot claim to be a compulsory
compulsory heirs with which they may concur heir of her or his parent-in-law under Art. 887(3).
→ The primary compulsory heirs get their
legitime even in the presence of the other Illegitimate Children
primary compulsory heirs and even in the Under the New Civil Code there are three kinds of
presence of the secondary compulsory heirs. illegitimate children who are classified as primary
✓ Legitimate children compulsory heirs. They are:
✓ Legitimated children (1) acknowledged natural children
✓ Adopted children  A natural child who has not been acknowledged is
✓ Legitimate descendants not a compulsory heir. In other words, in relation
to his presumed parent, he has no successional
(2) Secondary compulsory heirs right whatsoever.
= those who may be excluded by other → It is, however, possible that even when the
compulsory heirs. testator is already dead, a natural child not
= Those who are entitled to legitime only in the acknowledged may still participate in the
absence of the primary compulsory heirs inheritance by maintaining a complex action
✓ Legitimate parents to compel recognition and at the same time to
✓ Legitimated ascendants obtain relief in the character of heir. But such
✓ Parents of Illegitimate children an action would be possible only in those
exceptional cases provided by law.
(3) Concurring compulsory heirs
= Those who succeed together with the primary (2) natural children by legal fiction
and/or secondary compulsory heirs • includes all of those children born or conceived of
✓ Surviving spouse void marriage as well as those conceived of
✓ Illegitimate children voidable marriages after the decree of annulment.
By express provision of law, such children shall
Legitimate children or descendants have the same status, rights and obligations as
This class includes: acknowledged natural children
(1) legitimate children or descendants proper; • Since their status is conferred upon them by
(2) legitimated children or descendants; and operation of law, recognition by the testator is not
(3) adopted children. necessary.
Adopted Children (3) acknowledged illegitimate children who are

General Rule: adopted children are entitled to the not natural.
same successional rights as legitimate children. • all illegitimate children other than natural children
in accordance with Art. 269 and other than natural
Exceptions: children
(1) if the adopter is survived by his legitimate parents
or ascendants and by his adopted child, the latter Parents or Ascendants
shall not have more successional rights than an Legitimate parents or ascendants are classified as
acknowledged natural child. secondary compulsory heirs because of the fact that
(2) if the adopter dies before his legitimate parent or under our law, THEY CANNOT INHERIT FROM
ascendant, or is incapacitated to inherit from such THEIR CHILD OR DESCENDANT IF THEY CONCUR
parent or ascendant, or is disinherited by such WITH LEGITIMATE CHILDREN OR DESCENDANTS
parent or ascendant, unlike a legitimate child, the OF THE LATTER.
adopted child cannot inherit by right of
representation from the parent or ascendant It must be noted, however, that while they can be
→ Adoption merely creates a relationship similar excluded by the presence of legitimate children or
to that of legitimate paternity and filiation descendants, they cannot be excluded by the presence
between adopter and adopted child. of adopted children.
→ It does not create any relationship between
Illegitimate parents are also classified as secondary,
the adopted child and the legitimate relatives
compulsory heirs because of the fact that under our
of the adopter.
law, they cannot inherit from their illegitimate child if
they concur with children or descendants of the latter,
Widow or widower
whether legitimate or illegitimate.
Under the old law, the widow or widower was entitled
merely to a usufructuary right; under the present law,
she or he is now ENTITLED TO ALL OF THE RIGHTS Q: If the testator happens to be an adopted person,
OF A PRIMARY COMPULSORY HEIR. may the adopter also be classified as a secondary
compulsory heir?
However, if there is a decree of legal separation, the
guilty spouse can no longer be considered as a A: So long as the adopted person is survived by his
compulsory heir of the innocent spouse, since one of parents by nature, whether legitimate or illegitimate,

the adopter cannot be classified as a secondary which the latter may have acquired by gratuitous
compulsory heir. There is, however, an instance where title | from another ascendant, or a brother or
he may be classified as such. According to the last sister, | is obliged to reserve such property as he
paragraph of No. 4 of Art. 39 of the Child and Youth may have acquired by operation of law | for the
Welfare Code (P.D. No. 603): “The adopter shall not be benefit of relatives who are within the third degree
a legal heir of the adopted person, whose parents by | and who belong to the line from which said
nature shall inherit from him, except that if the latter are
property came.
both dead, the adopting parent or parents take the
→ By its very nature, this reserva constitutes an
place of the natural parents in the line of succession.”
exception to the system of legitime as well as to
the order of intestate succession as recognized
Under Art. 190 of the Family Code, when parents
and regulated in our Code. Hence, commentators
(legitimate or illegitimate), or the legitimate ascendants
have aptly described it as a reserva extraordinaria.
of the adopted concur with the adopters, they shall
divide the entire estate, that is, onehalf to be inherited
Purpose
by the parents or ascendants and the other half by the
From the very name of the reserva itself, it is apparent
adopters.
that the purpose of reserva troncal or lineal is to
prevent persons who are strangers to the family from
If the alleged father signed on the certificate of live birth acquiring, by some chance or accident, property which
of the child as its father, this is very good evidence of otherwise would have remained with the said family.
acknowledgment or recognition (Sanchez v. Fabillaran,
Adm. Matter No. P-1175, Oct. 30, 1979). This explains why the law requires that the ascendant
who is obliged to make the reservation should reserve
Q: A person claiming to be an illegitimate child wanted the property for the benefit of relatives who are within
to intervene in the probate proceedings. She alleged the third degree and who belong to the line from which
that she enjoyed the status of a child of the deceased the said property came.
and that she had evidence indicating that the decedent
was her father. Should she be allowed to intervene and Requisites (GLOT)
thus inherit? In order that there will be a reservation of the property
in accordance with the provision of Art. 891, the
A: Generally, she should not be allowed. Mere proof of following requisites must concur:
filiation is not enough. What is important is recognition (1) The property1 was acquired or inherited by a
of that filiation. descendant by Gratuitous title2 from an ascendant
or by an individual from a brother or sister3 ;
[NOTE: If the claimant was a minor at the time of the (2) The descendant-propositus died without any
father’s death, she can ask that she be recognized if Legitimate issue in the direct descending line who
she has a ground to compel recognition. This move for
could inherit from him.
compulsory recognition must be done within four years (3) The property was inherited by another ascendant
after attaining majority. (See Art. 286, Civil Code).]. of the descendant or by an ascendant of the
individual, belonging to another line, by Operation
Brothers and Sisters of law4; and
ARE NOT compulsory heirs; (4) There are relatives of the descendant-propositus
neither are strangers
who are within the Third degree and who belong
but there is nothing wrong in giving them a share of the
to the line from which the property came.
inheritance, if the testator so wants provided that the
legitimes of the compulsory heirs are not impaired. In
Nature
such case, the brothers, or the sisters, or even the
The ascendant-reservista acquires the ownership of
strangers, would be termed voluntary heirs or devisees
the property subject to the resolutory condition that
or legatees as the case may be.
there must exist relatives of the descendant-propositus
who are within the third degree and who belong to the
Art. 891. The ascendant who inherits from his line from which the said property came.
descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or If the condition is fulfilled, that is, if such relatives exist
a brother or sister, is obliged to reserve such property after his death, the property passes, in accordance with
as he may have acquired by operation of law for the this special order of succession, to such relatives.
benefit of relatives who are within the third degree and
who belong to the line from which said property came. But if the condition is not fulfilled, the property is
released and will be adjudicated in accordance with the
Reserva Troncal; Concept regular order of succession.
Reserva troncal or lineal
= the reservation by virtue of which an ascendant On the other hand, during the whole period between
who inherits from his descendant | any property the constitution of the reserva and the extinction
1
Reservable property
2
By donation or succession, testate or intestate
3
Source of origin; half b/s
4 By intestate succession or by way of legitime in testamentary succession

thereof, the reservatarios or relatives of the ✓ The law applies only when the FILIATION is
descendantpropositus within the third degree have LEGITIMATE
only an expectation to the property, an expectation ✓ The reservee must be a legitimate relative by
which cannot be transmitted to their own heirs, unless consanguinity of both the source of the
these heirs are also within the third degree. property and the propositus, and w/in the 3 rd
degree w/ respect to the latter
However, upon the fulfillment of the condition to which
the reserva is subject this expectation is converted Transmissions Involved
automatically and by operation of law into an absolute
right of ownership so that the property ceases
1st:
altogether to be a part of the estate of the ascendant- Gratuitous
reservista. Consequently, it cannot be held liable for Title
the payment of debts of the ascendant which are
chargeable against his estate. 2nd:
Operation of
Law
Example of Reserva Troncal
3rd:
Reservor
to
Reservee
Reservatarios
The fourth person or persons involved in the reserva
are the reservatarios or relatives of the descendant
Explanation: propositus for whose benefit the reservation is
M and F are the parents of C. M died leaving a will, one established.
provision of which gave a parcel of land to C. One week
later, C died without any descendant, and without any However, in order that such relatives may be benefited
will. The father F then inherited the land. This land is by the reservation, it is indispensable that the following
however subject to what is known as the reserve conditions must concur:
truncal (or the reserva lineal). This means that F owns (1) Such relatives must be legitimate relatives of
it only till he dies, and at his death, it should NOT go to the descendant-propositus within the third
anybody whom he desires, but is reserved by the law degree
in favor of the relatives of M; in other words, in favor of • the degree of relationship must be counted
the line from which the property came. These relatives from the descendant-propositus, because it is
must be within the 3rd degree, to be counted from C. only upon his death that the property
becomes reservable.
Q: If in the problem given, the property is claimed by a • 1ST DEGREE: legitimate father/mother of the
brother of F and by a brother of M, who should get the descendant-propositus
property? • 2nd DEGREE: grandparents / brothers &
sisters
ANS.: The brother of M gets the property as a result of • 3RD DEGREE: greatgrandparents, uncles or
reserva troncal. aunts (brothers and sisters of the full or half
blood of the propositus’ father or mother), and
Personal Element nephews or nieces (children of the propositus’
brothers or sisters of the full or half blood)
belonging to the line from which the
reservable property came
ORIGIN (2) they must belong to the line from which the
DESCENDANT-
the ascendant or
PROPOSITUS reservable property came; and
brother/sister or half
the descendant or
brother/sister from
brother/sister or half = refers to the paternal line as opposed to the
whom the property
was received by the
brother/sister who maternal line, or vice versa and not to that
acquired said
descendant by
property which is constituted by a series of degrees
gratuitous title
which may be either direct or collateral
(3) they must survive the ascendant-reservista.

ASCENDANT-RESERVISTA RESERVEES/RESERVAT • title of the ascendant-reservista is by its very
the ascendant belonging to ORIOS/BENEFICIARIES
the line other than that from
nature subject to the resolutory condition that
the relatives belonging to
which the property came who the line from w/c the if upon his or her death there are relatives of
inherited by operation of law property came w/in the 3rd the descendant-propositus who are within the
the property from his degree of the propositus,
descendant (the propositus) and for whom the property third degree and who belong to the line from,
and is obliged to reserve for shold be reserved by the which the property came, then such property
specified relatives reservor
shall pass by operation of law to such
relatives.

• In order that the purpose for which the Obligations of Reservista
reservation is established may be attained, it The obligations of the ascendant- reservista are:
is, therefore, indispensable that the (1) To make an inventory of all reservable property;
ascendant-reservista must be survived by (2) To appraise the value of all reservable movable
such relatives of the descendant-propositus. property;
(3) To annotate in the Registry of Property the
Property Subject to Reservation reservable character of all reservable immovable
The property which is subject to the reservation property; and
established in Art. 891 must be the SAME PROPERTY (4) To secure by mortgage
which the ascendant-reservista had acquired by a. the restitution of movable property not
operation of law from the descendant-propositus upon alienated
the death of the latter and which the latter, in turn, had b. the payment of damages caused or which
acquired by gratuitous title during his lifetime from may be caused by his fault or negligence
another ascendant or from a brother or sister. c. the return of the price which he has received
for movable property alienated, or the
Consequently, the ascendant-reservista cannot payment of its value at the time of its
substitute another property for that which he is obliged alienation, if such alienation was made by
by law to reserve. This consequence is deducible not gratuitous title
only from the object and purpose of the reserva, but d. the payment of the value of immovable
also from the obligations imposed upon the reservista, property validly alienated.
such as the obligation to make an inventory of all
reservable property and the obligation to annotate in Rights of Reservee/Beneficiary
the Registry of Property the reservable character of all Before the death of Reservor
reservable immovable property (1) to compel the annotation of the reservable
character of real property if the reservor had failed
When substitution may take place: to register the same w/in the 90-day period;
(1) when the property is consumable (2) to demand the giving of security by the reservor to
(2) when it is lost or destroyed through the fault of the guarantee the return of the property or the
reservista payment of its value and the indemnity for
(3) when it has deteriorated through the same cause damages; and
(4) when it has been alienated (3) to alienate his rights as reserve by an act inter
vivos or mortis causa.
In such cases, the remedy of the reservatarios or
persons entitled to the reservable property would be to After the death of Reservor
recover the value of the property or to seek the
(1) to take the reservable property, if he is the reserve
ownership and return thereof depending upon the
nearest in degree of relationship to the propositus;
circumstances of each particular case.
(2) to recover the property from the transferee
chargeable with knowledge of its reservable
Q: If the reservable property consists of a sum of character;
money and there is no ready cash in the estate of the (3) to hold the reservor’s estate liable for loss or
reservista when he dies, what is the remedy available deterioration of the property or any damage to it
to the reservatarios? due to the fault of the reservor;
A: the ordinary rules for the collection of a judgment (4) to foreclose the mortgage or go after any bond or
credit in accordance with our laws of procedure shall security, if any, that has been given by the
have to be applied. Consequently, the reservatarios reservor; and
entitled to the sum of money can ask for the sale of (5) in the case of nephews and nieces of the
property belonging to the estate of the reservista in propositus, to have the right of representation
order to raise the necessary amount
When reservatario acquires right; effect
Rights of Reservista Assuming that the reservatario has all of the necessary
All of the attributes of the right of ownership, such as qualifications, his hope or expectancy over the
enjoyment, disposal and recovery, belong to him reservable property is finally converted into a perfected
exclusively, although conditional and revocable. right upon the concurrence of two requisites — DEATH
OF THE RESERVISTA and SURVIVAL.
He can, therefore, alienate or encumber the property if
he so desires, but he will only alienate or encumber Upon the death of the reservista, the reservatario
what he had and nothing more because no one can nearest the descendant-propositus becomes,
give what does not belong to him. automatically and by operation of law, the absolute
→ As a consequence, the acquirer will only receive a owner of the reservable property.
limited and revocable title.
→ Therefore, after the death of the ascendant, the Consequently, the property is withdrawn automatically
reservatarios may then rescind the alienation or from the estate of the reservista. Hence, even the
encumbrance, because the condition to which it is creditors of such reservista cannot touch it.
subject has already been fulfilled.
Furthermore, if in the decree of registration there is an
express recognition of the rights of the reservatario, the

acquisition of the property by such reservatario upon (II) He cannot impose upon the same any burden,
the death of the reservista may be entered immediately encumbrance, condition, or substitution of any
in the property records without the necessity of opening kind whatsoever.
any state proceedings. • The only exception is when he expressly
prohibits the partition of the hereditary estate
Extinction of Reserva for a period which shall not exceed twenty
The following are the different causes for the years.
extinguishment of the reserva: • This power of the testator to prohibit division
(1) Death of the ascendant-reservista. applies even to the legitime of compulsory
→ as the reserve then becomes a right of full heirs.
ownership on the part of the reservees • Of course, there are other instances when a
(2) Death of all would-be reserves w/in the 3rd degree charge or burden is imposed upon the legitime
ahead of the reservor of compulsory heirs, such as in the case of
→ In such case, the active subject of the reserva reserva truncal or when the estate consists of
disappears, as a consequence of which the a family home, but in these cases, the charge
resolutory condition which limits the title of the is imposed by the law and not by the testator.
reservista also disappears.
(3) Loss of the reservable property by fortuitous event Effect of Impairment
or for causes not due to the fault or negligence of If the testator deprives a compulsory heir of his legitime
the reservista. in violation of the principle declared in Art. 904, the
(4) Waiver or renunciation by the reservatarios. effect of such deprivation must be distinguished or
→ The renunciation may be before or after the qualified.
death of the reservista.
→ If the renunciation is made before the death of There are four possible ways by which the testator may
the reservista, such renunciation cannot attempt to deprive a compulsory heir of his legitime.
affect other third degree relatives who may be They are as follows:
born subsequently and who survive the
reservista; (1) By valid disinheritance
→ if it is made after the death of the reservista, → in such a case, the disinheritance shall take
the reservation is extinguished but only effect, provided that the requisite formalities
insofar as the share of the renouncer is prescribed by law are complied with.
concerned. → As heretofore stated, this is the only
→ In either case, the renunciation may be either exceptional case under our Code where the
express or implied. testator may, by his own act, deprive a
→ The renunciation affects only the share of the compulsory heir of the legitime to which he is
renouncer. entitled by law.
(5) Prescription of the right of the reservatarios, when (2) By imperfect disinheritance.
the ascendant-reservista holds the property → By imperfect disinheritance, we refer to the
adversely against them in the concept of an expressed attempt of the testator to deprive a
absolute owner. compulsory heir of his legitime without the
→ The possibility of the reservatarios losing their requisite formalities prescribed by law.
right in the reservable property by → The effect of such attempt would be the
extraordinary prescription has been explicitly partial annulment of the institution of heirs
recognized by the Supreme Court to the extent that the legitime of the heir
→ Reservor: 30 yrs immovable; 8 yrs movable disinherited is prejudiced, but legacies and
→ Stranger: 10 yrs immovable; 8 yrs movable devises which are not inofficious shall be
(6) Registration by the reservista of the property as respected.
free property under the Land Registration Act (3) By preterition of a compulsory heir in the direct
line.
Art. 904. The testator cannot deprive his compulsory → In this case, the attempt of the testator to
heirs of their legitime, except in cases expressly deprive the compulsory heir of his legitime is
specified by law. implied.
→ The effect of such attempt would be the
annulment of the institution of heirs, but
Neither can he impose upon the same any burden,
legacies and devises which are not inofficious
encumbrance, condition, or substitution of any kind
shall be respected.
whatsoever.
(4) By leaving to the compulsory heir by any title any
property or amount which is not sufficient to satisfy
Preservation of Legitime the legitime to which such heir is entitled by law.
There are two aspects of the principle. → In such a case, the heir can ask for the
(I) The testator cannot deprive his compulsory completion of his legitime.
heirs of their legitime.
• The only exception is when the testator
disinherits a compulsory heir for a cause
expressly stated by law.

Art. 905. Every renunciation or compromise as regards entitled by operation of
a future legitime between the person owing it and his law
compulsory heir is void, and the latter may claim the the effect is the TOTAL the only effect is to give
same upon the death of the former; but they must bring ANNULMENT of the a remedy or a right of
to collation whatever they may have received by virtue institution of heirs action to the compulsory
of the renunciation or compromise. heir who is prejudiced to
DEMAND FOR THE
COMPLETION OF HIS
Effect of Renunciation or Compromise of a Future
LEGITIME.
Legitime
Such RENUNCIATION/COMPROMISE is prohibited
However, it must be
and declared NULL& VOID.
noted that under the
latter case, if the heir
The reasons for this precept are evident.
cannot lose his legitime,
In the first place, the rights of the heirs with respect to
neither can he demand
their legitime are merely inchoate or prospective,
more than what it
because such rights are perfected only at the moment
amounts to. At most, he
of the death of the testator.
can only ask for the
→ Hence, before the death of the latter, there
balance of what he is
can be nothing to renounce or compromise.
legally entitled to
In the second place, no contract may be entered into
with respect to future inheritance except in the cases Q: If A is entitled to a legitime of P1 Million and in the
expressly authorized by law (Art. 1347). will he had been given merely P800,000, he may
demand that he be given the balance of P200,000. In
the example given above, is A entitled to ask for the
Q: Who can claim the nullity of the renunciation or
annulment of the institution of heirs as in the case of
compromise?
preterition?
A: It is clear that such nullity may be claimed either by
A.: No. In preterition, the preterited heir gets nothing
the compulsory heir who made it or by any other
from the inheritance. Hence, he is entitled to ask for the
compulsory heir who is prejudiced by such
annulment of the institution of heir. (Art. 854). But in the
renunciation or compromise.
problem given, there will not be any annulment of the
institution of heirs because after all, A has not been
It must be observed, however, that if the nullity is
forgotten. A will just be entitled to the completion of his
claimed after the death of the testator, it is required that
the heir who is filing the claim must bring to collation legitime. (Art. 906).
whatever he might have received by virtue of the
renunciation or compromise. This requirement is Art. 907. Testamentary dispositions that impair or
logical because it would be unjust if such heir is allowed diminish the legitime of the compulsory heirs shall be
to claim his legitime and still retain what he had reduced on petition of the same, insofar as they may be
received. inofficious or excessive.
Art. 906. Any compulsory heir to whom the testator has Reduction of Inofficious Testamentary
left by any title less than the legitime belonging to him Dispositions
may demand that the same be fully satisfied. Reason for the law: The legitimes of the forced heirs
should not be impaired.
Satisfaction of Completion of Legitime
A compulsory heir cannot be deprived of his FULL Note that this Article:
LEGITIME reserved for him by law. • applies only to testamentary dispositions (and
therefore not to donations). (Arts. 771 and 772
If the compulsory heir receives in the WILL less than deal with the reduction of inofficious donations).
his legitime, he is entitled to the BALANCE to complete • These dispositions may be devises or legacies w/c
such legitime. cannot be covered by the free portion
• can be availed of only by the compulsory heirs or
Preterition v. Completion of Legitime their successors in interests
COMPLETION OF  donees, devisees, legatees and creditors cannot
PRETERITION ask for the reduction of inofficious donations
LEGITIME
there is a TOTAL the testator has not
OMISSION of the entirely forgotten the NOTE: The excess must of course be given to the
compulsory heir in the heir, but making a compulsory heirs.
institution, and WRONG ESTIMATE of
consequently, a total the portion which he The reduction can only take place AFTER THE DEATH
deprivation of his could freely dispose of, OF THE TESTATOR for it is only upon that moment
legitime he has left to such heir that the right of the compulsory heirs becomes certain
something less than the and definite.
portion to which he is

Art. 908. To determine the legitime, the value of the But there are two children, hence, each gets P300,000
property left at the death of the testator shall be as his legitime.
considered, deducting all debts and charges, which
shall not include those imposed in the will. [NOTE: The legitime of B is only P300,000. But since
he has been given P500,000 as a donation inter vivos,
To the net value of the hereditary estate, shall be added this should first be charged to the legitime. But there is
an excess of P200,000. This should be taken from the
the value of all donations by the testator that are subject
free portion which is P600,000. This leaves a net free
to collation, at the time he made them.
portion of only P400,000, which can be given to
anybody. Hence, out of the actual net assets of
Art. 909. Donations given to children shall be charged to P700,000 (because the debts have been deducted) —
their legitime. C gets P300,000 (as legitime) B gets 0 (as legitime,
since he has already Free Portion = P400,000 received
Donations made to strangers shall be charged to that it in the form of donation) P700,000.].
part of the estate of which the testator could have
disposed by his last will. The Charges Referred To
Deductible debts and charges refer to
Insofar as they may be inofficious or may exceed the ✓ PRE-EXISTING OBLIGATIONS OF THE
disposable portion, they shall be reduced according to TESTATOR WHICH HE HAD INCURRED
the rules established by this Code. DURING HIS LIFETIME
 and not to the charges or burdens which are
Steps in Distribution of Estate If There are created by testamentary dispositions found in the
Donations. will.
There are five distinct steps in the determination of the According to the law, charges or burdens arising from
legitime of compulsory heirs. They are: or based upon TESTAMENTARY DISPOSITIONS are
(1) Determination of the gross value of the estate at chargeable or imputable against the portion at the
the time of the death of the testator. testator’s free disposal. Since it would be impossible
(2) Determination of all debts and charges which are to determine such disposable portion without first
chargeable against the estate. determining the legitime of compulsory heirs, it is clear
(3) Determination of the net value of the estate by that such charges or burdens cannot be placed in the
deducting all of the debts and charges from the same category as pre-existing obligations of the
gross value of the estate. testator.
(4) Collation or addition of the value of all donations
inter vivos to the net value of the estate. Note that the charges referred to in Art. 908 which
(5) Determination of the amount of the legitime from should be deducted are not the charges imposed in the
the total. will (like legacies) but the charges which, even without
the will, would be demandable.
In order to distribute the hereditary estate in
accordance with the will of the testator, two more steps In the example above, if A directed the heirs to pay the
are added to the above steps. They are: P300,000 debts, this amount should be deducted
(6) Imputation of the value of all donations inter vivos although apparently imposed in the will, because even
made to compulsory heirs against their legitime without said order, said amount should be paid just the
and of the value of all donations inter vivos made same.
to strangers against the disposable free portion
and restoration to the hereditary estate if the According to the Rules of Court, no distribution of the
donation is inofficious. estate shall be allowed until all debts and obligations
(7) Distribution of the residue of the estate in have first been paid. (Rule 90, Sec. 1). If, upon the
accordance with the will of the testator other hand, in his will, the testator ordered his heir to
give P300,000 to a friend, and such amount was not a
Formula for the Computation of the Net Hereditary debt of the testator, this would really be an example of
Estate a charge on the heirs and should therefore NOT be
deducted for purposes of computing the net value of
the hereditary estate, otherwise, by this means, a
testator can deprive the compulsory heirs of their
VALUE OF NET
PROPERTY
LEFT
DEBTS & COLLATIONABLE HEREDITARY legitime or otherwise burden them.
CHARGES DONATIONS ESTATE
For example:
A, having an estate worth P1 million, instituted B, his
legitimate child as his heir, but ordered him to give
Q: A died leaving an estate worth P1 million and debts
P900,000 to C, a friend. If the P900,000 is deducted,
amounting to P300,000. During his lifetime, A had
the net estate would be P10,000 and B’s legitime would
given donation of P500,000 to B, his legitimate son.
only be P50,000. But such is not the intention of the
When A died, two legitimate sons, B and C, survived
law. Here, the net estate would still be P1 million; the
him. How much is the legitime of each legitimate child?
legitime would be P500,000 and, therefore, the legacy,
charge, or disposition in C’s favor should be reduced
A: P1 million – P300,000 + P500,000 = P1.2 million (net
so as not to impair the legitime. In other words, B would
hereditary estate). The legitime is therefore P600,000.

be bound to give C only P500,000 since this would be charging or imputing such value against the
the free portion. legitime of the compulsory heir to whom the thing
was donated.
Value to be Collated → This is the sense in which it is used in Art.
Note also that the value of the collationable donations 1061 of the Code.
should not be the value at the time of the collection, but → The immediate purpose is to take the
the VALUE AT THE TIME THE DONATIONS WERE donations “in the account of the partition” in
MADE. order to equalize the shares of the
REASON: This is Because when a donation is made, compulsory heirs as much as possible.
ownership (a real right) is transferred over the same
once the donation is accepted. The increase in value = it refers to the actual act of restoring to the
should therefore be given to the donee. In the same hereditary estate that part of the donation which is
way, in case of loss, whether by a force majeure or inofficious in order not to impair the legitime of
through negligence or through wanton destruction, the compulsory heirs.
donee must suffer in accordance with the rule of “res → The immediate purpose is to protect the
perit domino.” legitime of compulsory heir
How Value of Estate is Determined Donations to be Collated

If there are JUDICIAL PROCEEDINGS where the Whether the donation was made to a compulsory heir
estate is settled, the administrator must determine the or to a stranger, the value thereof at the time when it
value of the estate. For this purpose, he will be helped was made shall be added to the net value of the
by a tax-appraiser. hereditary estate for the purpose of determining the
→ The market value should be the basis. legitime of compulsory heirs and the portion at the
testator’s free disposal.
If there are NO JUDICIAL PROCEEDINGS for the That donations inter vivos made to compulsory heirs
settlement of the estate, the heirs must also determine shall be collated is evident from the provision of Art.
the value of the estate, subject to the provisions of the 1061 of the Code.
Internal Revenue Code.
→ Here also, it is the market value that must be In case of donations inter vivos to strangers, the basis
considered. It is however presumed that the of the rule is found in the prohibition of inofficious
assessed value is the true market value. This donations, or those which impair the legitime of
presumption may naturally be rebutted. compulsory heirs (Arts. 752, 771,
Civil Code).
Collation of Donations
Upon the determination of the net value of the estate Imputation
by the settlement or liquidation of all deductible debts After the value of all donations inter vivos have already
and charges, the next step in the determination of the been added to the net value of the hereditary estate,
legitime of compulsory heirs is the collation or the next step is the determination of the legitime of
addition of the value of all donations which the compulsory heirs in accordance with the rules
testator had made during his lifetime to the net prescribed in Arts. 888 to 903 of the Code using as
value of the estate. basis the total amount obtained.
The value to be collated or added is the VALUE OF DONATIONS GIVEN TO COMPULSORY HEIRS will
THE THING DONATED AT THE TIME WHEN THE then be imputed against their legitime
DONATION WAS MADE.
while THOSE GIVEN TO STRANGERS will be imputed
Consequently, any loss, deterioration, or improvement against the disposable portion.
of the thing donated from the time when the donation
was made up to the time of the settlement of the If such donations are inofficious in the sense that they
donor’s estate shall be for the account or for the benefit cannot be contained in the disposable portion, they
of the donee must be reduced in accordance with the rules
prescribed in Arts. 911 and 912 of the Civil Code.
Meaning of Collation
Collation, as it is used in the Civil Code, has three It must be noted that the act of imputation is merely a
different but interrelated acceptations. mathematical process of determining whether the
= it is understood as a fictitious mathematical value of the donation can be contained in the
process of adding the value of the thing donated legitime or disposable portion, as the case may be,
to the net value of the hereditary estate. or not.
→ This is the sense in which it is used in Art. 908
of the Code. In other words, the purpose is to determine whether it
→ The immediate purpose is to compute the is inofficious or not.
legitime of compulsory heirs. ✓ If it is not inofficious, it will be respected; the donee
shall not be required to make any restoration to the
= it includes not only the process of adding the value hereditary estate.
of the thing donated to the net value of the  If it is inofficious, it will be reduced with respect to
hereditary estate but also the subsequent act of the excess; the donee shall be required to make

an actual restoration to the hereditary estate in preference to others, it shall not suffer any reduction
order not to impair the legitime of compulsory until the latter have been applied in full to the payment
heirs. of the legitime.
(3) If the devise or legacy consists of a usufruct or life
It must also be noted that in the case of a donation to annuity, whose value may be considered greater than
a compulsory heir, just because the value of the thing that of the disposable portion, the compulsory heirs
donated cannot be contained in his legitime does not may choose between complying with the testamentary
necessarily mean that the donation is inofficious. The provision and delivering to the devisee or legatee the
only effect in such case, would be to place the donation part of the inheritance of which the testator could freely
in the same category as a donation to a stranger with
dispose.
respect to the excess.
→ Hence such excess will be imputed against
Order of Preference in the Hereditary Estate
the disposable portion. If it can be contained
After the net hereditary estate has been ascertained,
in such disposable portion, it is not inofficious;
what should be the order of payment?
consequently, it will not be reduced. These
(1) First, give the legitimes.
rules, however, must be qualified by the
(2) Then the donations inter vivos.
provision of Art. 1062 of the Code, which
(3) Then the preferred legacies and devises.
declares that “collation shall not take place
(4) Then all other devises and legacies pro rata (in
among compulsory heirs if the donor should
case the estate is not sufficient).
have so expressly provided.”
→ This provision merely means that if the donor
Inverse Order of Payment in case of Reduction
has expressly provided either in the deed of
(1) The devises and legacies not declared preferred
donation or in his will that the donation given
by the testator shall first be reduced (or annulled)
to a compulsory heir shall not be collated, the
pro rata w/o any distinction
value of such donation shall be imputable
(2) Then, the devises and legacies declared preffered
against the disposable portion and not against
(3) Next, the donations inter vivos, if the remainder
the legitime of such heir.
still exceeds the free portion
a. The more recent donations shall first be
Donations to a Compulsory Heir Not Imputable to
reduced or suppressed
the Legitime
b. If the donations were made w/ the same
(1) Where the donor-testator has expressly provided
date, they shall be reduced pro rata
that there shall be no collation unless the donation
impairs the legitime
→ the purpose of the rules is to preserve unimpaired
(2) Where the donee repudiates the inheritance
the legitime
(3) Where the donee who has no children or
descendant predeceases the testator, or is
Reasons Why Donations Inter Vivos are Preferred
disinherited
Over Dispositions Mortis Causa
Art. 910. Donations which an illegitimate child may have First, because they were made first, showing
received during the lifetime of his father or mother, preference in the generosity of the decedent. As has
shall be charged to his legitime. been aptly said, “priority in time is priority in right,” or
“first come, first served.”
Should they exceed the portion that can be freely
disposed of, they shall be reduced in the manner Second, because a donation is a bilateral act, there
prescribed by this Code. should be acceptance on the part of the donee, while a
disposition mortis causa, as by a devise or a legacy, is
Donations to Illegitimate Children — also Charged in a sense, unilateral. Of course, these dispositions
Against the Legitime may later on either be accepted or repudiated.
• The donations to said illegitimate children are
collationable. Third, because donations are generally irrevocable.
• The donations given to illegitimate children should
never impair the legitime of the legitimate children. DONATIONS INTER DONATIONS MORTIS
• Any donation in excess of the legitime shall be VIVOS CAUSA
charged to the free disposal and shall be The act is immediately Nothing is conveyed to
considered in the same category as donations to operative even if the or acquired by the donee
strangers actual execution may be until the death of the
deferred until the death donor-testator
Art. 911. After the legitime has been determined in of the donor
accordance with the three preceding articles, the It must be executed and The donation must be in
accepted w/ the the form of a will, w/ the
reduction shall be made as follows:
formalities prescribed by formalities for the
(1) Donations shall be respected as long as the legitime
Arts 748-749 of the validity of wills;
can be covered, reducing or annulling, if necessary, the
NCC, except when it is otherwise, it is void and
devisees or legacies made in the will; onerous in w/c case the cannot transfer
(2) The reduction of the devises or legacies shall be pro rules on contracts will ownership
rata, without any distinction whatever. If the testator apply
has directed that a certain devise or legacy be paid in

Preference Among Donations value of the usufruct may conceivably exceed that of
Q: Suppose there are two or more donations inter the free disposable portion of the testator. Hence, the
vivos, and suppose they would impair the legitime if necessity of granting the compulsory heirs the option
allowed to stand, which must be reduced or hereinabove referred to.
suppressed?
Rule for Life Annuities
A: “If, there being two or more donations, the What has been said of a legacy of usufruct may also
disposable portion is not sufficient to cover all of them, be said of a legacy of life annuity.
those of the more recent date shall be suppressed or
reduced with regard to the excess.” (Art. 773, Civil The life annuity should last till the recipient’s death, and
Code). In other words, “first come, first served.” might, therefore, extend for a conceivably long period
Suppose the dates of the donation are the same, what of time.
should be done? They should all be proportionately
reduced. As defined in our law, “the aleatory contract of life
annuity binds the debtor to pay an annual pension or
Cross-Reference to Art. 950 income during the life of one or more determinate
Art. 950 of the Civil Code reads as follows: “If the estate persons in consideration of a capital consisting of
should not be sufficient to cover all the legacies or money or other property whose ownership is
devises, their payment shall be made in the following transferred to him at once with the burden of the
order: income.”
(1) Remuneratory legacies or devises;
(2) Legacies or devises declared by the testator to be An annuity refers to a series of equal payments at
preferential; fixed intervals deriving from an original lump-sum
(3) Legacies for support; investment.
(4) Legacies for education;
(5) Legacies or devises of a specific, determinate Reduction of Testamentary Dispositions and
thing which forms a part of the estate; Donations
(6) all others pro rata.” The order of preference enunciated in the above article
contemplates a case in which the legitime of
Rule Re Usufruct or Life Annuity compulsory heirs is impaired by inofficious
The last paragraph of Art. 911, reads as follows: “If the testamentary dispositions and inofficious donations
devise or legacy consists of a usufruct or life annuity, inter vivos. In such case, the rule is to reduce or
whose value may be considered greater than that of suppress the testamentary disposition or even the
the disposable portion, the compulsory heirs may donation if necessary.
choose between complying with the testamentary
provision and delivering to the devisee or legatee the However, as between donations inter vivos and
part of the inheritance of which the testator could freely donations or dispositions mortis causa, preference is
dispose.” always given to the former. Therefore, in case of
concurrence between the two and the disposable
Under this paragraph, the compulsory heirs are given portion is not sufficient to cover both of them, the
the option, in case the value of the devise or legacy testamentary dispositions, such as legacies or devises,
may be considered as greater than the free disposable are the first to be reduced or even suppressed if
portion of the inheritance: necessary. If after such suppression, the value of the
(1) To pay either the devise or legacy; or donations inter vivos cannot still be covered by the
(2) To deliver the disposable portion disposable portion, then such value shall be reduced in
order to preserve the legitime of compulsory heirs.
EXAMPLE: A gave B a legacy of usufruct over a piece
of land. The estimated value of the usufruct (calculated The principal reason for giving preference to donations
over a period of time) is P120,000 but the free portion inter vivos is found in the fact that they are irrevocable
of A’s estate is only P100,000.00. It is clear, therefore, by their very nature. Acceptance by the donee is
that the value of the usufruct- legacy is greater than the essential, so much so that they are perfected only from
disposable portion. The compulsory heirs of A are the moment the donor knows of the acceptance by the
given the right to either comply with the testamentary donee. Once perfected, they produce juridical effects;
provision by giving B said usufruct, or else give B they become irrevocable.
merely a sum of money or properties equivalent to
P100,000 which is the free portion. Note that B has no Testamentary dispositions, on the other hand, are
right to choose. It is A’s forced heirs who are given the unilateral in character. They produce juridical effects
choice so that the legitime may not be impaired or only after the death of the testator. Hence, to place both
jeopardized. in the same level would be equivalent to allowing the
donor to partially revoke an act, which by its very nature
Reason For Separate Paragraph on Usufructs is irrevocable, by the simple expediency of providing
Q: Why is there a separate paragraph for devises and for legacies or devises in his last will and testament,
legacies of usufructs? besides creating as a necessary consequence the
disturbances which would be occasioned by the
A: Because usufructs may be constituted to last till the reduction of donations made by him while living.
usufructuary’s death (Art. 603, par. 1), therefore, the

Art. 912. If the devise subject to reduction should consist Art. 914. The testator may devise and bequeath the free
of real property, which cannot be conveniently divided, portion as he may deem fit.
it shall go to the devisee if the reduction does not absorb
onehalf of its value; and in a contrary case, to the The Free Disposal
compulsory heirs; but the former and the latter shall The free portion (really the “free disposal”) may be
reimburse each other in cash for what respectively the object of a charge, a substitution, or a condition.
belongs to them.
The socalled “free portion” is not exactly free for if the
The devisee who is entitled to a legitime may retain the surviving spouse and/or illegitimate children are
entire property, provided its value does not exceed that present, the “free portion” is burdened by their
of the disposable portion and of the share pertaining to legitimes. If anything is still left, this would really be
him as legitime. “free,” and the more proper term for this would be the
“free disposal.’’
Art. 913. If the heirs or devisees do not choose to avail
themselves of the right granted by the preceding article, Evidently, the term “bequeath” applies in this Article to
movable property
any heir or devisee who did not have such right may
exercise it; should the latter make use of it, the property
as distinguished from “devise” which can only have
shall be sold at public auction at the instance of any one
reference to immovable property.
of the interested parties.
The free portion (really the “free disposal”) if the
Rules of Reduction of Devises testator so desires, can be given to the compulsory
WHERE heirs in any proportion he may deem fit
REDUCTION: REALTY WILL
GO:
does not devisee who will pay
absorb ½ of the the difference
value to the
compulsory
heirs in cash
absorbs more compulsory who will pay
½ of the value heirs the devisee the
value of his
interest in cash
absorbs devisee as the evident
exactly ½ of intention of the
the value testator is for
the devisee to
have the
particular
property
If the devisee is also the compulsory heir, he may

retain the ENTIRE PROPERTY provided its value
does not exceed his share both as devisee and as
compulsory heir
→ if it exceeds, he may retain the property but he
should PAY the compulsory heirs the excess in cash
If the heir/devisee entitled to Any

retain the property does not heir/devisee
exercise the right to retain the who did not
property and to reimburse the have such right
others… may exercise it
If nobody The property shall be sold at

chooses to public auction at the instance of
avail of the any of the heirs or devisees, and
right.. the proceeds distributed
accordingly.

Legitime Vice Dean Castillo-Taleon
ART. 888 LEGITIMATE CHILDREN AND ✓ RULE OF PROXIMITY: in every inheritance, the relative Art. 888. The legitime of legitimate children
DESCENDANTS nearest in degree excludes the more distant ones, saving and descendants consists of one-half of the
(anak/apo ni testator) the right of representation when it properly takes place. hereditary estate of the father and of the
Share of the LC/D = ½ of the legitime ✓ Right of representation mother.
½ LC/LD ½ FP The latter may freely dispose of the remaining

½ divided by the number of Children half, subject to the rights of illegitimate
children and of the surviving spouse as
hereinafter provided.
ART.889 LEGITIMATE PARENTS OR ASCENDANTS • They inherit only in absence (default) of legitimate children Art. 889. The legitime of legitimate parents or
(magulang/lolo-a ni testator) and descendants descendants consists of one-half of the
→ This is, however, not true if they concur with an hereditary estate of their children and
½ LP/LA ½ FP adopted child of the testator because of the rule stated descendants.
or in Art. 343 of the Code to the effect that if the adopter
¼F ¼M ½ FP is survived by legitimate parents or ascendants and by The children or descendants may freely
an adopted child, the latter shall not have more dispose of the other half, subject to the rights
successional rights than an acknowledged natural of illegitimate children and of the surviving
child. This constitutes an exception to the general rule spouse as hereinafter provided.
that an adopted child shall have the same successional
rights as a legitimate child.
 There is no right of representation in the ascending line
• Division is made by line. If the ascendants are in the same
degree, some in the paternal line and others in the maternal
line, they divide the legitime EQUALLY per line and not per
capita
ART. 892 Presence of Grandchildren Art. 892. If only one legitimate child or
ONE LEGITIMATE CHILD/DESCENDANT If there be no children, but there are, say, 6 grandchildren, the descendant of the deceased survives, the
CONCURRING W/ THE SURVIVING SPOUSE share of the surviving spouse should not be the same as the widow or widower shall be entitled to one-
(anak | asawa) share of each of said six descendants, but should be computed fourth of the hereditary estate. In case of a
on the number of children which said grandchildren are legal separation, the surviving spouse may
½ LC/LD ¼ SS ¼ FP supposed to represent, for after all, grandchildren inherit by right inherit if it was the deceased who had given
of representation. This is also TRUE even if all the children cause for the same.
repudiate, and the grandchildren inherit in their own right, and
TWO or MORE LEGITIMATE
not by representation. If there are two or more legitimate children or
CHILDREN/DESCENDANTS CONCURRING W/ THE
SURVIVING SPOUSE descendants, the surviving spouse shall be
Legacy or Devise to Surviving Spouse
(mga anak | asawa) entitled to a portion equal to the legitime of
Any devise or legacy given to the surviving spouse should be
LC = ½ of Legitime each of the legitimate children or
considered as being in addition to his or her legitime, and must
Share of each LC = ½ divided by the number of Children descendants.
therefore be charged to the free portion
The share of the Surviving Spouse is equal to the share of 1
Child. In both cases, the legitime of the surviving
spouse shall be taken from the portion that
can be freely disposed of by the testator.

ART.893 LEGITIMATE PARENTS OR ASCENDANTS Art. 893. If the testator leaves no legitimate
with SURVIVING SPOUSE descendants, but leaves legitimate
(magulang | asawa) ascendants, the surviving spouse shall have a
right to one-fourth of the hereditary estate.
½ LP/LA ¼ SS ¼ FP This fourth shall be taken from the free portion
of the estate.
ART.894 ILLEGITIMATE CHILDREN with SURVIVING Art. 894. If the testator leaves illegitimate
SPOUSE children, the surviving spouse shall be entitled
(mga anak sa labas | asawa) to one-third of the hereditary estate of the
deceased and the illegitimate children to
1/3 IC 1/3 SS 1/3 FP another third. The remaining third shall be at
the free disposal of the testator.
ART.895 LEGITIMATE CHILDREN/DESCENDANTS Art. 895. The legitime of each of the

with NATURAL/ OTHER ILLEGITIMATE CHILDREN acknowledged natural children and each of
(anak | anak sa labas) the natural children by legal fiction shall
consist of one-half of the legitime of each of
NCC the legitimate children or descendants.
Each ANC/NCLF ½ of the share of each LC/D
4/5 of share of each The legitime of an illegitimate child who is
Each OIL ANC/NCLF; or neither an acknowledged natural, nor a
2/5 of share of each LC/D natural child by legal fiction, shall be equal in
2x share of ANC/NCLF; or every case to four-fifths of the legitime of an
Each LC/D
½ of legitime acknowledged natural child.
FC The legitime of the illegitimate children shall

½ of share be taken from the portion of the estate at the
½ LC/LD of each FP free disposal of the testator, provided that in
LC no case shall the total legitime of such
illegitimate children exceed that free portion,
and that the legitime of the surviving spouse
must first be fully satisfied.
ART.896 LEGITIMATE PARENTS OR ASCENDANTS Art. 896. Illegitimate children who may survive
and ILLEGITIMATE CHILDREN with legitimate parents or ascendants of the
(magulang | anak sa labas) deceased shall be entitled to one-fourth of the
hereditary estate to be taken from the portion
½ LP/LA ¼ IC ¼ FP at the free disposal of the testator.

ART.897 and 898 SURVIVING SPOUSE with Reduction of the Legitime Art. 897. When the widow or widower survives
LEGITIMATE CHILDREN OR DESCENDANTS and The legitime of the legitimate children and that of the surviving with legitimate children or descendants, and
ILLEGITIMATE CHILDREN spouse may not be reduced. They shall be preferred over that acknowledged natural children, or natural
(anak | anak sa labas | asawa) of the illegitimate children. If estate is NOT SUFFICIENT, just children by legal fiction, such surviving
If more than 1 LC: give whatever remains of the estate to the illegitimate children. spouse shall be entitled to a portion equal to
(1) LC = ½ of Legitime [Share of each LC = ½ divided by the legitime of each of the legitimate children
the number of Children]
which must be taken from that part of the
(2) The share of the Surviving Spouse is equal to the share
of 1 LC
estate which the testator can freely dispose of.
(3) Share of each IC = ½ of share of each LC
Art. 898. If the widow or widower survives with
If only 1 LC: legitimate children or descendants, and with
(1) LC = ½ of Legitime [Share of each LC = ½ divided by illegitimate children other than acknowledged
the number of Children] natural, or natural children by legal fiction, the
(2) The share of the Surviving Spouse is ¼ (ART 292) share of the surviving spouse shall be the
(3) Share of each IC = ½ of share of each LC same as that provided in the preceding article.
ART.899 SURVIVING SPOUSE with LEGITIMATE Art. 899. When the widow or widower survives
PARENTS OR ASCENDANTS and ILLEGITIMATE with legitimate parents or ascendants and
CHILDREN with illegitimate children, such surviving
(magulang | anak sa labas | asawa) spouse shall be entitled to one-eighth of the
hereditary estate of the deceased which must
½ LP/LA
1/8 1/8
¼ IC be taken from the free portion, and the
SS FP illegitimate children shall be entitled to one-
fourth of the estate which shall be taken also
from the disposable portion. The testator may
freely dispose of the remaining one-eighth of
the estate.
ART.900 SURVIVING SPOUSE ALONE Articulo Mortis Art. 900. If the only survivor is the widow or
(asawa) Applies only if it was the deceased who was the party in danger widower, she or he shall be entitled to one-
of death at the time of the marriage; AND if the cause of death half of the hereditary estate of the deceased
GENERAL RULE is the SAME as the sickness, illness or injury existing at the time spouse, and the testator may freely dispose of
½ SS ½ FP of the marriage — the purpose of the law being to avoid a the other half.
marriage purely for FINANCIAL GAIN.
EXCEPTION: Articulo Mortis + Decedent dies w/in 3 If the marriage between the surviving spouse
months and the testator was solemnized in articulo
1/3 SS 2/3 FP
mortis, and the testator died within three
months from the time of the marriage, the
EXCEPTION TO THE EXCEPTION: Articulo Mortis + legitime of the surviving spouse as the sole
Decedent dies w/in 3 months BUT living together for 5 heir shall be onethird of the hereditary estate,
years except when they have been living as husband
and wife for more than five years. In the latter
½ SS ½ FP
case, the legitime of the surviving spouse shall
be that specified in the preceding paragraph.
(n)

ART.901 and 902 ILLEGITIMATE CHILDREN w/ no Representation of Illegitimate Child: the right of Art. 901. When the testator dies leaving
other compulsory heirs representation is granted to both legitimate and illegitimate illegitimate children and no other compulsory
(anak sa labas) descendants of illegitimate children when the latter predecease heirs, such illegitimate children shall have a
their own parents. right to one-half of the hereditary estate of the
½ IC ½ FP deceased.
Representation of Legitimate Child: [not the same rights
granted with IC] there is no provision w/c expressly gives the The other half shall be at the free disposal of
same right to the illegitimate descendants of a legitimate child. the testator.
Shares of Representatives: When representatives are of
Art. 902. The rights of illegitimate children set
different classes (that is, legitimate, acknowledged, or spurious),
forth in the preceding articles are transmitted
they inherit naturally in the SAME PROPORTIONS as in Art.
upon their death to their descendants,
895, since this is also the rule in legal succession, and
succession by representation is nothing but succession by whether legitimate or illegitimate.
OPERATION OF LAW.
ART.903 ESTATE LEFT BY AN ILLEGITIMATE If the testator, however, is an illegitimate person and he is Art. 903. The legitime of the parents who have
CHILD survived by his illegitimate parents and illegitimate children, the an illegitimate child, when such child leaves
(anak sa labas si testator) former are not entitled to any legitime, because they are neither legitimate descendants, nor a
excluded by the presence of the latter. In such case, the legitime surviving spouse, nor illegitimate children, is
Parents of Illegitimate Child + Descendants (legitimate of the illegitimate children shall consist of onehalf (1/2) of the one-half of the hereditary estate of such
or illegitimate) of Illegitimate Child hereditary estate. illegitimate child. If only legitimate or
½ C/D ½ FP illegitimate children are left, the parents are
Rule of exclusion applies: Illegitimate Parents will not Grandparents have no right to succeed in representation of the not entitled to any legitime whatsoever.
inherit illegitimate parents of the decedent. In the ascending line, the
grandparents of the illegitimate child are not entitled to If only the widow or widower survives with
succession.
Parents of Illegitimate Child who leaves neither parents of the illegitimate child, the legitime of
legitimate/illegitimate descendants, nor a surviving the parents is one-fourth of the hereditary
spouse, nor legitimate/illegitimate children estate of the child, and that of the surviving
½ IP ½ FP spouse also one-fourth of the estate.
Parents of Illegitimate Child concurring with Surviving

Spouse
¼ IP ¼ SS ½ FP

Disinheritance Vice Dean Castillo-Taleon
SECTION 6 also from the free portion, i.e., whatever amount
DISINHERITANCE he would have otherwise received as voluntary
heir or intestate heir. Where there is institution of
Art. 915. A compulsory heir may, in consequence of heir, the heir losses only his legitime.
disinheritance, be deprived of his legitime, for causes
expressly stated by law. Other Ways of Depriving the Heirs of their
Legitime
Art. 916. Disinheritance can be effected only through a Aside from disinheritance, there are other conceivable
will wherein the legal cause therefor shall be specified. ways in which a compulsory heir is deprived, in effect,
of what should have been his legitime, namely:
(1) Repudiation
Art. 917. The burden of proving the truth of the cause for
(2) Incapacity by reason of unworthiness
disinheritance shall rest upon the other heirs of the
(3) Predecease, including legal absence
testator, if the disinherited heir should deny it. (4) Loss of the estate
(5) Existence of debts and charges which equal or
Concept of Disinheritance exceed the hereditary estate
= the act of the testator in depriving a compulsory
heir of his legitime for causes expressly stated by Requisites of Disinheritance
law. (Jurado) In order that a compulsory heir may be
= the process or act, thru a testamentary disposition deprived of his legitime through disinheritance, the
of depriving in a will any compulsory heir of his following requisites must concur: EVICTU
legitime for true and lawful causes.
= a testamentary disposition by which a testator for (1) The disinheritance must be for a cause Expressly
a cause or causes authorized by law deprives a stated by law;
compulsory heir of his share in the legitime (2) The disinheritance must be effected only through
a Valid will;
It is the only instance recognized in the Civil Code by (3) The legal cause for the disinheritance must be
which a compulsory heir may be deprived of his specified in the will Itself;
legitime by the testator. (4) The cause for the disinheritance must be Certain
and true;
PURPOSE OF THE LAW: It is a fact that there are (5) The disinheritance must be Total; and
certain instances when a person may not want his (6) The disinheritance must be Unconditional.
property or fortune for which he had slaved for so long
to pass after his death to a compulsory heir because of 1st REQUISITE: that it must be for a cause expressly
some present or antecedent act of the latter. The law, stated by law
therefore, allows him to punish such heir, but only in • The cause may actually be a just one, or the
the cases expressly stated by law. testator may actually believe that he has a very
strong ground for depriving a compulsory heir of
Implications from the Definition of Disinheritance any participation in the inheritance, but if such
• Since disinheritance must be made in a WILL, cause is not one of those expressly recognized by
there is no disinheritance in legal succession. law, he cannot disinherit such heir.
• Only compulsory heirs can be disinherited, for • It is, therefore, essential that the cause must be
they alone are entitled to the legitime. one of those designated by law; otherwise, the
→ So, brothers and sisters for example, cannot disinheritance is null and void
be the object of any disinheritance. As to
them, and strangers, the testator may institute 2ND REQUISITE: the disinheritance must be effected
them or not. The testator may indeed set only through a valid will
aside or revoke any legacies or devises, with REASON: Because the act of disinheritance involves
or without any reason). the exercise of an exceptional power by virtue of which
• Since compulsory heirs may be disinherited only a compulsory heir is deprived of his legitime, the same
for lawful causes, it is clear that the courts may requisites and formalities necessary for the disposition
properly inquire into the validity of a disinheritance. of properties mortis causa are also necessary for such
• A disinheritance excludes the heir not only from act.
the legitime but also from the free portion; in other • Consequently, if the will is invalid because it has
words, he is completely excluded from the not been executed in accordance with the
inheritance. formalities prescribed by law, the disinheritance is
→ Reason: If by disinheritance an heir is also invalid;
excluded from the legitime (which should • if the will is valid, but subsequently it is revoked in
have been his as a matter of right) with accordance with law, the disinheritance is also
greater reason should the testator’s attitude revoked.
or dislike toward him, exclude him from the
free portion (which is not his as a matter of 3RD REQUISITE: the cause for the disinheritance
right). must be specified in the will itself.
• Its effect where there is no institution of any heir, • there can be no implied or tacit disinheritance.
is to totally exclude a compulsory heir from the • It must be noted, however, that the last will of the
inheritance, that is, not only from the legitime but testator may be embodied in several documents.

Taken together, they constitute his last will and (9) The will must not have been Revoked — at least
testament. insofar as the disinheritance is concerned.
o Therefore, if a compulsory heir is
disinherited in one will without a Art. 918. Disinheritance without a specification of the
specification of the cause, the defect may cause, or for a cause the truth of which, if contradicted,
be cured if the cause thereof is specified is not proved, or which is not one of those set forth in this
in another will. Code, shall annul the institution of heirs insofar as it
may prejudice the person disinherited; but the devises
4TH REQUISITE: the cause specified in the will must and legacies and other testamentary dispositions shall
be certain and true.
be valid to such extent as will not impair the legitime.
• This can be implied from the provision of Art. 917,
which declares that the burden of proving the truth
Imperfect Disinheritance
of the cause for disinheritance shall rest upon the
other heirs of the testator if the disinherited heir = the expressed attempt of the testator in depriving
should deny it. a compulsory heir of his legitime without the
requisite formalities prescribed by law.
• Consequently, the cause must not be a mere
figment of the mind or an insane delusion. Neither
must it be based on mere suspicion or on the (1) (NO CAUSE STATED) when it does not specify
biased opinion of others. the cause;
• Manresa states it, the testator must not only have (2) (NOT TRUE CAUSE) when it specifies a cause the
a knowledge of the cause, but it must also be in truth of which, if contradicted, is not proved; and
the process of being committed, or at least, it (3) (NOT LEGAL CAUSE) when it specifies a cause
has already been committed at the time of the which is not one of those set forth in the Code.
disinheritance (4) those cases where the other requisites for a valid
• A disinheritance based on a false cause is without act of disinheritance are lacking
effect. Likewise, a revocation of a will based on a → such as when it is not total or it is conditional
false cause or an illegal cause is null and void. or it is ineffective or there is subsequent
reconciliation
(Paras) Requisites for a Valid Disinheritance
LVTEETSIR IMPERFECT VALID
PRETERITION
DISINHERITANCE DISINHERITANCE
(1) Must be for a LEGAL CAUSE. (The cause must be
the person omitted
one authorized by law; hence, even if graver than the person disinherited may must be a
the person disinherited
those set forth in the law, if it be not one of those may be any
be any compulsory heir compulsory heir in
compulsory heir
enumerated, the disinheritance will be ineffective.) the direct line.
(2) Must be made in a Valid will. the attempt to deprive the the attempt to deprive
the attempt is always
(3) Must be for a TRUE CAUSE. heir of his legitime is always the heir of his legitime
implied.
express is always express
(4) Must be made Expressly (thus, disinheritance is
disinheritance is
NOT presumed). the attempt to deprive the the attempt may be
always intentional
(5) Must be for an EXISTING CAUSE therefore, there heir of his legitime is always intentional or
(thus, it is an express
intentional unintentional.
can be no conditional or preventive disinheritance; deprivation)
although the REVOCATION of a the disinherited heir
DISINHERITANCE may be conditional. the effect is a partial inherits NOTHING
the effect is a total
annulment of the institution (either by way of
→ The cause must be known to the testator. It of heirs
annulment.
legitime, or by way of
must exist as a fact so that the other heir may free portion)
be able to prove it if denied. there is no cause stated or may be with cause or cause must always be
(6) Must be TOTAL or COMPLETE (not partial). no true cause stated or the without stated in the will; must
(7) The cause must be STATED in the WILL itself cause is not legal cause be true and legal
may exist with or
→ Although the exact words of the law need not without a will (as
be used nor details given, nor is it essential when everything has
that the statement of the fact of disinheritance It is contained in a will
been given to only a will is always
and the statement of the cause be made one of the required
compulsory heirs by
together in one will or instrument as long as a
way of donation inter
necessary connection is proved. vivos).
→ Neither is it essential that the disinheritance The institution of heirs
be made in the same instrument by which the insofar as it may prejudice
the institution is
testator provides for the disposition of his the person disinherited is
always VOID —
ANNULLED but the devises may be VALID —when
properties mortis causa, for the law merely except when the
and legacies and other all the requirements of
says “a will,” meaning “any will”). testamentary dispositions
preterited heir
the law are followed.
(8) The heir disinherited must be clearly Identified, so predeceases
shall be valid to such extent
the testator.
that there will be no doubt as to who is really being as will not impair the
disinherited. legitime.
In both cases, the omitted heir and the imperfectly
→ The validity of the cause for disinheritance will
disinherited heir get at least their legitime
depend on the identity of the compulsory heir In both cases, the legacies and devises remain valid
who committed the same. If the identity of the insofar as the legitime has not been impaired.
disinherited heir cannot be ascertained, the
disinheritance should not be given effect.

Effect of Imperfect Disinheritance o If an “attempt” is sufficient to disinherit, it
IF THE TESTATOR HAD MADE A DISPOSITION OF follows that if the act is consummated, or
THE ENTIRE ESTATE: the imperfect disinheritance frustrated there is sufficient cause for
shall result in the annulment of the institution of disinheritance. This is true even if the heir be
heirs insofar as the legitime of the compulsory heir only an accomplice, provided of course that
who is disinherited is prejudiced, although the there was intent to kill.
devises and legacies and other testamentary • “spouse, descendants, or ascendants” — refers
dispositions shall be valid, provided that the legitime to those of the testator
of compulsory heirs is not impaired. • If after conviction there is a pardon, disinheritance
→ This effect is, therefore, different from that of is also proper, unless, the pardon be based on the
preterition where the annulment of the heir’s complete innocence.
institution of heirs is total • Conviction for “homicide thru reckless
imprudence” is not a ground under par. (1) in view
IF THE TESTATOR DID NOT DISPOSE OF THE of the absence of intent to kill.
FREE PORTION: The compulsory heir is given all that
he is entitled to receive as if the disinheritance has not (2) When the child or descendant has accused the
been made, without prejudice to lawful dispositions testator of a crime for which the law prescribes
made by the testator in favor of others. imprisonment for six years or more, if the accusation
has been found groundless
Art. 919. The following shall be sufficient causes for the Requisites:
disinheritance of children and descendants, legitimate 1. the heir must have accused the testator of a
as well as illegitimate. LAAFSMDC crime;
(1) When a child or descendant has been found guilty of 2. the penalty prescribed by law for such crime
an attempt against the Life of the testator, his or her must be six years imprisonment or more, and
spouse, descendants, or ascendants; 3. the accusation must have been found to be
(2) When a child or descendant has Accused the testator groundless.
of a crime for which the law prescribes imprisonment 4. the ascendant is acquitted
for six years or more, if the accusation has been found
“accusation”
groundless;
= the act of the disinherited heir of instituting the
(3) When a child or descendant has been convicted of
criminal action in the capacity of a complainant,
Adultery or concubinage with the spouse of the testator;
= any act of intervention such as being a witness for
(4) When a child or descendant by Fraud, violence,
the prosecution, by which he accuses the testator
intimidation, or undue influence causes the testator to
of having committed the crime charged.
make a will or to change one already made;
(5) A refusal without justifiable cause to Support the
• it will not make any material difference whether the
parent or ascendant who disinherits such child or accusation was found groundless during the
descendant. preliminary investigation, or during the trial, or
(6) Maltreatment of the testator by word or deed, by the on appeal.
child or descendant; • Notice here that the alleged crime must have been
(7) When a child or descendant leads a Dishonorable or committed against the child himself or against any
disgraceful life; descendant, or for that matter against anybody.
(8) Conviction of a crime which carries with it the
penalty of Civil interdiction. (3) When the child or descendant has been convicted
of adultery or concubinage with the spouse of the
Grounds for Disinheritance of Descendants testator.
Requisites:
(1) When a child or descendant has been found guilty 1. There must be a final judgment of conviction;
of an attempt against the life of the testator, his or her 2. The other party to the crime is the spouse of
spouse, descendants or ascendants. the testator.
Requisites:
1. the child or descendant must have committed A final judgment of conviction is an essential
either attempted or frustrated parricide. requisite.
2. there must have been a previous criminal • Mere adultery or concubinage with the spouse of
conviction [there must be final judgment of the testator is not, therefore, a ground for the
conviction even if rendered after the disinheritance of a child or descendant.
execution of the will] o It is, however, possible that even without
3. there must be intent to kill a previous criminal conviction, adultery or
concubinage with the spouse of the
• It is, however, possible that even if there is no testator may be a ground for disinheriting
previous criminal conviction, the attempt, if it is the child or descendant, provided that it
made against the life of the testator, will constitute falls within the scope or purview of “living
a valid ground for disinheritance, provided that it a disgraceful or dishonorable life” within
falls within the scope or purview of “maltreatment the meaning of No. 7 of the article under
of the testator by word or deed” within the meaning discussion.
of No. 6 of the article under discussion

Q: If a son commits adultery with his mother, and is (b) maltreatment by deed (any act of violence
found guilty thereof by final judgment, may the mother short of an attempt to kill)
disinherit him on this ground?
A: No. The law does not say so. The causes for The essence of the cause is the GROSS
disinheritance must be strictly construed and should DISRESPECT to the testator who is an ascendant.
not cover cases not clearly governed by the law. ✓ It is clear that this ground includes all acts of
violence against the person of the testator.
(4) When the child or descendant by fraud, violence, ✓ It also includes any maltreatment of the testator by
intimidation, or undue influence causes the testator to words, whether such words are defamatory or not.
make a will or to change one already made.  A final judgment of conviction is not required.
Requisites:
1. The heir causes the testator to make a will or ✓ It is, however, necessary that the maltreatment
change one already made; must have been intentional or voluntary (not
2. He employs fraud, violence, intimidation, or merely thru imprudence)
undue influence on the testator. → Otherwise, if it was due to insanity, lack of
discernment or tender years of the child or
the fraud, violence, intimidation, or undue influence descendant, the maltreatment cannot be
may have been employed either: considered as a sufficient cause for
• for the purpose of causing the testator to disinheritance
execute a will or
• for the purpose of causing the testator to • Manresa is of the opinion that as long as acts of
change or will which has already been made. violence are committed against the testator,
whether physical injuries resulted or not, there
It is not essential that the making or changing of the will would be a case of maltreatment. This would
favors the heir. indeed be maltreatment by deed. Of course, if
there was actually an attempt against the life of the
(5) When the child or descendant refuses without testator, paragraph 1 of Art. 919 would govern. It
justifiable cause to support the testator. is believed, however, that even if there is no
Requisites: conviction for such an attempt, still, should there
1. the heir must have refused to support the be maltreatment by deed, the latter as such would
testator; constitute enough cause for disinheritance.
2. the refusal was without justifiable cause,  Note that maltreatment by an ascendant of a
being lawfully obligated to give the support. descendant does not constitute a ground for the
descendant to disinherit the ascendant, for while it
may be an ABUSE, it is generally in the exercise
• the refusal of the heir to give support must be
of a power. The reverse is however repugnant to
without justifiable cause.
natural law, and is therefore a ground for
→ Hence, if there was a justifiable cause for
disinheritance.
such refusal, the disinheritance would be
ineffectual or imperfect.
(7) When the child or descendant leads a
dishonorable or disgraceful life.
Examples:
(a) those cases where the resources of the child or
• any dishonorable or disgraceful conduct, such as
descendant have been reduced to the point where
engaging in a life of crime or immorality,
he cannot give the support without neglecting his
provided that it characterizes the mode of living of
own needs and those of his family
the child or descendant disinherited, is a sufficient
(b) when the testator has improved his fortune in such
cause for disinheritance.
a way that he no longer needs the allowance for
• There need not be final judgment of conviction.
his subsistence
The essence of the cause is that anything that
brings dishonor or disgrace to the family of the
• No judicial demand is needed for the law does not
testator merits correction in the form of
require this. Note that when a judicial
disinheritance. However, a single act is not
pronouncement is needed, the law says so.
ordinarily sufficient, for “leading a life” implies
• If there had been a refusal to support, and support continuity
is later given but only because of judicial
compulsion, this would still be a valid ground for (8) When the child or descendant is convicted of a
disinheritance. crime which carries with it the penalty of civil
interdiction.
(6) When the child or descendant maltreats the This is self-explanatory, but it should be noted that
testator by word or deed. there must be a final judgment of conviction here.
Requisites: Moreover, under Arts. 40 and 41 of the Revised Penal
1. There must be maltreatment by word or deed; Code, civil interdiction is given as an accessory penalty
2. The maltreatment must be intentional. to:
(a) death (if commuted)
This covers two causes: (b) reclusion perpetua
(a) maltreatment by word (slanderous words, (c) reclusion temporal
offensive language)

NOTE also that if the Indeterminate Sentence Law is • The word “daughters” includes other descendants.
applied, it is the MAXIMUM that should be considered, • The “attempt against virtue’’ does not have to be
not the MINIMUM. in a final judgment.
• When the parents encourage or force their
Art. 920. The following shall be sufficient causes for the daughters into a life of prostitution, the daughters
disinheritance of parents or ascendants, whether concerned have a valid cause for disinheriting their
legitimate or illegitimate: ALAAFPSL parents. As a matter of fact, the life does not
(1) When the parents have Abandoned their children or necessarily have to be one of prostitution. It is
induced their daughters to live a corrupt or immoral life, sufficient if the life be “corrupt or immoral.”
or attempted against their virtue;
(2) When the parent or ascendants has been convicted *(2) When the parent or ascendant has been
of an attempt against the Life of the testator, his or her convicted of an attempt against the life of the testator,
spouse, descendants, or ascendants; his or her spouse, descendants or ascendants.
(3) When the parent or ascendant has Accused the
*(3) When the parent or ascendant has accused the
testator of a crime for which the law prescribes
testator of a crime for which the law prescribes
imprisonment for six years or more, if the accusation
imprisonment for six years or more, if the accusation
has been found to be false;
has been found groundless.
(4) When the parent or ascendant has been convicted of Of course, if the accusation proves to be true, there will
Adultery or concubinage with the spouse of the testator; not be a valid disinheritance.
(5) When the parent or ascendant by Fraud, violence,
intimidation, or undue influence causes the testator to *(4) When the parent or ascendant has been
make a will or to change one already made; convicted of adultery or concubinage with the spouse
(6) The loss of Parental authority for causes specified in of the testator.
this Code;
(7) The refusal to Support the children or descendants *(5) When the parent or ascendant by fraud, violence,
without justifiable cause; intimidation, or undue influence causes the testator to
(8) An attempt by one of the parents against the Life of make a will or to change one already made.
the other, unless there has been a reconciliation
between them. (6) The loss of parental authority for causes specified
in the Civil Code.
Grounds for Disinheritance of Ascendants
Cases when Parental Authority Terminates:
(1) When the parents have abandoned their children, 1. upon the death of the parents or of the child
or induced their daughters to live a corrupt or immoral 2. upon emancipation;
life, or attempted against her virtue. 3. adoption of the child;
4. upon the appointment of a general guardian
1. when the parents have abandoned their children; 5. upon judicial declaration of abandonment of the
2. when the parents have induced their daughters child in a case fi led for the purpose
[include all descendants] to live a corrupt or 6. upon final judgment of a competent court divesting
immoral life; and the party concerned of parental authority
3. when the parents have attempted against the 7. upon judicial declaration of absence or incapacity
virtue of their daughters. of the person exercising parental authority.
8. ART 230 FC: The father, and in a proper case the
According to Sanchez Roman, “abandonment” within mother, shall temporarily (merely suspended) lose
the meaning of the law refers to the failure of the authority over their children: when by conviction in
parents to give to their children due care, instruction a criminal case, the penalty of civil interdiction is
and support. imposed upon him or her.
→ This definition is of course in consonance with the 9. ART 231 FC: The court in an action filed for the
provision of what is now Art. 316 of the present purpose in a related case may also suspend
Code to the effect that the father and mother have, parental authority if the parent or the person
with respect to their unemancipated children, the exercising the same: (1) Treats the child with
duty to support them, to have them in their excessive harshness or cruelty; (2) Gives the child
company, educate and instruct them in keeping corrupting orders, counsel or example; (3)
with their means, and to represent them in all Compels the child to beg; or (4) Subjects the child
actions which may redound to their benefit. Hence, or allows him to be subjected to acts of
failure to comply with these duties shall justify a lasciviousness. The grounds enumerated above
child in disinheriting a parent. are deemed to include cases which have resulted
→ Abandonment is indeed physical, moral, social or from culpable negligence of the parent or the
educational; hence, it does not have the technical person exercising parental authority. The courts
signification of “abandonment” under the RPC. may deprive the parents of their authority or
Moreover, whether intentional or not, the negligent suspend the exercise of the same if they should
and careless failure to perform the duties of treat their children with excessive harshness or
parenthood is a significant element of should give them corrupting orders, counsels, or
abandonment. examples, or should make them beg or abandon
them.

• It is evident that there must be an actual loss of (7) When the parent or ascendant refuses without
parental authority; otherwise, the testator cannot justifiable cause to support the testator.
disinherit the parent or ascendant.
→ This is so, even granting that such parent or (8) An attempt by one of the parents against the life of
ascendant has committed an act or offense the other, unless there has been a reconciliation
which constitutes a ground for loss of parental between them.
authority by judicial decree.
• It will be observed that unlike the grounds stated
Q: Does that mean that even if the parent or ascendant is Nos. 2 and 4 of the article under discussion,
is not guilty of any offense which constitutes a ground under this ground, a final judgment of conviction
for deprivation of parental authority by final judgment, is not an essential requisite.
the child or descendant can still disinherit such parent • Note well that this paragraph does not apply when
or ascendant, provided that there is an actual loss of the attempt is against the life of a person other
parental authority effected by emancipation, or than the other parent.
adoption, or appointment of a general guardian, or → When a father for instance attempts to kill his
remarriage of a widowed mother? own father-in-law, the son of the offending
A: when the law speaks of the right of a child or father cannot disinherit him on this ground.
descendant to disinherit a parent or ascendant if there • The reconciliation between the parents deprives
is loss of parental authority “for causes specified in this the child of the right to disinherit the offending
Code,” the cause referred to are those specified in Arts. parents on this ground.
330 and 332 and not those specified in Arts. 327 and → “Reason,” says Manresa, “tells us the child
329. concerned should not be more severe than
the spouse who has been offended.”
Q: In case of legal separation, there is always the • Note that the law say parents, therefore, it does
possibility of reconciliation. Similarly, in case of criminal not apply to other ascendants like the
conviction, there is always the possibility of absolute grandparents.
pardon. In such cases, there is a restoration of parental
authority. What will be the effect of such restoration to Art. 921. The following shall be sufficient causes for
the right to disinherit or to the disinheritance if it has disinheriting a spouse: LAFLPS
already been made? (1) When the spouse has been convicted of an attempt
A: against the Life of the testator, his or her descendants,
✓ One view maintains that there is no effect upon the or ascendants;
right to disinherit or upon the disinheritance if it has (2) When the spouse has Accused the testator of a crime
already been made, because the ground or basis for which the law prescribes imprisonment for six
for the disinheritance is not the loss of parental years or more, and the accusation has been found to be
authority, but the offense committed by the false;
offender. (3) When the spouse by Fraud, violence, intimidation, or
→ It is clear, therefore, that what the law allows undue influence causes the testator to make a will or to
the testator to punish is not the consequence change one already made;
of the offense, but the offense itself. Hence, (4) When the spouse has given cause for Legal
even if there is a restoration of parental separation;
authority brought about by absolute pardon or (5) When the spouse has given grounds for the loss of
by reconciliation of the spouses, although that Parental authority;
will have the effect of erasing the existence of (6) Unjustifiable refusal to Support the children or the
the offense as far as the State or the spouses other spouse.
are concerned, it cannot erase the
existence of the offense against the
Grounds for Disinheritance of Spouse
testator. Consequently, the ground for
Those stated in Nos. 1, 2, 3 and 6 are common grounds
disinheritance still exists.
for the disinheritance of any compulsory heir.
→ Of course, it must be noted that this
Consequently, what had been stated under Art. 919
conclusion is predicated upon the fact that
with regard to these grounds are also applicable here.
there is no reconciliation between the
offended and the offender, because,
(1) When the spouse has been convicted of an
otherwise, the provisions of Art. 922 shall
attempt against the life of the testator; his or her
apply.
descendants, or ascendants.
 Another view holds that the restoration of parental (2) When the spouse has accused the testator of a
authority would have the effect of depriving the crime for which the law prescribes imprisonment for
child or descendant of his right to disinherit the six years or more, and the accusation has been found
parent or ascendant or of rendering the to be groundless.
disinheritance ineffectual if it has already been
made, because the legal basis for disinheritance  it is not enough that there must be an acquittal
would no longer exist, since, it is admitted, that the based on reasonable doubt.
disinheritance can take effect only upon the death
of the testator.

✓ The law requires that the acquittal must be 2. A pardon not accepted by the disinherited heir.
based on the fact that the offense charged has 3. A pardon which does not specify the heir
not been committed. concerned nor the act which had been committed.
4. A pardon given by testator in the very same will
(3) When the spouse by fraud, violence, intimidation, wherein he provides for the disinheritance. Here,
or undue influence causes the testator to make a will there cannot be said to be a reconciliation, and
or to change one already made. restoration to the status quo; there only is a sort of
moral force or spiritual influence which forgives in
(4) When the spouse has given cause for legal the name of morality.
separation.
Effect of Subsequent Reconciliation
As it now stands, it is clear that by virtue of this (1) If no disinheritance has been made yet, no
provision, disinheritance can now be done.
• if the wife has committed adultery, or (2) Disinheritance already made is rendered
• if the husband has committed concubinage, INEFFECTUAL; in other words, it is as if there had
or been no disinheritance at all.
• if either of the spouses has made an attempt (3) If made before the act of disinheritance, it deprives
against the life of the other, the testator of the right to disinherit
the innocent spouse would be justified in disinheriting (4) If made after the act of disinheritance, it renders
the offending spouse. ineffective a disinheritance already made.
Thus, it has been held that CRIMINAL CONVICTION During that period between the execution of the will and
is not a condition sine qua non in order that the the death of the testator, it is always possible that the
wife can disinherit an unfaithful husband. The same testator may pardon the offender.
principle can also be applied to an attempt made by
one spouse against the life of the other. Such pardon, however, cannot have any possible
effect either upon the testator’s right to disinherit or
(5) When the spouse has given grounds for the loss of upon the disinheritance if it has already been made.
parental authority.
Under the law, before it can have any effect, it is
It must be observed that under this ground, the mere essential that it must have been accepted by the
fact that there is a ground for the loss of parental offender thus resulting in a reconciliation between the
authority is a sufficient cause for disinheritance, two. It is, therefore, clear that what the law requires is
a bilateral act and not a mere unilateral act.
whereas under No. 6 of Art. 920, in order that a child or
descendant can disinherit a parent or ascendant, it is Once there is a reconciliation between the offender and
essential that there must be an actual loss of parental the offended person, such reconciliation shall have the
authority. effect of depriving the latter of the right to disinherit the
former or of rendering ineffectual any disinheritance
(6) When the spouse refuses without justifiable cause that may have been made.
to support the children or the other spouse.
Rules In Case the Cause of the Disinheritance is
Art. 922. A subsequent reconciliation between the ALSO a Cause of Unworthiness:
offender and the offended person deprives the latter of • BASIS — There are grounds for disinheritance
the right to disinherit, and renders ineffectual any which are also causes of incapacity to succeed by
reason of unworthiness. Among them are the
disinheritance that may have been made.
abandonment of children, and the attempt to take
the life of the testator, etc.
Reconciliation
• If the cause of unworthiness was made a ground
= the mutual restoration of feelings to the status quo. for disinheritance and there is a reconciliation, Art.
= the resumption of friendly relations between the 922 will govern, and NOT Art. 1033. In other
offender (disinherited heir) and the offended words, the mere fact of reconciliation extinguishes
(testator). the unworthiness and NO written document is
needed for a condonation.
Characteristics of Reconciliation → Reason: A person is rendered unworthy to
Reconciliation needs no special form; therefore it may succeed only because the law presumes this
be express or implied. (Ultimately, this is a judicial to be the will of the testator. This presumed
question of fact). intent certainly cannot prevail over the
express will of a person shown by his act of
There is implied or presumed reconciliation if the reconciliation.
parties live again in the same house.
There is no reconciliation in the following instances: Q: T disinherited his child X for trying to kill him. X had
1. A general pardon usually given at the hour of been duly convicted. Later, T and X reconciled. T never
changed his will (where the disinheritance was made).
death to all who may have, in some way or
Neither did T make any written document condoning
another, offended the testator, unless there really
X’s offense. T then died. Will X inherit?
be a removal of hurt feelings.

A: Yes, in view of the reconciliation, despite the been entitled had he not been disinherited, and it is a
absence of a written condonation, since the cause for well-known principle of testamentary succession that
unworthiness had been made the ground for the right of representation can take place only in
disinheritance. the direct descending line, but never in the
• If the cause for unworthiness was NOT made the ascending.
ground for disinheritance, or there has been no
disinheritance at all, Art. 1033 will apply. Art. 1033 In this Art. 923, the right of representation extends only
says: “The causes of unworthiness shall be to the legitime. If the disinherited person had been
without effect if the testator had knowledge thereof given any legacy, devise, or part of the free disposal,
at the time he made the will, or if having known of same will go to the substitutes, if any (note that the
them subsequently, he should condone them in disinherited heir should not even receive any part of the
writing.” free disposal); if none, to the other heirs, legatees, or
devisees by accretion if proper; if accretion is not
How Disinheritance is Revoked proper, same should go to the legal heirs by intestacy.
Disinheritance is revoked by:
(1) subsequent reconciliation;
(2) the making of a new will making the disinherited
heir an instituted heir;
(3) revocation of the will containing the disinheritance;
(4) d isallowance of the will containing the
disinheritance.
The fact that a void will containing a disinheritance is

denied probate cannot be said to revoke a
disinheritance, for the simple reason that in such a
case, there never was a valid disinheritance. Hence,
there is really nothing to revoke.
Art. 923. The children and descendants of the person

disinherited shall take his or her place and shall
preserve the rights of compulsory heirs with respect to
the legitime; but the disinherited parent shall not have
the usufruct or administration of the property which
constitutes the legitime.
Effects of Disinheritance
The most important effect of disinheritance is of course
the deprivation of the compulsory heir who is
disinherited of any participation in the inheritance
including this legitime.
However, if the compulsory heir has children or

descendants of his own, such children or
descendants, according to Art. 923, shall take his
or her place and shall preserve his or her right with
respect to the legitime, although the disinherited
parents shall not have the usufruct or administration of
the property which constitutes the legitime.
Under the law, after the death of the testator, the

children and descendants of the disinherited heir shall
represent the latter with respect to the legitime.
It must be noted, however, that Art. 923 cannot be

applied to all cases in which the compulsory heir who
is disinherited has children or descendants of his own.
Although it appears to be of general application, yet it

is undeniable that it is applicable only if the
compulsory heir who is disinherited happens also
to be a child or descendant of the testator.
This is so, because, in reality, this article establishes or

recognizes a right on the part of the children or
descendants of the disinherited heir to represent the
latter with regard to the legitime to which he would have

Legacies and Devises Vice Dean Castillo-Taleon
SECTION 7 Thus, if, according to the law and the will of the
LEGACIES AND DEVISES testator, A, who is one of the compulsory heirs, is
entitled to P10,000 in his capacity as compulsory
Concept of Legacies and Devises heir and to P5,000 in his capacity as voluntary heir,
and he is charged with the obligation of paying
P10,000 to X, a third person, he can be held liable
LEGACIES DEVISES only for P5,000.
such legacy or devise
constitutes a charge
legatee is a person to a devisee is a person to
whom a gift of real
against the decedent’s
whom a gift of personal
property is given by property is given by estate.
virtue of a will, virtue of a will.
Therefore, the
a legacy is a A devise is a obligation must be
testamentary disposition testamentary disposition Will is silent
by virtue of which a by virtue of which a performed by the
person is called by the person is called by the executor or
testator to inherit an testator to inherit an
individual item of individual item of real administrator as
personal property property. decreed by the court
after the liquidation of
all claims against the
Art. 924. All things and rights which are within the estate
commerce of man may be bequeathed or devised.
Classification of Legacies and Devises According
Art. 925. A testator may charge with legacies and to the Person or Institution Burdened (Given the
devises not only his compulsory heirs but also the Duty of Giving)
legatees and devisees. Legacy proper — when the estate has the duty to give
the legacy.
The latter shall be liable for the charge only to the extent
Pre-legacy — when the duty is given to the estate but
of the value of the legacy or the devise received by them.
the gift is given to a specific heir or legatee.
The compulsory heirs shall not be liable for the charge
beyond the amount of the portion given them. Example: T in his will gave his car to S, his son. The
car is a pre-legacy.
Persons Charged With Legacies and Devises
The following may be expressly charged by the testator Examples of Sub-legacies or Sub-devises
with the payment or delivery of a legacy or devise: (1) duty is on the HEIR
(1) Any compulsory heir; “I hereby institute my only child C as heir. However, he
(2) any voluntary heir; must give a car worth P400,000 to L.” (The legacy of
(3) any legatee or devisee; and the car is called a sub-legacy.)
(4) the estate, represented by the executor or
administrator. (2) duty is on the LEGATEE or DEVISEE
“I hereby give my car to L, but I want L to give P500,000
If the will is silent with regard to the person who shall to X. The legacy of the car to L is an ordinary legacy;
pay or deliver the legacy or devise, it is clear that the but the legacy of the P500,000 to X is a sub-legacy,
obligation constitutes a charge or burden upon the having been imposed upon L.].
ESTATE OF THE TESTATOR.
NOTE:
Consequently, if there is an administration • A legatee who is bound to give a sub-legacy is
proceeding, the obligation will be performed by the liable only to the extent of the legacy given to him.
EXECUTOR OR ADMINISTRATOR; if there is none, it • A compulsory heir is bound to give a sub-legacy
will be performed by the HEIRS THEMSELVES only insofar as his legitime has not been impaired.
Extent of Liability
PERSON CHARGED Art. 926. When the testator charges one of the heirs with
WITH LIABILITY
EXTENT OF LIABILITY a legacy or devise, he alone shall be bound.
cannot be held liable
beyond the amount of Should he not charge anyone in particular, all shall be
Compulsory heir liable in the same proportion in which they may inherit.
the disposable portion
given him.
extend to the entire When Heirs Are Charged
Voluntary heir
share received by him Compulsory heirs charged with a sub-legacy are liable
extend to the entire in proportion not to how much each actually inherits,
Legatee
legacy received by him but only in proportion to their institution to the free
extend to the entire disposal.
Devisee
devisee received by him

Example: Estate = P1 million; A and B, legitimate there is also a warranty against hidden defects and
children, were instituted in this way: A to 3/5 and B to hidden encumbrances.
2/5. However, they were required to give F a legacy of
P50,000. How much should each contribute? Why? Example: An heir was ordered to give to A a legacy of
A: A was given P600,000 (P250,000 as legitime and a car. If the car given to A is lost by A through eviction
P350,000 as free portion); B was given P400,000 (as when its real owner defeats A in a court action) the
(P250,000 as legitime and P150,000 as free portion). heir is liable. Since the legacy was generic, the heir
Since their institution to the free portion is in the should have selected a car he could validly dispose of,
proportion of P350,000 to P150,000 (or 35 to 15), it and not a car belonging to another.
follows that of the P50,000 sub-legacy, A must give
P35,000 and B must give P15,000. Art. 929. If the testator, heir, or legatee owns only a part
of, or an interest in the thing bequeathed, the legacy or
Art. 927. If two or more heirs take possession of the devise shall be understood limited to such part or
estate, they shall be solidarily liable for the loss or interest, unless the testator expressly declares that he
destruction of a thing devised or bequeathed, even gives the thing in its entirety.
though only one of them should have been negligent.
Legacy of Things Belonging Partly to Strangers.
Solidary Liability of Heirs Who Take Possession General Rule: The presumption is that the testator
Example: A and B, heirs, took possession of the estate desires to bequeath or devise only that which belongs
of their deceased father and used the family car, which to him. Hence, if he bequeaths or devises a thing which
had been given as legacy to C. If through A’s belongs partly to him and partly to a third person, the
negligence, the car is destroyed, can C ask for legacy or devise shall be understood limited only to
reimbursement of the whole value of the car from B? the part or interest belonging to him.
A: Yes, the liability here is solidary. Of course, B can
later on demand reimbursement from A. The same rule is applied where the thing belongs partly
to the heir, legatee or devisee and partly to a third
person. The legacy or devise is limited only to the
Art. 928. The heir who is bound to deliver the legacy or part or interest belonging to such heir, legatee or
devise shall be liable in case of eviction, if the thing is devisee.
indeterminate and is indicated only by its kind.
Exception: When the testator expressly declares that
Liability for Eviction he bequeaths or devises the thing in its entirety.
✓ According to the above article, if the legacy or Requisites for the exception:
devise is INDETERMINATE OR GENERIC, the (1) an express declaration to that effect
HEIR who is charged with the payment or delivery appearing in the will itself; and
of the legacy or devise shall be liable in case of (2) knowledge on the part of the testator that the
eviction. thing belongs partly to a third person.
→ Hence, Art. 1548 of the Code, which provides → Such knowledge may be proved either
for warranty by the vendor of the thing sold in from the context of the will itself or from
case of eviction, shall apply. extrinsic evidence.
→ if the testator erroneously thought he
A thing is considered generic/indeterminate if it is not owned the whole thing, the legacy or
particularly designated or physically segregated from devise is void.
all other things belonging to the same class.
Effect of Partition
 However, if the legacy or devise is It may happen that subsequently the thing which is
DETERMINATE OR SPECIFIC, the heir who is bequeathed or devised is finally divided or partitioned
charged cannot be held liable in case of between the owners in common.
eviction.
→ The reason for this is that the heir, certainly, If the thing is physically divisible or convenient of
would not be at fault if the thing bequeathed division, the rules stated are still applicable.
or devised by the testator had a defective title.
It is different when the thing is indeterminate However, if the thing is physically indivisible or
because then the acquisition or choice shall inconvenient of division, the rules applicable shall
depend upon him. depend upon whether the thing is finally adjudicated to
the testator or to the other owner applying the
 If the legacy or devise is a burden not on the heir provisions of Arts. 929 and 930.
but on the ESTATE ITSELF, there is no warranty (1) TESTATOR: where the thing is adjudicated to the
against eviction, whether the legacy be specific testator, same rules apply
or generic, if there were court proceedings which (a) If what is bequeathed or devised by the
ordered the giving of such legacy or devise. testator is that part which belonged to him
→ Reason: In such a case, there was court before the partition, the legacy or devise still
approval. subsists without any change.
(b) If what is bequeathed or devised, however, is
NOTE: It is understood, notwithstanding the wording of the entire property, the whole property shall
the law, that in case of generic legacies or devises,

pass in its entirety to the legatee or devisee T had the naked ownership of land, the usufruct of
(apply Arts. 929 and 930) which was owned by U. In T’s will, he gave the naked
ownership of the land to D. On U’s death (and
(2) OTHER OWNER: when the thing is adjudicated to assuming T to be previously already dead), will
the other owner, the rules applicable shall depend complete ownership of the land go to D?
upon whether or not the testator has expressly A: Yes, because death generally extinguishes a
declared that he bequeaths or devises the usufruct, and full ownership reverts to the naked owner
property in its entirety.
(a) If he has not expressly declared that he
Legacy of Things belonging to Strangers
bequeaths or devises the property in its
Art. 930. The legacy or devise of a thing belonging to
entirety, the legacy or devise shall be without
another person is void, if the testator erroneously
effect (applying the provision of No. 2 of Art.
957, which declares that the alienation of the believed that the thing pertained to him. But if the thing
thing bequeathed or devised shall result in the bequeathed, though not belonging to the testator when
legal revocation of the legacy or devise) he made the will, afterwards becomes his, by whatever
(b) If he has expressly declared that he title, the disposition shall take effect.
bequeaths or devises the property in its
entirety and the property subsequently is Art. 931. If the testator orders that a thing belonging to
adjudicated to the other owner, the legacy or another be acquired in order that it be given to a legatee
devise shall be without effect only with respect or devisee, the heir upon whom the obligation is
to what had formerly belonged to him [Art. 957 imposed or the estate acquire it and give the same to the
(2)] legatee or devisee; but if the owner of the thing refuses
➔ However, the legacy or devise is still to alienate the same, or demands an excessive price
effective with respect to the part therefor, the heir of the estate shall only be obliged to
belonging to the owner or third person to give the just value of the thing.
whom the entire property was
adjudicated, again applying the It will be observed from a study of Arts. 930 and 931
provisions of Arts. 929 and 23. that the all-important factor in the determination of the
validity of a legacy or devise of a thing belonging to
Problems another is the KNOWLEDGE of the testator that the
T and A owned a Lincoln Towncar automobile 50-50. thing bequeathed or devised BELONGED TO
In his will, T wrote: “I hereby give the whole automobile ANOTHER at the time of the execution of the will.
to L even if I own only half of it.” Prior to T’s death, the
co-ownership ceased, and since the car is physically (1) If the testator erroneously believed that the
indivisible, the car was adjudicated to A, with T being thing belonged to him and not to another, the
reimbursed in money for his share. Subsequently, T legacy or devise is void.
died. Will L get ½ of the automobile, the whole
automobile, half its value, its whole value, or nothing? (2) On the other hand, if the testator knew that the
thing belonged to another, the legacy or
A: L will get half of the car. Reason: It is true that in devise is valid
consenting to be reimbursed his share, T in effect had → because it is presumed that his intention
alienated his share in the car to A, and thus revoked by is that such thing which is bequeathed or
operation of law the legacy insofar as his (T’s) original devised must be acquired either by the
share was concerned. (Art. 957[2]). However, executor or administrator of his estate or
inasmuch as he had expressly given the whole car to by the heir expressly charged with such
A, it follows that there is no revocation insofar as the obligation for the benefit of the legatee or
other half is concerned. Hence, L is entitled still to half devisee
of the car (A’s original half, not T’s original half). In other
words, L and A will now be the co-owners of the car, It is clear that, under the law, there are two instances
without prejudice to A collecting its half-value from T’s where the testator may be considered to have disposed
estate. of the thing with knowledge that it belongs to another.
They are:
T and A owned a car 50-50. T gave I in a will his (1) where he subsequently acquires the thing from
halfshare in the car. Before T’s death, partition the owner by whatever title; and
occurred, and since the car is physically indivisible, the
car was adjudicated to A who then reimbursed T for his NOTE: The acquisition by subsequent title is an
half-share’s value. On T’s death, will I get anything? example of an acquisition between the time of the
making of the will, and the testator’s death.
A: I will NOT get anything, in view of the alienation of
T’s half-share in the car to A. Neither can I recover the (2) where he expressly orders in his will that the thing
monetary value of the half-share in the car, for the shall be acquired in order that it be given to the
legacy was NOT money. T’s consent to the legatee or devisee [When Testator Orders the
adjudication of the car to A has the effect of an Acquisition]
alienation, which revokes a legacy by operation of law.
With respect to the second case, it must be observed
that the law expressly provides that either the heir upon

whom the obligation is imposed or the estate, i.e., the EXCEPTION: VALID – if the testator expressly
executor or administrator, must acquire it and give orders that the interest pertaining to another be
the same to the legatee or devisee. extinguished or paid, then the legacy or devise is
valid to the extent of that interest.
The “order” may be express or implied, since the law
does not distinguish. It may be implied because when ✓ The rule also applies even if the thing is
a testator, knowing of another’s ownership, gives the subsequently alienated by legatee or devisee
property to the legatee or devisee, we can presume to a third person
that he really wants the gift to be effective, and we can → The legacy/devise is not revived because it
infer that he desires the acquisition. was void at its inception. To hold otherwise
would be to permit the testator to play a
Example: In his will, T said, “I hereby give X’s car to Y.” grotesque joke in his dispositions mortis
(Note that even if this does NOT contain an express causa.
order to acquire, the order may be implied.) EXCEPTION: VALID – if the alienation is to the
testator himself and he continues in his
✓ In both instances, the disposition is valid. possession at the time of his death, the disposition
becomes valid.
If the OWNER refuses to alienate the same, or
demands an excessive price therefor, the heir or the ✓ The rule applies even if the legatee or devisee is
estate shall only be obliged to give the just value of a co-owner of the property given
the thing. • the disposition is void w/ respect to that
undivided interest w/c belongs to the legatee
Example [ART 930]: A testator gave X a legacy of a or devisee as such co-owner
specific car. The testator thought that the car belonged • if the co-owner is the testator, the disposition
to him (the testator) but it really belonged to Y. Is the is valid with respect to the undivided portion
legacy valid? belonging to him because it is his property.
A: The legacy is void. But if later on, the testator bought
the car from Y and it became his (the testator’s), the Examples of first paragraph
legacy would be valid. The latter case would be justified T gave L a particular car in his will. It turned out that at
since after all, the will becomes effective only at the the time T made the will, L was already the owner of
time the testator dies. the car referred to. On T’s death, L claimed the
monetary value of the car. Is L correct?
Example [ART 931]: T in his will said: “I hereby order
my estate to acquire X’s automobile so that same may A: No, because the legacy is void, since the car already
be given to Y.” This is a valid provision, and the belonged to him at the time of the execution of the will.
automobile should be acquired by the estate for
delivery to Y. If X refuses to sell, or if he demands an Reason for the law: One cannot be given what is
excessive price, all that Y can oblige the estate to give already his; moreover, we may presume that had the
to him would be the just value of the car. testator known of said fact, he would not have made
the gift. Upon the other hand, if the testator had
Art. 929 Art. 929 erroneously believed that the property was his (the
refers to a stranger who refers to property testator’s), the legacy would be clearly void under the
is a PARTIAL owner TOTALLY owned by a first sentence of Art. 930.
stranger
T gave D a parcel of land in his will. At the time T made
Art. 932. The legacy or devise of a thing which at the time his will, he and D were co-owners of the land
of the execution of the will already belonged to the concerned. When T dies, does D get anything?
legatee or devisee shall be ineffective, even though
another person may have some interest therein. A: Only the part appertaining to T will be inherited by
D. The part originally his continues to remain his, but
If the testator expressly orders that the thing be freed not by inheritance, for he was already the owner
thereof. Neither can he claim the monetary value of
from such interest or encumbrance, the legacy or
said part, for concerning said part, the legacy is void.
devise shall be valid to that extent.
Example of the 2nd Paragraph
Legacy of Things Belonging to Legatee
The legacy or devise referred to in the above articles is T in his will ordered that L’s car be freed from the
a legacy or devise in favor of the person to whom chattel mortgage encumbering it. Is the order valid?
the thing bequeathed or devised belongs. A: Yes.
The rule with regard to such legacy or devise is that it Art. 933. If the thing bequeathed belonged to the legatee
shall be INEFFECTIVE/VOID whether or not the or devisee at the time of the execution of the will. The
testator had knowledge of the fact. legacy or devise shall be without effect, even though it
✓ The rule applies even though another person may have been subsequently alienated by him.
may have some interest therein.

If the legatee or devisee acquires it gratuitously after A: Yes, he can be entitled to reimbursement for what
such time, he can claim nothing by virtue of the legacy or he had paid to B.
devise; but if it has been acquired by onerous title he can NOTE: Had the acquisition been gratuitous, L would
demand reimbursement from the heir or the estate. not have been entitled to get anything.].
NOTE also that the acquisition was only between the
Effect of acquisition by legatee time the will was executed and the time of the testator’s
(1) If the thing belonged to a third person at the time death. For had L already been the owner at the time
of the execution of the will the will was executed, the legacy should have been
In this case, the testator may or may not have any void
knowledge of the fact that the thing belonged to a third
person at the time when he executed his will. Acquisition From Testator Himself
If the acquisition by the legatee after the execution of
If he erroneously believed that the thing pertained to the will had been from the testator himself, would the
him, the legacy or devise is void. The subsequent legacy be void?
acquisition of the thing by the legatee or devisee A: No, while it is true that ordinarily an alienation by the
favored cannot have any effect upon such legacy or testator revokes the legacy, the exception is when the
devise. alienation is in favor of the legatee himself. Moreover,
since the law does not distinguish, the legatee would
However, if he had knowledge that the thing belonged still be entitled to reimbursement from the testator
to a third person, the second paragraph of Art. 933 is himself, if the acquisition was by onerous title.
applicable.
Problem: T in his will gave his car to L. Later, T sold the
Example for said clause: T in his will gave L the car of car to S who subsequently sold the same to L. L was
L. Later, L sold the car to X, and at T’s death, the car therefore owner by the time T died. Is L entitled to any
was still owned by X. Does L get anything from T’s reimbursement?
estate? A: No, because here the legacy had been revoked by
A: No, the legacy being ineffective and void, since the the alienation of the car to S. It does not matter that L
car belonged to L at the time of the execution of the subsequently acquired it from S by onerous title.
will. Its subsequent alienation is immaterial.
What To Reimburse
Problem: Suppose in the above example, L had bought In proper cases for reimbursement, the following
back the car from X for P300,000, and at the time of T’s should be reimbursed:
death, the car was again owned by L, is L entitled to • if thru a sale — the price paid therefor
get anything from the estate of T? • if thru barter — the value of the thing exchanged
A: No, for the important thing is that the car belonged
• if thru an onerous donation — the value of the
to L at the time of the execution of the will, and the
burden imposed
legacy is therefore void. The subsequent alienation and
• if thru adjudicacion en pago — the value of the
re-acquisition are immaterial. The 2nd paragraph of
credit, interests (if any), and costs (if any).
Art. 933 applies only when the legatee was not the
owner of the property at the time of the execution of the
NOTE: In general, expenses for the above are also to
will
be reimbursed.
(2) If the thing belonged to the testator at the time of Who Reimburses
the execution of the will • the estate — if no one has been charged in
In this case, the thing may be alienated by the testator particular
subsequently either to a third person or to the legatee
• the heir, legatee, or devisee — who has been
or devisee favored.
charged.
If the thing is alienated in favor of a third person, clearly
(3) If the thing belonged to the beneficiary at the time
the legacy or devise is revoked by express provision of
of the execution of the will:
Art. 957. Hence, the subsequently acquisition by the
Art 933 first paragraph applies
legatee or devisee cannot revive the legacy or devise.
If the thing is alienated in favor of the legatee or devisee Art. 934. If the testator should bequeath or devise
himself, there is no revocation. something pledged or mortgaged to secure a
recoverable debt before the execution of the will, the
If the acquisition by the legatee or devisee is by estate is obliged to pay the debt, unless the contrary
gratuitous title, the legacy or devise is also considered intention appears.
complied with.
The same rule applies when the thing is pledged or
If the acquisition is by onerous title, he is entitled to mortgaged after the execution of the will.
reimbursement.
Any other charge, perpetual or temporary, with which
T in his will gave L the car of B. Later, B sold the car to the thing bequeathed is burdened, passes with it to the
L who remained owner thereof till T’s death. Can L get legatee or devisee.
anything by virtue of the will?

Where the Thing Given is Burdened with Remedies of Mortgagee
Encumbrances What are the remedies of a mortgagee if the mortgaged
The estate must free the property given from: property is given as a devise to somebody by the
(1) Pledges testator?
(2) Mortgages A: The mortgagee has three alternative remedies:
(3) any other Encumbrance or lien (like antichresis), if (1) He can ABANDON his security (disregard the
given to secure or guarantee a recoverable debt. mortgage) and prosecute his claim for his now
unsecured credit be fore the probate court. He can
Note that the mortgage or pledge may have been then share in the general distribution of the estate
executed before or after the execution of the will. to the various creditors.
Exceptions: NOTE: Here, the mortgagee creditor naturally

(1) if there be a contrary intention loses preference, and he can claim only as an
(2) if the pledge or mortgage was given not to secure ordinary creditor.
a recoverable debt, but to secure, for example,
dutiful performance of the functions of a position or NOTE: When the estate has paid off this, and
office. other credits, the devisee can now get the property
unencumbered.
The estate need not free the property given from:
(1) leases which are in the nature of Personal rights (2) He can FORECLOSE the mortgage or realize
any other charge, perpetual or temporary, with upon the security by an ordinary action in court
which the thing bequeathed or devised is making the executor or administrator the party
burdened. defendant (at this stage, he DISREGARDS the
(2) Easements probate proceeding).
(3) leases which are Real rights (those for over one
year, or those which are registered, whether the (In case of a deficiency judgment, he can prove
lease be for more than one year or not) such deficiency judgment later in the probate court
(4) Usufructs against the estate of the deceased.).
NOTE: Such encumbrance must be respected by the (3) He can RELY on the mortgage ALONE and
legatee or the devisee. foreclose at any time within the statute of
limitations (10 years from date of maturity). In the
Problem: T in his will gave A a Cartier watch which he meantime, he will NOT receive any share in the
T had pledged in a pawnshop; B, a parcel of land that distribution of the other assets of the estate.
was mortgaged to X for P500,000; and C, another
parcel of land, the usufruct of which was being enjoyed NOTE: At any time however, the executor or
by Y. On T’s death, will A, B, and C get their gifts free administrator may redeem the property secured,
from the abovementioned encumbrances? under the direction of the court, if the court deems
A: The estate should pay for the pawnshop and this best for the interest of the estate.
mortgage debts, hence, A and B should get their gifts
unencumbered; but C must bear the burden of the Art. 935. The legacy of a credit against a third person or
usufruct until the usufruct is legally extinguished. (Art. of the remission or release of a debt of the legatee shall
934). be effective only as regards that part of the credit or
debt existing at the time of the death of the testator.
As a security for a debt
Where the purpose of the encumbrance incurred or In the first case, the estate shall comply with the legacy
imposed before or after the execution of the will is TO by assigning to the legatee all rights of action it may
SECURE THE PAYMENT OF A DEMANDABLE have against the debtor. In the second case, by giving
DEBT, the estate is obliged to pay the debt. the legatee an acquittance, should he request one.
The law presumes that the testator’s intention is for the In both cases, the legacy shall comprise all interests on
legatee or devisee to receive the property free from the the credit or debt which may be due the testator at the
encumbrance w/c exposes him to the danger of losing
time of his death.
the same.
If the legatee or devisee should pay the debt, he is Legacy of Credit or Remission
entitled to reimbursement from the heir or estate. Legacy of a Credit
EXAMPLE: T is D’s creditor to the amount of P1 million.
Not as security for a debt In his will, T gave this credit to L.
Where the purpose of the encumbrance is not to
secure payment of a demandable debt, then THE The legacy of a credit taken up in Art. 935, takes place
when the testator bequeaths to the legatee a credit
THING BEQUEATHED PASSES TO THE
LEGATEE/DEVISEE W/ SUCH CHARGE/BURDED which he has against a third person.
However, the burden must not be on the legitime and There are, therefore, three parties involved — the
testator-creditor, the legatee, and the debtor.
must not exceed the value of the property.

In this type of legacy, there is a NOVATION OF THE LEGACY OF CREDIT LEGACY OF
CREDIT by subrogating the legatee in the rights of the AGAINST A THIRD REMISSION OF A
original creditor but the credit itself is not extinguished. PERSON DEBT OF THE
LEGATEE
The executor or administrator may either assign the Nature
creditor’s actions to the legatee or himself collect the There is novation by the This is really a donation
credit. In the latter case, the proceeds should naturally subrogation of the new mortis causa, it may be
be delivered by him to the legatee. creditor but the credit reduced if inofficious. It
itself is not extinguished. has the effect of
If the executor or administrator chooses extinguishing the debt.
ASSIGNMENT, there is no warranty that the credit Extent
really exists or that it is legal. The legacy is effective only to the extent of the
→ Reason: This is merely in compliance with the amount of the credit/debt existing at the time of the
testator’s wishes about a specified credit. death of the testator with all the interests due at the
Therefore, the rule on specific legacies can apply. said time. Since the legatee acquires no right before
the death of the testator, the latter, during his
The legacy of a credit is effective only as regards that lifetime, does not lose his right to collect part of the
part still existing at the testator’s death, together of credit or debt.
course with all the interests still due. (Art. 935). Compliance
by the estate assigning As said debt has been
The legacy of a credit may be revoked by implication of to the legatee who has extinguished by virtue of
law in the case provided for under Art. 936. acquired by virtue of the the legacy, BY THE
legacy ownership estate giving the legatee
In the legacy of a credit, all guarantees whether thereof, all rights of an acquittance or
personal (like the obligation of a guarantor or a surety) action the estate may discharged should he
or real (like a pledge or a mortgage) are deemed have against the debtor. request one.
included.
Art. 936. The legacy referred to in the preceding article
Legacy of Remission or Release or Waiver of
Debts shall lapse if the testator, after having made it, should
EXAMPLE: T is L’s creditor to the amount of P1 million. bring an action against the debtor for the payment of his
In his will was remitted (waived or condoned) this debt debt, even if such payment should not have been
of L. effected at the time of his death.
The Civil Code distinguishes three different kinds of The legacy to the debtor of the thing pledged by him is
legacies of remission or release of debts. understood to discharge only the right of pledge.
(1) specific legacy for the remission of a definite
debt; Revocation of Legacy
(2) generic legacy for the remission of all debts of
the legatee existing at the time of the By Judicial Action
execution of the will; and Whether the legacy is of a credit against a third person
(3) legacy to the debtor of the thing pledged by or of a release or remission of a debt of the legatee,
him. such legacy shall be considered revoked (Art. 936 says
it shall lapse) if the testator, after having made it, shall
The legacy of remission or release of a definite debt of bring an action against the debtor for the payment of
the legatee, which is taken up in Art. 935, involves only his debt, even if such payment should not have been
two parties – the testator-creditor and the legatee- effected at the time of his death.
debtor.
The law expressly states “if the testator should bring an
This really amounts to a sort of donation mortis causa action against the debtor.” This must be construed to
and is therefore subject to the rule of inofficious mean a judicial action; hence, an extrajudicial demand
testamentary dispositions; that is, this may be reduced shall not be sufficient to revoke the legacy
if the legitime is impaired
It is the bringing of the action that revokes the legacy
The amount remitted should be added in the and not the payment of the debt.
computation of the testator’s net hereditary estate — → The testator, however, may provide that the legacy
for it is indeed part of his estate. shall not be considered as revoked. In such case,
the legacy shall be valid to the extent of the
The legacy of remission requires the estate to give the amount still unpaid at the time of his death.
legatee favored an acquittance (receipt or
acknowledgment of payment) should he request one. Effect of Action Against Debtor-Legatee
(2nd par., Art. 935). The first paragraph exemplifies a revocation by
implication of law.
Example: T gives his credit of P1,000,000 over D to L.

After the execution of the will, T brought an action

against D for the recovery of the debt. The bringing of Suppose several debts are remitted, should they all be
the action revokes T’s legacy. This is true, whether or given effect? Yes, unless the free portion is not
not by the time T dies, D shall have paid the debt. (For enough, in which case, the rules on application of
it is the BRINGING of the action that revokes, not the payments, should by analogy be applied.
PAYMENT itself).
Even if a credit has been converted into another kind
NOTE: It is permissible for the testator to provide that by novation, it is deemed included as long as it has not
his mere bringing of the action will not revoke the yet been paid, nor a judicial demand for it has been
legacy, insofar as the uncollected balance is made, at the time the testator dies.
concerned.
Art. 938. A legacy or devise made to a creditor shall not
NOTE: The first paragraph applies whether the legacy
be applied to his credit, unless the testator so expressly
be of a CREDIT or a REMISSION.
declares.
By Legacy of Security Given for Debt
the legacy to the debtor of the thing pledged has the In the latter case, the creditor shall have the right to
effect of discharging only the right of pledge. The debt collect the excess, if any, of the credit or of the legacy or
for the security of which the pledge was given remains. devise.
→ The reason is that the pledge merely an accessory
obligation to the debt w/c is the principal obligation. Legacy to Creditors
General Rule: a legacy or devise made to a creditor
If the principal obligation is remitted however, the shall not be applied to his credit.
accessory obligation (the pledge) is automatically → A legacy/devise is a gift, not a payment.
remitted — for its basis has disappeared Hence, the creditor-legatee/devisee may
demand the payment of his credit in addition
Although the law mentions only “pledge,” it is believed to his right to receive the legacy or devise.
that the rule can also refer to a mortgage, an
antichresis or any other security. Exception: when the testator expressly declares that
the legacy or devise must be applied to the credit.
Example: To T was pledged as security, a ring by L In this case, the creditor:
who owed T P1,000,000. T gave to L a legacy of the (1) shall have the right to collect the excess, if
ring. Is the debt of L extinguished? any, of the credit over the legacy or devise;
OR
A: No. Only the pledge has been extinguished. The (2) shall have the right to collect as legatee or
debt itself (the principal obligation) still remains, for devisee, the excess, if any, of the legacy or
same has not been remitted. devise, over his credit.
Example of 1st paragraph — A owes B P1,000,000. In

Art. 937. A generic legacy of release or remission of
his will, A gave B a legacy of P1,000,000. How much
debts comprises those existing at the time of the
will B get all in all? P2,000,000 unless the estate is
execution of the will, but not subsequent ones.
exhausted after the payment of debts. It must be noted
that a legacy or a devise is supposed to be a gift, not a
The generic legacy of remission or release of all debts payment. It is an act of liberality on the part of the
of the legatee, which is taken up in Art. 937, is not very testator, and not an obligation. A different rule of course
different from a specific legacy of remission with regard subsists when the testator expressly so declares.
to the rules which are applicable.
SPECIFIC = debt which is specifically mentioned in the Example of 2nd paragraph — A owes B P1,000,000.
will of the testator But C owes A P1,200,000. If A gives his credit of
P200,000 as a legacy to B, and expressly declares that
→ such release comprises only that part of the debt
the legacy should be applied to B’s credit, there will be
existing at the time of death of the testator is
payment of P1,000,000 and a true legacy of P200,000
covered.
for the balance.
GENERIC = when no particular debt is specified
→ such release comprises all debts existing at the Art. 939. If the testator orders the payment of what he
time of the execution of the will, but not believes he owes but does not in fact owe, the
subsequent ones. disposition shall be considered as not written. If as
→ If there are several debts condoned and the free regards a specified debt more than the amount thereof
part is not sufficient to cover them all, the rules on is ordered paid, the excess is not due unless a contrary
application of payment are applicable. intention appears.
Whether the legacy is specific or generic, the rule that The foregoing provisions are without prejudice to the
the legacy shall comprise only what is due the testator fulfillment of natural obligations.
at the time of his death shall apply.

Application of Rule on Solutio Indebiti If the heir, legatee, or devisee who may have been
The testator may order the payment of an amount upon designated to make the choice dies before he is able
the mistaken belief that he owned it: to make it, the right shall pass to his heirs.
(1) where no debt exists;
(2) where amount of legacy or devise exceeds If the right is given to the executor or administrator, it is
debts; transmitted to his successor to said position, no to his
(3) where debt is a natural obligation. heirs.
Example: A thinks he owes B P100,000. He really does Once the choice is made, it becomes irrevocable. The
not owe B anything, however. If A orders the payment legacy or devise will no longer be alternative, but
of the P100,000, the disposition is considered not simple.
written
NOTE:
Another Example: A thinks he owes B P100,000, but • When out of two or more things to be given, only
the debt is really P80,000 only. The P100,000 is one is possible, the legacy is converted into a
ordered paid in the will. B will not get the extra P20,000 simple one.
unless a contrary intention appears, because in the • The choice must be communicated to the
latter case, the intent is really to grant a legacy. recipient, after which communication the
alternative legacy becomes a simple one.
• Inasmuch as a choice is involved (although the
T owed L P100,000 but the debt has already
things to be given may have been specified), the
prescribed. Nevertheless, T, recognizing his moral
rules relating to generic legacies may be applied,
duties, ordered the payment of the P100,000, knowing
such as Arts. 941, 942, and 943.
that the debt had already prescribed. Will L get the
P100,000, even if the debt no longer exists?
Limitations:
A: Yes, for this is an instance of a natural obligation.
(1) The choice is limited to the things alternatively the
(Natural obligations are governed by Arts. 1423 to 1430
objects of the legacy or devise
of the Civil Code.)
(2) The party who has the right cannot choose those
legacies or devises which are impossible,
Art. 940. In alternative legacies or devises, the choice is unlawful, or which could not have been intended
presumed to be left to the heir upon whom the obligation by the testator
to give the legacy or devise may be imposed, or the (3) There is no more right of choice when among the
executor or administrator of the estate if no particular legacies or devises, only one is practicable
heir is so obliged. (4) If not one of them is feasible because of loss or
alienation, or for any lawful reason, the legacy or
If the heir, legatee or devisee, who may have been given devise becomes ineffective.
the choice, dies before making it, this right shall pass to
the respective heirs. Example: A orders B, a devisee, to give C a ring or a
car. B is given the right to choose. If B dies (before
Once made, the choice is irrevocable. making the choice, but after A’s death) the right to
make the choice is not considered personal and said
In alternative legacies or devises, except as herein right is, therefore, transmitted to B’s own heirs. Once
provided, the provisions of this Code regulating the choice has been made, it is irrevocable (because in
obligations of the same kind shall be observed, save such a case, the obligation has ceased to be
such modifications as may appear from the intention alternative, and has become a simple one) unless of
course there has been fraud, intimidation, or any of the
expressed by the testator.
other causes vitiating consent.
Alternative Legacies and Devises
Alternative legacies or devises refer to those where Art. 941. A legacy of generic personal property shall be
the testator bequeaths or devises two or more things valid even if there be no things of the same kind in the
but which can be complied with by the delivery of only estate.
one of them to the beneficiary.
A devise of indeterminate real property shall be valid
The most peculiar feature of this type of legacy or only if there be immovable property of its kind in the
devise is that a choice will have to be made upon the estate.
death of the testator before it can be complied with.
The right of choice shall belong to the executor or
The testator may designate any one of the heirs, administrator who shall comply with the legacy by the
legatees or devisees, or even the beneficiary delivery of a thing which is neither of inferior nor of
himself, to make the choice. superior quality.
If no particular person is designated, the right of choice Generic Legacy

pertains to the executor or administrator of the A generic legacy refers to a legacy consisting of
estate. personal property designated merely by its class or

genus without any particular designation or physical Examples
segregation from all others of the same class. “I hereby give to L one automobile.” This is valid even
if there be none in the estate. The executor or
Thus, if the testator, in his will, bequeaths “ten horses” administrator must obtain one of a middle quality.
to A, the legacy is generic. Even granting that there [NOTE: This is different from one contemplated in this
are no horses in the estate of the testator after his statement: “I hereby give to L one of my automobiles.”
death, the legacy is valid. The obligation in such a case It is evident here that an alternative legacy is being
can be complied with by the delivery to A of ten horses contemplated, for out of several automobiles in the
which must be neither of superior nor inferior quality. estate, a choice is to be made of one. Hence, if there
be NONE in the estate, the legacy is VOID. If there be
As in the case of alternative legacies, a choice must several, one of medium or middle quality must be
have to be made. The right of choice shall pertain to selected.
the person designated by the testator. Anyone of the
heirs, legatees, or devisees, or even the beneficiary “I hereby give to D 100 square meters of land.’’ If there
himself may be designated to make the choice. If the be no land in the estate, or if the area thereof be
heir, legatee or devisee cannot make the choice, his insufficient, the devise is considered void insofar as the
right shall pass to his own heirs. If no person is area is not sufficient.
designated to make the choice, the executor or NOTE: If there be several parcels of land in the estate,
administrator of the estate shall make it. Once made, and their individual or total areas be at least 100 square
the choice becomes irrevocable. In other words, the meters, the devise is no doubt valid.
legacy ceases to be generic; it becomes determinate. NOTE: The example above should not be confused
with this statement in a will: “I hereby give to D the 100
Generic Devises square meters of land owned by X.’’ Here the devise is
A generic devise refers to a devise consisting of real valid for evidently there is an implied order to get the
property designated merely by its class or genus said land from X. This is thus governed by Art. 931.
without any particular designation or physical
segregation from all others of the same class. Example of Void Legacies
“I hereby give to L some automobiles.’’ (Reason: The
Thus, if the testator devises five hectares of “rice lands” absence of quantity makes the true intent of the
or “sugar lands” to A, the devise is generic. testator unknown.
In such case, the same rules specified in the preceding “I hereby give to L an animal.’’ (Reason: While “animal’’
comments are applicable. is indeed a genus, still the sub-genus like “dog’’ or “cat’’
has not been specified, thus, the true intent of the
The law, however, declares that a devise of testator is still unknown.)
indeterminate real property shall be valid only if there
be immovable property of its kind in the estate of the What period of time must be considered in determining
testator. whether or not the property exists in the estate? (This
→ The reason for this is that, unlike personal is important in generic real properties.)
property, there is no such thing as a ANS.: The time of the testator’s death, for it is “his
predetermined species with respect to real or estate” to which the law refers. The time of the
immovable property, since its execution of the will is therefore not. Evidently, this is
individualization, depends exclusively upon not the same category as after-acquired properties.
the will of man.
→ Consequently, if the testator devises five
Right of Choice
hectares of rice lands to A, but after his death
The right of choice is given to the estate or to the
it is found out that his estate consists entirely
person BURDENED, unless such right is expressly
of fish ponds, it is clear that, under the law, the
given to the person favored. This is the same as the
devise is void.
rule in alternative obligations.
GENERIC PERSONAL GENERIC REAL When the right to choose is given to the estate
PROPERTY PROPERTY (executor or administrator) such right is NOT
valid even if there be not valid if there be none ABSOLUTE, for certain restrictions must be observed:
none in the estate. of its kind in the estate. (1) the choice must be “neither of inferior nor superior
(Here, it is evident that quality.” (Hence, the medium quality must be
the estate is being selected.).
required to get one.) [NOTE: It seems that this restriction is not imposed
when it is the heir (or the legatee or devisee
Reason for the difference: charged) who is supposed to make the selection.
The genus in personal property is determined by Note the wording of Art. 942.].
nature; in the case of real property, there is
practically no genus because each property has (2) in the case of generic personal legacies, if there
been practically individualized by the efforts of man. be some in the estate, the person charged must
select from them, and not from those outside the
estate.

Art. 942. Whenever the testator expressly leaves the Legacy for Education or Support
right of choice to the heir, or to the legatee or devisee, The amount of the legacy, whether for education or for
the former may give or the latter may choose whichever support, shall depend upon the testator.
he may prefer. If the amount is not fixed, it shall be fixed in accordance
with the circumstances and social standing of the
legatee and the value of the estate.
When Right of Choice is Given to Others
• When the testator does not state who can choose,
The only limitation is that the legacy must not impair the
the giver has the right to do so.
legitime of compulsory heirs. True, the testator can fix
• Art. 942 applies only when the right of choice is the amount but this should not exceed the disposable
expressly given to one by the testator himself. portion.
• “Legatee or devisee” in this Article refers to the
legatee or devisee favored (not to the legatee or The last paragraph particularizes the criterion to be
devisee charged). Of course, the legatee or followed in case the testator did not fix the amount of
devisee charged may be given the choice in the the legacy, if during his lifetime he had been in the habit
case of a sub-legacy or a sub-devise. of giving the legatee by way of support a certain sum
• The things selected need not be of medium of money. The law provides that in such case, the same
quality. amount shall be deemed bequeathed, unless it be
• Once the selection or choice has been made, it is markedly disproportionate to the value of the estate.
irrevocable except for the usual causes vitiating
consent. The legacy for education may be for a shorter period
• How is the choice made? In any way which clearly than that given by the law, despite the lack of an
reveals the conscious and deliberate exercise of express provision on that matter.
the right of choice.
The proviso [“provided he pursues his course
Art. 943. If the heir, legatee or devisee cannot make the diligently”] prevents the legatee from extending the
choice, in case it has been granted him, his right shall duration of the legacy by deliberately delaying his
pass to his heirs; but a choice once made shall be studies.
irrevocable.
A legacy for support lasts during the lifetime of the
When Choice is Passed to Recipient’s Heirs legatee.
• In the clause “his right shall pass to his heirs,”
“heirs” are the heirs of the person allowed to make The diligence required in pursuing the course is a
the selection, whether they be heirs of the person judicial question.
burdened or of the person favored except, of
course, in the case of an executor or administrator. Both legacies for support and education are ordinarily
Here, the successor to said position must make personal, and cannot therefore be transmitted unless
the choice. of course the testator has ordered otherwise.
• The right to choose may, of course, be renounced,
provided all the requisites for the waiver of a right In case the successor to the legatee is specified clearly
are present. by the testator, it is believed that the restrictions on the
fideicommissary substitution may be followed by
• The choosing may even be embodied in a will of
analogy so as not to make the legacy very
the person entitled to make the choice. When so
burdensome.
made, it is irrevocable, even if the will itself is
revocable. (Note that the rule is the same in the
Legacies of education and support are personal in
case of the recognition of an illegitimate child.)
nature and are not transmitted to the heirs of the
recipient. The testator, of course, may provide
Art. 944. A legacy for education lasts until the legatee is otherwise.
of age, or beyond the age of majority in order that the
legatee may finish some professional, vocational or
Art. 945. If a periodical pension, or a certain annual,
general course, provided he pursues his course,
monthly, or weekly amount is bequeathed, the legatee
provided he pursues his course diligently.
may petition the court for the first installment upon the
death of the testator, and for the following ones which
A legacy for support lasts during the lifetime of the
shall be due at the beginning of each period; such
legatee, if the testator has not otherwise provided. If the
payment shall not be returned, even though the legatee
testator has not fixed the amount of such legacies, it
should die before the expiration of the period which has
shall be fixed in accordance with the social standing and
commenced.
the circumstances of the legatee and the value of the
estate.
The Giving of Pensions
FIRST INSTALLMENT: Note that the law says “the
If the testator during his lifetime used to give the legatee legatee (of the pension) may petition the court for the
a certain sum of money or other things by way of first installment upon the death of the testator.” It is
support, the same amount shall be deemed submitted that he should first wait until an order for
bequeathed, unless it be markedly disproportionate to distribution has been made by the court, or until
the value of the estate. distribution is actually made (if there be no such

order), for after all, the estate’s debts must first be paid. if acquired from from the moment of such
(See Rule 90, Sec. 1, Rules of Court). a stranger by acquisition
SUBSEQUENT INSTALLMENTS: they are paid in virtue of an order
advance upon the beginning of each period, whether (express or
annual, monthly, or weekly. implied) by the
testator
INSTALLMENT IN ARREARS: support in arrears (from
the time of death) should logically be given, since this Note that the law refers to gifts that are “pure and
seems to be the clear intent of the law (“upon the death simple.” If conditional, when does the right to the legacy
of the testator”). or devise vest (as distinguished from the right to the
property itself)?
NOTE however, that in legacies of money not intended
for support or for education — interest thereon accrues A: From the moment of death also, provided that the
only from the date of judicial demand. condition is fulfilled.
Art. 946. If the thing bequeathed should be subject to a Rules in Case of Gifts With a Term
usufruct, the legatee or devisee shall respect such right If the gift is with a SUSPENSIVE TERM, the right also
until it is legally extinguished. vests from the moment of the testator’s death, although
of course, it does not become effective until after the
Gift Involving a Usufruct arrival of the suspensive term.
• The gift is burdened by the presence of an existing
and lawful usufruct (as well as easement, etc.). If the gift is with a RESOLUTORY TERM, the right also
• This Article is connected with Art. 934, last vests from the moment of the testator’s death, but will
paragraph [Any other charge, perpetual or END when the resolutory term arrives.
temporary, with which the thing bequeathed is
burdened, passes with it to the legatee or devisee.] When No Transmission Occurs: Please remember
that a VOLUNTARY heir, legatee, or devisee who
How Usufruct is Extinguished predeceases the testator, or who is incapacitated, or
(1) By the death of usufructuary, unless a contrary who repudiates, transmits no right to his own heirs.
intention clearly appears; (See Art. 866).
(2) By the expiration of the period for which it was
constituted or by the fulfillment of any resolutory LEGACIES/DEVISES with SUSPENSIVE TERM and
condition provided in the title creating the usufruct; CONDITION
(3) By merger of the usufruct and ownership in the In such legacies or devises, what is suspended by the
same person; term or period is not the acquisition of the right but
(4) By renunciation of the usufructuary; merely the demandability of the right.
(5) By the total loss of the things in usufruct;
(6) By the termination of the right of the person Consequently, even if the legatee or devisee, after the
constituting the usufruct; death of the testator, dies before the expiration of the
(7) By prescription. (Art. 603, Civil Code). term or period, he can transmit his rights to his own
heirs.
Art. 947. The legatee or devisee acquires a right to the
In the case of conditional legacies or devises, however,
pure and simple legacies or devises from the death of
if the condition is suspensive, what is acquired upon
the testator and transmits it to his heirs. the death of the testator by the legatee or devisee is
only a mere hope or expectancy. Such hope or
When Right is Transmitted expectancy is converted into a perfected right only from
The rule stated in the above article is merely a the moment of the fulfillment of the condition.
restatement of the general principle declared in Art. Consequently, if the legatee or devisee, after the death
777 of the Code to the effect that the rights to the of the testator, dies before the fulfillment of the
succession are transmitted at the moment of the death condition, he cannot transmit his expectancy to his own
of the decedent. heirs.
This Article speaks of the right to the legacy or devise,
Art. 948. If the legacy or devise is of a specific and
as becoming vested as of the moment of the testator’s
determinate thing pertaining to the testator, the legatee
death.
or devisee acquires the ownership thereof upon the
However, the right to the property itself is vested as death of the testator, as well as any growing fruits, or
follows: unborn offspring of animals, or uncollected income; but
if specific from the testator’s death not the income which was due and unpaid before the
if generic from the time a selection has latter’s death.
been made, so as to make the
property specific From the moment of the testator’s death the thing
if alternative from the time the choice has bequeathed shall be at the risk of the legatee or devisee,
been made who shall, therefore, bear its loss or deterioration, and
shall be benefited by its increase or improvement,

without prejudice to the responsibility of the executor Applicability of Art. 948
or administrator. Art. 948 applies to:
(1) simple and pure legacies and devises
Art. 949. If the bequest should not be of a specific and (2) those with resolutory conditions, without prejudice
determinate thing, but is generic or of quantity, its fruits to the effects of resolution
and interests from the time of the death of the testator NOTE:
shall pertain to the legatee or devisee if the testator has • In case of suspensive condition, while the right
expressly so ordered. becomes effective only upon the happening of the
suspensive condition, still in view of the retroactive
effect of the condition once it is fulfilled, it is
Transmission of Right of Ownership
believed that ownership also vests at the testator’s
Arts. 948 and 949 Art. 947
death.
refer to the moment refers to the moment
• In case of a suspensive term, the right is owned
when the legatee or when the legatee or
from the time of the testator’s death, but the
devisee becomes the devisee acquires a right
property itself is owned only from the time the
owner of the thing which to the legacy or devise
suspensive term arrives
is bequeathed or
devised, depending
In Determinate Legacies or Devises
upon whether the legacy
The rule stated in Art. 948 springs logically from the
or devise is determinate
general principle enunciated in Art. 777 of the Code. It
or generic
is, however, essential before the legatee or devisee
can acquire ownership of the thing bequeathed or
When Ownership of Legacy or Devise is Acquired
devised upon the death of the testator that the thing is
From the moment of testator’s death, the legatee or
determinate and that the legacy or devise is pure
devisee [if capacitated and accepts] acquires
and simple.
ownership of:
(1) the property bequeathed or devised;
 If the legacy or devise is subject to a suspensive
(2) growing fruits (natural and industrial fruits)
term or period or to a suspensive condition, the
→ not those already gathered even if they are rule cannot be applied.
still on the estate
→ If there is a term, the legatee or devisee
(3) unborn offspring of animals
becomes the owner of the thing bequeathed
(4) uncollected income (civil fruits)
or devised only upon the expiration of the term
→ which have accrued after the testator’s death or period;
→ but not those due and unpaid before the → if there is a condition, only upon the fulfillment
testator’s death, and if paid after the testator’s of the condition.
death, they shall pertain to the estate
Hence, if the legacy or devise is pure and simple, from
Expenses for Production the moment of the testator’s death, the thing
Expenses for PRODUCTION of the growing fruits bequeathed or devised shall be at the risk of the
are not charged to the grantee, for the law does not legatee or devisee, who shall, therefore, bear its loss
provide this; moreover the general provision in the law or deterioration, and shall be benefited by its increase
of possession and accession does not apply with or improvement, without prejudice to the responsibility
reference to this matter, for the testator is not a third of the executor or administrator.
person, insofar as the recipient is concerned.
This is an application of the principle that the thing
 There are no expenses for growing crops, for they perishes for its owner. However, if such loss or
are still growing, that is, still not gathered. deterioration of the thing is through the fault or
negligence of the executor or administrator, the latter
Risk of Loss and Benefit of Improvement can be held liable for damages.
As a consequence of ownership from the time the
testator dies, loss and deterioration shall be at the In Generic Legacies and Devises
grantee’s risk (res perit domino). If the legacy or devise is generic (or alternative), there
is a right of choice governed by the provisions of Arts.
This is so even if the property has not yet been 941 to 943 of the Code. Once the choice or selection
delivered. For it is not tradition (delivery) that transfers has been made in accordance with these provisions,
ownership here but succession. the legacy or devise ceases to be generic; it becomes
a pure and simple legacy or devise. It will be only then
Of course, any damage imputable to the executor, that the legatee or devisee can be considered as the
administrator, or person charged should be the owner of the thing which is chosen or selected.
responsibility of such person.
Consequently, from that very moment, the legatee or
Conversely, any increase or improvement goes to the devisee shall be entitled to all of the fruits and interests
recipient, in view of his ownership, without prejudice to of the thing, unless the testator has expressly ordered
the rights of innocent third persons. in his will that such fruits and interests shall pertain to
the legatee or devisee from the moment of his death.

Generic Gifts (1) When there are no compulsory heirs and the
Since the recipient will not know definitely what he will entire estate is distributed by the testator as
receive until after a selection or choice has been made, legacies or devises; or
it follows that he is entitled to the fruits only from the (2) When there are compulsory heirs, but their
time such CHOICE has been made — for it is only after legitime has already been provided for by the
such choice that the obligation to deliver the gift to him testator and there are no donations inter
arises. vivos.
By way of EXCEPTION, the testator may expressly Rule Under the Code of Civil Procedure
order that the fruits and interests of the generic thing Under Sec. 729 of the Code of Civil Procedure (which
shall be payable from the time of his death. section has not been repealed by the new Civil Code),
→ NOTE: Here, there is a sort of retroactive effect, “the estate, real or personal, given by will to the
for it is evident that a choice can be made only devisees or legatees shall be liable for the payment of
after the testator’s death. the debts, expenses of administrations, and family
expenses, in proportion to the amount of the several
Liability of Fruits for Debts devises or legacies, except that specific devises and
One fact, however, must be borne in mind, namely, that legacies may be exempted, if it appears to the court
even if the fruits have accrued only since the choice necessary to carry into effect, the intention of the
was made, still said fruits before being turned over to testator and if there be sufficient other estate.” Now
the devisee, must first be responsible for the payment then, how does this provision affect Art. 950 insofar as
of whatever debts and expenses there are, that are the reduction of legacies and devises are concerned?
chargeable to the estate. This is because the net A: There is no inconsistency between the two cited
hereditary estate must first be computed provisions of law.
(1) First apply the Code of Civil Procedure to find out
Rule in Case of Money how much the gifts must be reduced in order to
Money is generic, and it has been held that interest settle the debts, etc.
thereon at six per cent per annum may be recovered (2) Then apply Art. 950 of the new Civil Code to find
from the time there is default in the delivery of the out which gifts must be reduced, in order to
money legacy. And there is default, once demand is accommodate all of them in the free disposal
made
It is evident that the Code of Civil Procedure does not
Art. 950. If the estate should not be sufficient to cover all apply if:
the legacies or devises, their payment shall be made in (1) there are NO debts, administration and family
the following order: expenses
(1) Remuneratory legacies or devises; (2) OR if the testator himself has indicated which of
(2) Legacies or devises declared by the testator to be his different properties will answer for said debts
preferential; and expenses.
(3) Legacies for support;
(4) Legacies for education; [NOTE: It is evident too that if the legitime is to be
preserved, then in the proper cases, Art. 911 and not
(5) Legacies or devises of a specific, determinate thing
Art. 950 should be applied.].
which forms a part of the estate;
(6) All others pro rata.
Remuneratory Legacies or Devises
= Those which the testator gives because he feels
Order of Payment of Legacies and Devises
morally obliged to compensate certain persons, for
The order of payment of legacies and devises which is
services which do not however constitute
specified in the above article should be distinguished
recoverable debts.
from the rule stated in Art. 911 of the Code regarding
the pro rata reduction of legacies and devises.
Q: Why are remuneratory gifts first in the order of
Art. 911 applies in the following cases: preference?
(1) When the reduction is necessary to preserve the A: Because they are considered moral (not natural)
legitime of compulsory heirs from impairment, obligations by the testator.
whether there are donations inter vivos or not; and
(2) when, although the legitime has been preserved Q: To make the bequest “remuneratory,” does said fact
by the testator himself by leaving the compulsory have to be stated in the will?
heirs sufficient property to cover their legitime, A: Not necessarily. It is of course better to so state them
there are donations inter vivos concurring with the in the will, but evidence on this point may be given
legacies and devises within the free portion. extrinsically
In all other cases not included within the scope of Art. Legacies for Support and Education
911, Art. 950 applies. More specifically, Art. 950 Observe that while under Art. 950, legacies for support
applies in all cases where the conflict is exclusively are considered distinct from legacies for education,
among the legatees or devisees themselves. education is included by Art. 290 within the concept of
This is possible in either of two cases: support. Insofar as Art. 950 is concerned however, the
distinction between the two must be observed.

Preferential Legacies or Devises Delivery of the Gift
They shall not be reduced unless necessary to If the grantee accepts a legacy other than the property
preserve the legitimes and the donations inter vivos. specified, or other than money, this is all right.
SPECIFIC THING: if the legacy/devise is a specific
Specific Things thing, the person obliged to deliver must deliver that
They are given preference over all others because by very thing, and he may not deliver a different one
specifying the thing given, the testator expresses his although the latter may be of the same value or more
desire that the legatee or devisee should have it. valuable.
Note that the thing must form part of the estate; MONEY: if the legacy is money, he must pay it in cash.
otherwise, the legacy will fall under Art 950(6). If there be no cash, he must sell personal property. If
there is no personal property or is insufficient, he must
Specific legacies which do not form part of the estate sell real property to pay the legacy.
are taken out of the scope of preference given to Art.
950(5) over Art. 950(6). Expenses for delivery/payment of thing
bequeathed
Example of such specific legacy not forming part of If delivery is VOLUNTARY, expenses necessary for
estate — when the testator orders that a specific thing the delivery shall be borne by the heir or estate, being
belonging to a stranger be acquired in order that he the debtor, but such expenses must not impair the
may give it as a legacy to another. legitime.
Reason for the non-preference: In the example given, If delivery is by JUDICIAL PROCEEDS, the court will
for instance, what is really being bequeathed is not so determine who should pay the necessary expenses for
much the specific property itself as its monetary value, such delivery, for the provision contemplates merely a
for as has been previously stated, the real owner may case of voluntary delivery. This is evident because if
refuse to part with the property, or demand an the courts are invoked, somebody else may be at fault.
unreasonable price therefor.
Art. 953. The legatee or devisee cannot take possession
Art. 951. The thing bequeathed shall be delivered with all of the thing bequeathed upon his own authority, but
its accessions and accessories and in the condition in shall request its delivery and possession of the heir
which it may be upon the death of the testator. charged with the legacy or devise, or of the executor or
administrator of the estate should he be authorized by
“Accessions” the court to deliver it.
= are fruits (natural, industrial, civil) of, or additions
to, or improvements upon, a principal thing Necessity of Making Request for Delivery
= ex. House, trees on land, rents of a building, While ownership and possession are transmitted
airconditioner in a car indeed from the testator’s death, still actual delivery
and possession will have to wait till the formalities
“Accessories” required under this Article are complied with.
= are things joined to, or included with, the principal
thing for the latter’s embellishment, better use, or The legatee/devisee cannot, upon his own authority,
completion take possession of the property bequeathed or devised
= ex. key of a house, frame of a picture, machineries in his favor. He must request its delivery and
of a factory possession from the heir who is charged with the
legacy or devise.
While ACCESSIONS are not necessary to the principal
thing, the ACCESSORIES and the principal thing must When Order for Distribution of Residue is Made;
go together. Testimony Taken on Controversy Preserved
When the debts, funeral charges, and expenses of
However, BOTH presupposes the existence of the administration, the allowances to the widow, and
principal thing. w/o the principal thing, there are no inheritance tax, if any, chargeable to the estate in
more accessions and accessories that can be accordance with law, have been paid
delivered.
the court, on the application of the executor or
Art. 952. The heir, charged with a legacy or devise, or the administrator, or of a person interested in the estate,
executor or administrator of the estate, must deliver and after hearing upon notice, shall assign the residue
the very thing bequeathed if he is able to do so and of the estate to the persons entitled to the same,
naming them and the proportions, or parts, to which
cannot discharge this obligation by paying its value.
each is entitled,
Legacies of money must be paid in cash, even though
and such person may demand and recover their
the heir or the estate may not have any. respective shares from the executor or administrator,
or any other person having the same in his possession.
The expenses necessary for the delivery of the thing
bequeathed shall be for the account of the heir or the If there is a controversy before the court as to who are
estate, but without prejudice to the legitime. the lawful heirs of the deceased person or as to the

distributive share to which each person is entitled Art. 955. The legatee or devisee of two legacies or
under the law, the testimony as to such controversy devises, one of which is onerous, cannot renounce the
shall be taken in writing by the judge, under oath. onerous one and accept the other. If both are onerous or
No distribution shall be allowed until the payment of the gratuitous, he shall be free to accept or renounce both,
obligations above mentioned has been made or or to renounce either. But if the testator intended that
provided for, unless the distributees, or any of them, the two legacies or devises should be inseparable from
give a bond, in a sum to be fixed by the court,
each other, the legatee or devisee must either accept or
conditioned for the payment of said obligations within
renounce both.
such time as the court directs.
[NOTE: The quoted provision must be complied with Any compulsory heir who is at the same time a legatee
should there be administration proceedings.]. or devisee may waive the inheritance and accept the
legacy or devise, or renounce the latter and accept the
former, or waive or accept both.
Art. 954. The legatee or devisee cannot accept a part of
the legacy or devise and repudiate the other, if the latter
Acceptance and Repudiation of Not All the
be onerous.
Legacies or Devises
ART 954 ART 955
Should he die before having accepted the legacy or
There is only 1 There are 2 or more
devise, leaving several heirs, some of the latter may
legacy/devise which is legacies or devises, one
accept and the others may repudiate the share
partly burdened with a of which is gratuitous
respectively belonging to them in the legacy or devise.
charge or condition and the other is more
onerous, or both are
Partial Acceptance and Repudiation of a Legacy gratuitous or onerous
or Devise The legatee or devisee is one and the same
The legatee or devisee cannot partially accept the person
gratuitous part and repudiate the other.
→ Reason: the presumed intent of the testator is for
Example of the 1st paragraph: A in his will gave to B a
him either to accept or repudiate the entire
car and a house, the house being given with a
bequest – that he will not give the former, w/o the
condition. In the same will, C was given a diamond ring
latter.
and a piece of land, to each of which was attached a
condition. B is not allowed to renounce the house and
If the legatee or devisee should die after the testator
at the same time accept the car. C is allowed to accept
but before accepting, his right is transmitted to his
both the ring and the land; or to renounce the land and
heirs. His heirs then may individually accept or
accept the ring; or to renounce the ring and accept the
repudiate the shares respectively belonging to them in
land. But of course if A intended that the ring and the
the legacy or devise but they shall share pro rata in the
land be inseparable from each other, C must either
burdens and benefits.
accept both or renounce both. This intent of the
testator, to be given effect must appear in the will,
Example of 1st par. — X was given a devise of a house either expressly or impliedly, from the context.
with the stipulation that the lower story was being given [NOTE: A compulsory heir was given both his legitime
gratuitously, but the upper story would be given on and a legacy. May he accept the legacy and refuse the
condition that X would not marry Y. X is not allowed to legitime?
accept the lower story, and renounce the upper one ANS.: Yes, by express provision of the law.].
since the latter is onerous. The reason for the law is the
presumption that the testator would not have given the
devise of the gratuitous lower story without the onerous Art. 956. If the legatee or devisee cannot or is unwilling
upper story. to accept the legacy or devise, or if the legacy or devise
for any reason should become ineffective, it shall be
merged into the mass of the estate, except in cases of
Example of the 2nd par. — In the preceding example,
if X dies before being able to accept, and he leaves two substitution and of the right of accretion.
heirs, A and B, each may accept or repudiate his share.
Effect of Ineffective Legacies or Devises
The death referred to in the 2nd paragraph must come There are three cases or situations contemplated by
after the death of the testator and not before, because the above article:
a voluntary heir or legatee or devisee who dies before (1) In the first place, the legatee or devisee may be
the testator transmits nothing to his heirs incapacitated to succeed the testator in
accordance with the rules laid down in Arts. 1024
Indivisible Gifts to 1040 of the Code;
Should the burden on the onerous legacy or devise be (2) In the second place, he may repudiate the legacy
INDIVISIBLE, same must be totally, complied with by or devise which is his perfect right in accordance
those heirs of the legatee (who died after the testator with the rules stated in Arts. 1041 to 1057;
but before making an acceptance), who want to accept. (3) In the third place, the legacy or devise may
This is not a case when there can be only proportionate become ineffective for some reason such as
compliance in view of the indivisible character of the transformation, alienation or destruction of the
burden.

object, or the non-fulfillment of a suspensive, (3) If the thing bequeathed is totally lost during the
condition. lifetime of the testator, or after his death without the
heir’s fault. Nevertheless, the person obliged to pay the
In all of these cases, the legacy or devise shall be legacy of devise shall be liable for eviction if the thing
merged with the mass of the hereditary estate, bequeathed should not have been determinate as to its
except in cases of substitution or accretion. kind, in accordance with the provisions of Article 928.
Effect of Incapacity or Repudiation Revocation of Legacies and Devises
In case of incapacity or repudiation or in case it The different causes for the revocation of legacies and
becomes ineffective, the legacy or the devise will devises enumerated in the above article are examples
descend by intestate succession unless there is of what is known as revocation by “implication of
substitution or accretion law” within the meaning of No. 1 of Art. 830 of the
Code. They take effect automatically and by operation
Example: A has a brother B but made C, a friend, a of law.
legatee. C has a child D. If C repudiates the legacy, D
will not inherit it because in case of repudiation, there The enumeration, however, is not complete. We can
is no right of representation. Moreover, a legatee or add as a fourth cause or ground the act of the testator
voluntary heir cannot be represented. There being no in bringing an action against the debtor for
substitute and there being no accretion under the facts payment of the debt as applied to legacies of a
presented, the legacy will be merged into the mass of credit or of remission of a debt. Under Art. 936, such
the estate, and will therefore go to B, who is the nearest an action will also have the effect of revoking the
intestate heir. legacy.
Accretion is a right by virtue of which, when two or Revocation by Transformation

more persons are called to the same inheritance, It is essential, therefore, that the transformation must
devise, or legacy, the part assigned to the one who be both with respect to the form and denomination.
renounces or cannot receive his share, or who died
before the testator, is added or incorporated to that of  Transformation with respect to the form only but
his co-heirs, co-devisees or co-legatees. (Art. 1015). not with respect to the denomination is not
sufficient.
In order that the right of accretion may take place in a  Neither is transformation with respect to the
testamentary succession, it shall be necessary: denomination but not with respect to the form.
(1) that two or more persons be called to the
same inheritance, or to the same portion The form refers to the external appearance (color,
thereof, pro-indiviso; and shape) of the thing bequeathed or devised; the
(2) that one of the persons thus called die before denomination refers to the name by which the thing is
the testator, or renounce the inheritance, or known (nature and class).
be incapacitated to receive it. (Art. 1016).].
Thus, if the thing devised is a parcel of rice land, and
ISRAI subsequently, the testator transforms it into a fish pond,
Institution, Substitution, Representation, Accretion, there is an implied revocation of the devise.
Intestacy.
However, if there is a mere enlargement or a mere
Rule: Apply Institution if proper; if not, apply incorporation of the thing to another — so that there is
Substitution if proper; if not, apply Representation if no change in either form or denomination, there can be
proper; if not, apply Accretion if proper; if not, apply no revocation. In the latter case, the rule of accession
Intestacy. shall apply.
[NOTE: In case of a legacy or a devise instead of an ✓ It must also be noted that the transformation of the
institution of heir, the word “Bequest” can replace the object must have been made by the testator
word “Institution” in the above-mentioned formula.]. himself or by some other person acting for him as
agent.
Art. 957. The legacy or devise shall be without effect:  Otherwise, if it was made by a third person
(1) If the testator transforms the thing bequeathed in without any authority from the testator, there
such a manner that it does not retain either the form or would be no revocation
the denomination it had;
(2) If the testator by any title or for any cause alienates To render the legacy or devise inoperative, the
the thing bequeathed or any part thereof, it being transformation must be such as to make impossible the
understood that in the latter case the legacy or devise identification of the thing given.
shall be without effect only with respect to the part thus
alienated. If after the alienation the thing should again Par. 1 refers to the legacy or devise of a specific thing.
belong to the testator, even if it be by reason of nullity of Moreover, the whole Article presupposes a hitherto
the contract, the legacy shall not thereafter be valid, valid legacy or devise.
unless the reacquisition shall have been effected by
virtue of the exercise of the right of repurchase;

Revocation by Alienation which is the subject matter of the legacy or devise with
If the testator by any title, whether by sale or any other right of repurchase subsequent to the execution of the
act of disposition inter vivos, ALIENATES the thing will, the revocation is conditional.
bequeathed or any part thereof, there is also an implied  If he exercises his right of redemption there is no
revocation of the legacy or devise. revocation; the legacy or devise will, therefore,
If only a part of the thing is alienated, the legacy or take effect (there is revival)
devise shall take effect with respect to the part ✓ If he does not exercise his right of redemption, the
untouched. Hence, there would be only a partial revocation becomes absolute
revocation.
Revocation by Loss or Destruction
General Rule: There can be no revival of the legacy If the thing bequeathed is totally lost during the
or devise once revoked impliedly by alienation. lifetime of the testator or after his death without the
This is clear from a mere reading of the law. heir’s fault, obviously, the legacy or devise can no
✓ The rule is applicable even when the thing longer take effect.
alienated is reacquired by the testator even if it be
by reason of the nullity of the contract. If the thing bequeathed or devised is determinate,
there is no liability for eviction on the part of the person
When the testator donates or sells the property obliged to pay or deliver the legacy or devise;
bequeathed, there is implied revocation of the
disposition. The presumption under the law is that there if it is indeterminate as to its kind, the latter shall be
has been a change of intention. liable in accordance with the provision of Art. 928.
However, if there is no change or departure from the If the legacy or devise is generic, the heir charged is
original intent of the testator, as when for instance there liable for eviction. (See Art. 928).
was no consideration for the transfer, or there was
undue influence, it could be that the testator merely “Lost” in this paragraph refers to both physical loss
intended to comply in advance (ademption) with what and legal or juridical loss, as in expropriation
he had ordered in the testament. (Dionisio Fernandez, proceedings.
et al. v. Ismaela Dimagiba, L-23638, Oct. 12, 1967). → Of course, if later on the testator reacquires
the property, the disposition in the will remains
Exception: If the testator reacquires a thing alienated, valid because the alienation had not been
and the reacquisition is by virtue of the exercise of the voluntary. In such a case however, the
right of repurchase, it is evident that: 1) the alienation property must have been existing at the time
had not been absolute 2) and he really intended to the testator dies.
revive the legacy.
A gave B the devise of a particular house. A month
Nullity of Contract later, the house was totally burned. A week after, the
Obviously, “nullity of the contract” does not refer to testator died. B cannot get anything because the
want or absence of consent, such as: devise shall be without effect. Even if the house had
 when violence, or been burned after A’s death, B will still not get anything
 intimidation, or if the loss occurred without any fault on the part of A’s
 fraud has been used upon the testator. heirs (like A’s children, for instance).
 In these cases, there can never be any intention of
the testator to alienate. Hence, there can be no Art. 958. A mistake as to the name of the thing
implied revocation of the legacy. bequeathed or devised, is of no consequence, if it is
✓ If, therefore, the thing is returned to the testator, possible to identify the thing which the testator intended
the legacy is still valid. to bequeath or devise.
Therefore, when the law speaks of the “nullity of the
Effect of Mistake in Name of Thing
contract,” if refers to causes of nullity predicated upon
the fact that the alienation is voluntary and absolute, Example: “My only car, a Ford Expedition Limited
such as a sale made by a minor who has already made 2003” can mean “my only car, a Ford Expedition
a will, or a donation made by the testator subsequent Limited 2002,” provided that identification of testator’s
to the execution of the will but which is void as to form. intention is possible. The typographical error in this
→ What matters is that the presumed intention of the case would not matter
testator to revoke has already been expressed or
manifested by a positive act.
→ The mere reacquisition of the thing does not mean
that this intention has changed.
There is, however, one exception to the rule. The law

declares that if after the alienation the thing should
again belong to the testator, the legacy or devise shall
not thereafter be valid, “unless the reacquisition shall
have been effected by virtue of the exercise of the right
of repurchase.” Hence, if the testator sells the thing

Art. 959. A disposition made in general terms in favor of
the testator’s relatives shall be understood to be in
favor of those nearest in degree
Disposition in General Terms in favor of the

Testator’s Relatives
The relatives must be within the fifth degree, since
persons farther than this are no longer considered
relatives.
 It is evident that relatives by affinity are excluded.
The nearer in degree excludes the farther. Hence,

those in the 3rd degree for example exclude the farther.
The affections of the testator are naturally for those
nearest to him in degree.
 the right of representation does not exist.
 There is no preference between lines, hence, a

Grandson and a sister are both relatives of the
second degree. There is indeed no preference
because what is important is the nearness of
degree.
A testator gave some of his properties “to all who are

entitled thereto.” (Art. 959 cannot be applied because
the clause evidently refers to the intestate heirs, and
not to the “testator’s relatives.”) Here, those who were
left were the widow, four brothers, and four nieces. The
nieces were the children of a deceased sister. Said
nieces were allowed to inherit together with the
brothers. (Singson v. Lim, 47 Phil. 109).
The rule stated in the above article is applicable not

only to legacies and devises, but also to institution of
heirs.
Therefore, if the testator states in his will that he is

leaving all of his properties to all of his relatives, or that
all of his personal or real properties shall be divided
among his relatives, according to the above article, the
testamentary disposition shall be understood to be in
favor of those nearest in degree.
✓ In other words, there is only one rule that will apply

and that is the rule of proximity.
 Consequently, the other rules of intestate

succession, such as the rule of preference
between lines, the right of representation and the
rule of double share for full-blood collaterals are
not applicable.

Legal or Intestate Succession – General Provisions | Relationship |Right of Representation Vice Dean Castillo-Taleon
CHAPTER III and the state. Juridical persons cannot succeed
LEGAL OR INTESTATE SUCCESSION intestate
SECTION 1 — GENERAL PROVISIONS (2) Relatives nearer in degree exclude those who are
more distant, except when there is a right of
Art. 960. Legal or intestate succession takes place: representation in the descending line and in the
(1) If a person dies without a will, or with a void will, or collateral line (only by nephews and nieces of
one which has subsequently lost its validity; decedent)
(2) When the will does not institute an heir to, or dispose (3) There is preference among the heirs in the direct
of all the property belonging to the testator. In such descending line over those in the ascending and
case, legal succession shall take place only with collateral line
(4) Heirs equal in degree receive equal shares within
respect to the property of which the testator has not
in the same group (descendants, ascendants, and
disposed;
collaterals) except:
(3) If the suspensive condition attached to the institution
a. In the ascending line, when there is
of heir does not happen or is not fulfilled, or if the heir division by lines
dies before the testator, or repudiates the inheritance, b. In the descending line, when the heirs are
there being no substitution, and no right of accretion not of the same class
takes place; (legitimate/illegitimate)
(4) When the heir instituted is incapable of succeeding, c. In the collateral line (b/s,
except in cases provided in this Code. nepwhes/nieces), when the heirs are are
not all of full blood
Concept of Legal or Intestate Succession d. The descending line is preferred over the
Legal succession is that kind of succession ascending line
prescribed by the law (and presumed by it to be the e. In succession by representation, when
desire of the deceased), which takes place when the an heir has more representatives than
expressed will of the decedent has not been set down those of another
in a will. (5) The rules on reserva troncal apply to intestate
succession of parents and ascendants
It is called LEGAL, because its terms are fixed by law.
It takes place by operation of law in accordance with Reason, Purpose, or Basis for Legal Succession
the presumed will of the decedent. Because unexpected death may come to any person,
the law presumes what would have been the last
It is called INTESTATE, because it takes place when wishes of a person had such person made a will while
there is NO WILL or no particular disposition of the still alive, taking into consideration his love and
property concerned. affection for those closest to him.
LEGAL SUCCESSION FORCED Causes of Intestacy

SUCCESSION (1) if the decedent dies without a will
it takes place by force of that which takes place → In such case, the law comes into operation and
law with respect to the disposes of his property in accordance with his
legitime presumed will.
the law tries to follow regardless of the • Death includes presumptive death
the presumed will of the decedent’s desire, he
decedent. must comply with the (2) When the will made is void
rules on the legitime. → because of the existence of any of the grounds for
Suppletory to and takes Superior to and the disallowance of wills enumerated in Art. 839 in
place only in default of independent of testate which case, it cannot be admitted to probate by the
testate succession succession probate court
Heirs are called legal or Compulsory and legal
intestate heirs but they heirs (3) valid will subsequently loses its validity
are not necessarily → revocation in accordance with the requisite
compulsory heirs formalities prescribed by law
In a sense therefore, arranged in the order of “Without a “Void will” “Subsequently lost its
decreasing superiority, we have three kinds of will” validity”
succession: no will made lacks essential revoked or ineffective
(1) forced succession requisites;
denied probate
(2) testamentary succession
(3) intestate succession – takes place generally if
there is no applicable valid will, or there is no (4) there is no institution of heir or the institution is void
qualified heir.
(5) if the testator executes a will but disposes of only
Basic Principles of Intestate Succession a part of his properties
(1) An intestate heir must be a BLOOD RELATIVE of → In such case, mixed succession shall take place,
the decedent except the adopted child, spouse, because evidently, the rules of legal intestate
succession shall be applied with respect to those

properties not disposed of. This cause includes cannot as yet inherit. (Castro, et al. v. Gallegos, et al.,
those cases where the institution of heirs is void 10 Phil. 306).
with respect to the disposition of certain properties
but valid with respect to the disposition of other Q: Does Preterition Convert a Court Proceeding into an
properties Intestate Proceeding?
A:
(6) if a testamentary disposition becomes ineffective It depends:
or inoperative (a) If the proceeding is a TESTATE proceeding, the
→ such as when the condition which is attached is same is converted into a proceeding for the settlement
fulfilled or not fulfilled, or when the instituted heir, of an intestate estate (except insofar as there are
or legatee, or devisee dies before the testator, or legacies and devises which are not inofficious).
is incapacitated to inherit from such testator, or → Reason for allowing the conversion — the court
repudiates his inheritance, legacy or devise would have jurisdiction over all the properties of
the deceased, whether or not included in the
(7) If a testamentary disposition is made to depend institution or partition that is annulled on account
upon the fulfillment of a suspensive condition and of the preterition. Ordinarily, when the probate of a
such condition does not happen or is not fulfilled, will is pending in one court, this must first be
→ the result is that the testamentary disposition terminated before an intestate proceeding, based
becomes ineffective. Consequently, the heir, on the alleged preterition can start.
legatee or devisee acquires nothing. Hence, legal → Reason: Normally, the matter of preterition deals
or intestate succession shall take place. with intrinsic not extrinsic validity. However, when
the only provision of the will deals with an
(8) if the testamentary disposition is subject to a institution of a sister or brother, to the exclusion of
resolutory condition and such condition is fulfilled, the parents (who are the only compulsory heirs
→ the result is that the right of the heir, legatee or left), to continue with the probate would be
devisee which he had already acquired at the time USELESS.
of the death of the testator is extinguished.
→ Although this is not included among the causes of (b) If the proceeding is an ordinary civil action to annul
intestacy as enumerated in Art. 960, evidently, the partition already made by the other heirs of certain
legal or intestate succession shall also take place properties, the action cannot be converted into an
in such a case. intestate proceeding with jurisdiction over any and all
properties of the deceased.
(9) If the instituted heir, legatee or devisee dies before → Reason: In the ordinary civil action, the authority
the testator, or is incapacitated to inherit from the of the court is limited to the properties described in
testator, or repudiates the inheritance, legacy or the pleadings, hence, it cannot order the collation
devise, the result is a vacancy in the inheritance. and partition of properties which were not included
→ In such case, the rules of intestate succession in the partition, which was the subject matter of the
shall be applied to the portion or property which is action for annulment.
rendered vacant. This is, however, without
prejudice to the following rights: first, the right of Art. 961. In default of testamentary heirs, the law vests
the substitute if one has been designated by the the inheritance, in accordance with the rules
testator; second, the right of representation when hereinafter set forth, in the legitimate and illegitimate
it properly takes place; and third, the right of relatives of the deceased, in the surviving spouse, and
accretion when it properly takes place. in the State.
Other causes of intestacy Order of Intestate Succession

In addition to those enumerated in Art. 960, there are The above article states in its general form the order of
other causes of intestacy, such as intestate succession. The order is based on the
(1) when there is a preterition in the testator’s will of presumed will of the decedent.
one, or some, or all of the compulsory heirs in the
direct line, or In default of testamentary heirs, it is presumed that he
(2) when a testamentary disposition is subject to a would have provided:
resolutory condition and such condition is fulfilled, (1) first, for legitimate relatives;
or (2) second, for illegitimate relatives;
(3) when a testamentary disposition is subject to a (3) third, for the surviving spouse; and
term or period and such term or period expires, or (4) fourth, for the State.
(4) when a testamentary disposition is impossible of
compliance or is ineffective
Order of succession:
(5) improper disinheritance
(1) legitimate children and their descendants
When Intestate Heirs Can Inherit (2) legitimate parents and their ascendants
Before intestate heirs can inherit on the ground that the (3) illegitimate children
will is void, there must first be a declaration of the (4) surviving spouse w/o prejudice to the rights of
nullity of the will or a positive disallowance of a will. brothers and sisters, nephews and nieces, should
If the intestate heirs merely petition to be declared the there be any
owners without the abovementioned requirement, they (5) collateral relatives w/in the 5th degree

(6) the state, in default of all of the above. It must be observed, however, that this rule
presupposes that all of the relatives belong to the
The order of intestate succession is prescribed by law. same line.
Therefore, it cannot be altered by a contract.
→ Hence, any agreement or partnership contract In other words, the rule of proximity is subordinated
entered into by the parties cannot affect the to the rule of preference between lines by virtue of
hereditary rights which belong to the relatives of which those in the direct descending line shall exclude
the deceased predecessor-in-interest nor alter the those in the direct ascending and collateral lines, while
order prescribed by law for intestate succession. those in the direct ascending line shall exclude those in
the collateral line.
Rule of Preference between Lines
= those in the direct descending line shall exclude Hence, although the son and the father of the decedent
in the succession those in the direct ascending are both one degree removed from the latter, the son
and collateral lines, and shall exclude the father. The grandson is two degrees
= those in the direct ascending line shall, in turn, removed from the decedent; so is the latter’s brother;
exclude those in the collateral line but the grandson shall exclude the decedent’s brother
in the succession.
An intestate heir is not necessarily a compulsory
heir. Exception: Right of Representation
Example: A brother is never a compulsory heir, but may The rule of proximity is modified by the right of
be an intestate heir. representation as defined in Art. 970 of the Code.
Q: May Intestate Heirs be Disinherited? As a general rule, a grandson is excluded by a son.

A: Representation, however, prevents such exclusion.
• If the intestate heirs are also compulsory heirs
(e.g., legitimate children) — YES. Thus, if the decedent is survived by his son, A, and by
• If the intestate heirs are NOT compulsory heirs his grandchildren, C and D, children of a deceased, or
(e.g., brothers) — No. However, such intestate incapacitated, or disinherited child, B under the law, C
heirs may be excluded, expressly or impliedly. and D are not excluded by A in the succession in spite
of the rule of proximity, because, by right of
Principles for the Exclusion of an Intestate Heir representation, they are raised to the place and degree
• The excluded heir must not be a compulsory heir. of their deceased or incapacitated, or disinherited
• The State, as legal heir, must never be excluded father.
expressly because if there be no relative left, a
case might arise when no one will succeed to the As a general rule, nephews and nieces are excluded
property. Such eventuality must not be allowed to by a brother, but such exclusion is nullified by
happen. representation. Thus if the decedent is survived by his
brother, X, and his nephews, A and B, children of a
• When a person is excluded, it is he alone who is
deceased brother, Y, such nephews shall still
excluded and not his own descendants or other
participate in the succession by right of representation.
heirs.
• Express exclusion of one intestate heir makes the
Rule of Equal Division
property go to the heirs of the same degree, if any;
= Relatives of the same degree shall inherit in
if none, then to the heirs of the next degree
equal shares.
Art. 962. In every inheritance, the relative nearest in Like the rule of proximity, this rule presupposes that all
degree excludes the more distant ones, saving the right of the relatives belong to the same line.
of representation when it properly takes place.
In other words, it is subordinated to the rule of
Relatives in the same degree shall inherit in equal preference between lines.
shares, subject to the provisions of Article 1006 with
respect to relatives of the full and half blood, and of Hence, although a grandson of the decedent is a
Article 987, paragraph 2, concerning division between relative of the latter in the second degree, while the
the paternal and maternal lines. father of such decedent is a relative in the first degree,
yet the former, who is in the direct descending line,
Rules of Proximity shall exclude the latter, who is in the direct ascending
= In every inheritance, whether testamentary or line
intestate, the relatives nearest in degree to the
decendent shall exclude the more distant Exceptions
ones. There are, however, three exceptions to the rule that
relatives of the same line and degree shall inherit in
Hence, a son excludes the grandson, a father excludes equal shares. They are:
the grandfather, a brother excludes the nephew.
(1) first, when the inheritance is divided between
paternal and maternal grandparents (division in
the ascending line);

when the decedent is survived by two grandparents in go to the paternal and the other half to the
the paternal line and by one grandparent in the maternal ascendants. In each line, the division
maternal line, the inheritance shall be divided in such a shall be made per capita. (Par. 2, Art. 987).
way that one-half shall pass to the grandparents in the
paternal line, while the other one-half shall pass to the SUBSECTION 1
surviving grandparent in the maternal line RELATIONSHIP
(2) second, when the inheritance is divided among Art. 963. Proximity of relationship is determined by the
brothers and sisters, some of whom are of the full number of generations. Each generation forms a
blood and others of the half blood; and degree.
those of the full blood shall be entitled to double the Art. 964. A series of degrees forms a line, which may be
share of those of the half blood either direct or collateral.
(3) third, in certain cases when the right of
A direct line is that constituted by the series of degrees
representation takes place.
among ascendants and descendants.
whenever there is succession by representation, the
division of the estate shall be made per stirpes, in such A collateral line is that constituted by the series of
manner that the representatives, although of the same degrees among persons who are not ascendants and
degree, shall not inherit more than what the person descendants, but who come from a common ancestor.
they represent would inherit, if he were living or could
inherit Art. 965. The direct line is either descending or
ascending.
(4) fourth, in case of legitimate and illegitimate The former unites the head of the family with those who
children descend from him.
the legitime of the illegitimate child shall consist of ½ of The latter binds a person with those from whom he
the legitime of the legitimate child descends.
Computation of Degrees
The rules for computation of degrees may be illustrated
by the following example:
X is survived by his son, A, and his grandchildren, D, E

and F. D is the child of a deceased son of X (B); E and
F are the children of another deceased son of (C). It is
clear that A shall inherit in his own right, while the
grandchildren shall inherit by right of representation. D
shall receive the share that would have gone to his
father if the latter were alive; E and F shall also receive A is the common ancestor; B, C and D are the children
the share that would have gone to their father if the of A; E and F are the children of B G and H are the
latter were also alive. Hence, although they are all two children of D; I and J are the children of E; K is the child
degrees removed from the decedent, D shall receive of F; L is the child of H; and M and N are the children
twice as much as either E or F. of I.
Some Important Rules Let us assume that E is the propositus or person with
• The right of representation takes place in the direct whom the computation is made. In terms of degrees,
descending line, but never in the ascending. (Art. how is E related to his grandson, M? In this case,
972). descent is made from E to M, counting the number of
• In the collateral line, the right of representation persons from E to M — minus one. Therefore, E is two
takes place only in favor of the children of brothers degrees removed from his grandson, M.
or sisters, whether they be of the full or half-blood.
(Art. 972). How is E related to his grandfather, A? The same
• Should brothers and sisters of the full blood procedure is followed. Ascent is made from E to A,
survive together with brothers and sisters of the counting the number of persons from E to A — minus
half-blood, the former shall be entitled to a share one. Therefore, E is two degrees removed from his
double that of the latter. (Art. 1006). grandfather, A.
• Should there be more than one ascendant of equal
degree belonging to the same line, they shall How is E related to his brother, F? In this case, ascent
divide the inheritance per capita; should they be of is made from E to their common ancestor, B, and then
different lines but of equal degree, one-half shall descent is made to F counting the number of persons

from E up to B down to F — minus one. Therefore, E is share or shares which are rendered vacant shall pass
two degrees removed from his brother, F. to the co-heirs of the renouncer or renouncers by right
of accretion.
How is E related to his uncle, C? The same procedure → This rule is absolute, even assuming that the
is followed. Ascent is made to E to their common renouncer is a child or descendant of the decedent
ancestor, A, and then descent is made to C, counting and he has children or descendants of his own.
the number of persons from E up to B to A down to C This is so because of the principle that an heir who
— minus one. Therefore, E is three degrees removed repudiates his inheritance may not be
from his uncle, C. represented.
How is E related to his first cousin, H? The same Under Art. 969, all of the relatives of the decedent of
procedure is again followed. Ascent is made from E to the same class and degree called by the law to
their common ancestor, A, and then descent is made succeed have repudiated their inheritance.
to H, counting the number of persons from E up to B to What is the effect of this total vacancy?
A down to D to H — minus one. Therefore, E is four • According to the law, those of the following
degrees removed from his first cousin H. degree shall inherit in their own right.
• They cannot inherit by right of representation
Art. 967. Full blood relationship is that existing between because of the principle that an heir who
persons who have the same father and the same repudiates his inheritance may not be
mother. represented.
• Consequently, if the decedent is survived by, let us
Half blood relationship is that existing between persons say, four legitimate children, and all of them
who have the same father, but not the same mother, or repudiate their inheritance, the effect of such
the same mother, but not the same father. repudiation is that those of the following degree
shall be called to the succession.
Art. 968. If there are several relatives of the same • But such relatives shall inherit in their own right
and not by right of representation, even if they are
degree, and one or some of them are unwilling or
the grandchildren of the decedent.
incapacitated to succeed, his portion shall accrue to the
• Hence, the inheritance shall be distributed
others of the same degree, save the right of
among them per capita.
representation when it should take place.
• It would be different if instead of repudiation by all
of the heirs, all of them died before the decedent
Art. 969. If the inheritance should be repudiated by the
or all of them are incapacitated to inherit. In
nearest relative, should there be one only, or by all the such case, the grandchildren shall inherit by right
nearest relatives called by law to succeed, should there of representation and not in their own right.
be several, those of the following degree shall inherit in Hence, the inheritance shall be distributed among
their own right and cannot represent the person or them per stirpes and not per capita
persons repudiating the inheritance
[Art 968] Accretion in Intestate Succession
Art 968 Art 969 Example: A decedent leaves 3 first-cousins and an
refers to a case where refers to a case where estate of P300,000. If one of the cousins is
one or some of the all of such relatives have incapacitated or repudiates, the P100,000 which
surviving relatives of the repudiated their should have gone to him will accrue to the other two,
decedent of the same inheritance. who will each get P150,000. Each therefore gets
class and degree are P100,000 in his own right, and P50,000 by virtue of
incapacitated to inherit accretion.
from him or have
repudiated their Example:
inheritance
General Rule: Under Art. 968, in case of

INCAPACITY, the share or shares which are rendered
vacant shall pass to the co-heirs of the incapacitated
heir or heirs by right of accretion.
→ This rule is not absolute – subject to exception A, B, and C are legitimate children of D. X and Y are
Exception: If the incapacitated heir happens to be a A’s legitimate children. D leaves P300,000 intestate. If
child or descendant of the decedent and he has A is incapacitated, X and Y will each get P50,000 by
children or descendants of his own, then the share the right of representation, but if A repudiates, X and Y
which is rendered vacant by reason of incapacity shall will each get nothing. (An heir repudiating cannot be
pass to such children or descendants by right of represented. [Art. 977].). Therefore, B and C will each
representation. get P150,000
→ It is, therefore, evident that the right of
representation is superior to the right of accretion.
Absolute Rule: On the other hand, in case of

REPUDIATION by one or some of the relatives, the

[Art 969] Effect of Repudiation Representation exists in case of:
(1) predecease (testate and intestate)
(2) incapacity (testate and intestate)
(3) disinheritance (this happens only in the case of
testate succession)
The representation is “degree by degree.” Of course,

INTESTATE ESTATE two, three, or more degrees nearer may be reached,
A, B, and C are the legitimate children of D. X and Y thus, it is possible for a person and his great-
are the legitimate children of A; W, the legitimate child grandnephew to inherit together, but the reaching of
of B; and Z, the legitimate child of C. If A, B, and C the nearer degree must be “step by step” or “degree by
repudiate the inheritance, the estate will be divided degree.” This rule, however, applies only to
among the four grandchildren, and so each gets representation in the direct line.
P300,000 in his own right. Remember, in case of
repudiation, there is no right of representation. (Art. The representative succeeds not only to the properties
977). and rights of the decedent, but also to all the latter’s
transmissible obligations.
Q: If only C repudiates, how will the estate be divided?
A: A and B will each get P600,000. X and Y are Parties in Representation
excluded, because the nearer excludes the farther. (1) the decedent or deceased whose estate is
(Art. 962). Z is also excluded because there is no right transmitted;
of representation in case of repudiation. W is excluded (2) the representative who is given the right to
by B. (Art. 977). succeed by representation;
(3) the represented who would have succeeded if he
Q: Suppose A, B, and C are all incapacitated, how will were living or he could have inherited (original heir)
the grandchildren inherit?
A: By right of representation, not in their own right. Characteristics
Hence, X and Y will each get P200,000. W gets The most important characteristics of the right of
P400,000 and Z gets P400,000. (Art. 974 and Art. 982). representation are the following:
(1) it is a right of subrogation;
Q: Suppose A, B, and C all predeceased D, how will (2) it constitutes an exception to the rule of proximity
the grandchildren inherit? and the rule of equal division among relatives of
A: By right of representation, not in their own right. the same class and degree;
Hence, X and Y will each get P200,000. W gets (3) the representative is called to the succession by
P400,000 and Z gets P400,000. (Art. 974 and Art. 982). the law and not by the person represented;
(4) the representative succeeds the decedent and not
SUBSECTION 2 the person represented;
RIGHT OF REPRESENTATION (5) it can only take place when there is a vacancy in
the inheritance brought about by either
Art. 970. Representation is a right created by fiction of predecease, or incapacity, or disinheritance of an
law, by virtue of which the representative is raised to heir; and
the place and the degree of the person represented, and (6) as a general rule, the right can be exercised only
acquires the rights which the latter would have if he by grandchildren or descendants of the decedent
were living or if he could have inherited.
Because of the principle that the representative
Art. 971. The representative is called to the succession inherits from the decedent and not from the person
by the law and not by the person represented. The represented, the following consequences will
representative does not succeed the person necessarily follows:
represented but the one whom the person represented (1) first, the representative must be capable of
would have succeeded. succeeding the decedent;
(2) second, even if the representative is
incapable of succeeding the person
Concept of Representation
represented, he can still inherit by right of
The rule of proximity is not absolute in character. There
representation so long as he is capable of
is one very important exception. This exception is what
succeeding the decedent; and
is known as the right of representation.
(3) third, even if the representative had
repudiated his inheritance coming from the
By virtue of this right, the relative nearest in degree
person represented, he can still inherit from
does not always exclude the more remote ones,
the decedent by right of representation
because, by fiction of law, more distant relatives
belonging to the same class as the person
When Representation Takes Place
represented, are raised to the place and degree of such
person, and acquire the rights which the latter would Testamentary Succession
have acquired if he were living or if he could have In testamentary succession, the right of representation
inherited. can take place only in the following cases:
(1) first, when the person represented dies
before the testator;

(2) second, when the person represented is illegitimate descendants of illegitimate children when
incapable of succeeding the testator; and the latter predecease their own parents.
(3) third, when the person represented is
disinherited by the testator. Representation of Legitimate Child: [not the same
rights granted with IC] there is no provision w/c
In all of these cases, since there is a vacancy in the expressly gives the same right to the illegitimate
inheritance, the law calls the children or descendants descendants of a legitimate child. The law has placed
of the person represented to succeed by right of a barrier b/n the legitimate and illegitimate members of
representation. the family.
It must be noted, however, that in testamentary Some rules:

succession the person represented must be a • Property received by representation cannot be
compulsory heir of the testator in the direct taken by or be held responsible for the debts of the
descending line. person represented.
→ Reason: Same is not part of his estate; it is
It will be recalled that under Art. 856 of the Code, a part of the decedent’s estate.
voluntary heir cannot transmit any right to his own heirs • Even if by institution, compulsory heirs may inherit
in case he dies before the testator or he is incapable of unequally; still by representation, they would get
succeeding the testator. This rule is absolute in equally or per capita, as long as they are members
character. of one group
A compulsory heir in the direct descending line on the Art. 972. The right of representation takes place in the
other hand, can transmit his rights, but only with direct descending line, but never in the ascending.
respect to the legitime.
→ In other words, if a compulsory heir in the direct
In the collateral line, it takes place only in favor of the
line dies before the testator, or incapable of
children of brothers or sisters, whether they be of the
succeeding the testator or is disinherited, his own
full or half blood.
children or descendants shall still participate in the
succession, not in their own right, but by right of
representation. Representation in Direct Descending Line
General Rule: the right of representation takes place
in the direct descending line, but never in the
Intestate Succession
ascending line.
In legal or intestate succession, the right of
representation can take place only in the following never in the ascending line = hence, the ascendants
cases: nearest in degree regardless of line, get all the
(1) first, when the person represented dies inheritance.
before the decedent; and
(2) second, when the person represented is The right of representation in the direct line takes place
incapable of succeeding the decedent. in the following cases:
(1) first, when children concur with grandchildren,
In both of these cases, since there is a vacancy in the the latter being the children of other children
inheritance, the law calls the children or descendants who died before the decedent or who are
of the person represented to succeed by right of incapable of succeeding the decedent;
representation to the entire portion which is (2) second, when all the children are dead or are
rendered vacant. incapable of succeeding the decedent and
grandchildren concur with great
Rules in Adoption grandchildren, the latter being the children of
Principle: Reason: other grandchildren who died before the
An adopted child cannot there is no filiation decedent or are incapable of succeeding the
represent. (whether by blood or by decedent; and
law) between the (3) third, when all children are dead or are
adopted child and the incapable of succeeding the decedent leaving
parent of the adopter. children or descendants of the same degree
The legal filiation is only Representation in Collateral Line.
between the adopted Exception: where the right does not take place in the
child and the adopter. direct descending line but in the collateral line in favor
Neither may an adopted There is no blood or of children of brothers and sisters of the decedent,
child be represented. legal relationship whether they be of the full blood or half blood.
between the adopter
and the children of the The right, however, is subject to the following
adopted limitations:
(1) The right can be exercised only by nephews
Representation by Illegitimates and nieces of the decedent.
Representation of Illegitimate Child: the right of • This is clear from the provisions of Arts. 972
representation is granted to both legitimate and and 975 of the Code. Consequently, it cannot
be exercised by grandnephews and Art. 973. In order that representation may take place, it
grandnieces. is necessary that the representative himself be capable
of succeeding the decedent.
(2) The right can be exercised by the nephews or Capacity of Representative
nieces of the decedent if they will concur with The above rule is a logical consequence of the principle
at least one brother or sister of the decedent. enunciated in Art. 971 of the Code to the effect that the
• This limitation is expressly provided for in Art. representative succeeds the decedent and not the
975. person represented.
• Otherwise, if they are the only survivors,
they shall inherit in their own right and not Consequently, even if the representative is incapable
by right of representation of succeeding the person represented, he can still
inherit by right of representation, provided that he is
Q: A and B are C’s brothers. D is the child of A, and E capable of succeeding the decedent.
of B, while F is the child of D. C died without leaving a
will. A, B and D are likewise dead. May F inherit from Art. 974. Whenever there is succession by
C? representation, the division of the estate shall be made
A: F cannot inherit from C. True, he is a fourth degree
per stirpes, in such manner that the representatives
relative by blood of the decedent, but he is excluded by
shall not inherit more than what the person they
E, a nephew, and therefore, a third degree relative by
represent would inherit, if he were living or could
blood of said decedent.
inherit.
Actually, the right of representation does not take place
in the instant case. In the collateral line, representation Inheritance “Per Stirpes”
takes place only in favor of the children of brothers and “Per stirpes” means inheritance by group, all those
sisters, whether they be of the full or half blood (Art. within the group inheriting in equal shares.
972), and only if they survive with at least one uncle or
aunt who is a brother or sister of the decedent (Art. Two Ways of Inheriting
975). Both conditions are not present here. (1) per stirpes or per capita – HOW MUCH?
per capita = when succession is by head or one’s
F is a grandnephew of the decedent C, not a nephew. own right
He concurs with a nephew of the decedent, not with a (2) by representation or by one’s own right – HOW?
brother or sister. Therefore, the only way by which he
can inherit would be in his own right. Unfortunately for Effect Upon Division of Estate
him, under the principle of proximity recognized in Art. The most fundamental effect of succession by
962 of the Civil Code, he is excluded by E. representation is that the representative is, by legal
fiction, raised to the place and degree of the person
(3) The right of representation in the collateral line represented.
is possible only in intestate succession;
• in other words, it cannot possibly take place in TESTAMENTARY INTESTATE
testamentary succession. SUCCESSION SUCCESSION
→ According to Art 856, a voluntary heir cannot the representative he acquires all of the
transmit any right to his own heirs in case he dies acquires all of the rights rights which the person
before the testator; in other words, (and this can which the person represented had with
also be applied to incapacity), if a voluntary heir represented had with respect to his entire
dies before the testator, survived by children or respect to his legitime legal portion
descendants of his own, he cannot be represented In both cases, according to Art. 974, the division of
in the succession by such children or the estate shall be made per stirpes, in such
descendants. The portion of the inheritance which manner that the representative or representatives
is rendered vacant shall, therefore, pass to his co- shall not inherit more than what the person they
heirs by right of accretion represent would inherit
→ From these principles which are enunciated in Art. the right which is the right which is
856 of the Code, two conclusions can be inferred. acquired by the acquired is the right to
In the first place, the right of representation in representatives is the the legal portion which
testamentary succession is possible only right to the legitime of is rendered vacant by
when the person represented is a compulsory the compulsory heir who reason of the fact that
heir in the direct descending line; in the second dies before the testator, the legal heir dies before
place, the right of representation in or who is unworthy to the decedent or is
testamentary succession pertains only to the succeed, or who is unworthy to succeed
legitime, which is rendered vacant by either disinherited
predecease, incapacity or disinheritance, and right of representation the right refers to the
never to the free portion. refers to the legitime whole share with would
have been acquired by
the person represente

Art. 975. When children of one or more brothers or The situation is different if it is the person is supposed
sisters of the deceased survive, they shall inherit from to be represented who repudiates the inheritance. In
the latter by representation, if they survive with their such case, Art. 977 applied. There can be no right of
uncles or aunts. But if they alone survive, they shall representation in repudiation.
inherit in equal portion.
✓ Although Art 976 mentions only repudiation, the
cases of unworthiness, incapacity, and
Inheritance by Nephews and Nieces
disinheritance should be deemed included.
granchildren
nephews/nieces nephews/nieces
(won survive w/
+ uncles/aunts alone
aunts/uncles Art. 977. Heirs who repudiate their share may not be
represented.
nephews/
nieces = per Effect of Repudiation by Heir
stirpes When an heir called either by will or by law to succeed
in their own
always inherit repudiates his inheritance, the circumstances are
right/per
per stirpes
capita different from that of predecease, incapacity or
uncles/aunts = disinheritance. He deprives, by his own positive act, his
per capita
children or descendants of the right of representation.
This is logical because a person cannot transmit a
right which he does not have.
• grandnephews and grandnieces are excluded
from the right of representation Consequently, according to the law, he cannot be
represented. Hence, in conformity with the presumed
will of the decedent, the share which is rendered vacant
as a consequence of such repudiation shall pass to
the other heirs by right of intestate succession or by
right of accretion depending upon the circumstances
Q: B and C are A’s brothers: X is the child of B; Y and of each case.
Z, the children of C. Estate is P900,000. A is the
decedent. If C predeceases A, divide the estate. Q: Why does the law not allow a renouncer to be
A: B gets P450,000; and Y and Z each gets P225,000. represented, although it allows an incapacitated or
disinherited person to be represented?
Q: If B and C predecease A, divide the estate. A: Because the circumstances are different. A
A: X, Y, and Z each get P300,000. They inherit in their renouncer for motives of his own, does so voluntarily.
own right, and therefore, per capita and not by right of His act of repudiation takes away his right to dispose of
representation. the property — dispossesses indeed his children of that
which could have gone down to them. Note that
Art. 976. A person may represent him whose repudiation is an act of disposition.
inheritance he has renounced.
In cases of incapacity or disinheritance however, the
Repudiation by Representative loss is involuntary. The children of the incapacitated or
Thus, under the above article, if a child renounces or disinherited person should not be deprived of the right
repudiates his inheritance when his father died, he may of representation. They should not suffer for having an
still represent the latter, when subsequently his unworthy parent. They should indeed be sympathized
grandfather dies. with.
Q: In 1960, B died, survived by his son, X, X repudiated

his inheritance. Subsequently in 1970, A, father of B,
died, survived by his son, C, and his grandson, X. May
X represent his father, B, with respect to the inheritance
coming from A?
A: Under Art. 976, he may. The provision of Art. 976 is
a necessary consequence of the rule stated in Art. 971.
It must be remembered that the representative does

not inherit from the person represented. Hence, his
capacity or incapacity to inherit from the person
represented is immaterial; the same is true with regard
to his acceptance or repudiation of the inheritance
coming from the person he is supposed to represent.
What is material, therefore, is his capacity to inherit
from the decedent and his acceptance of the
inheritance coming from such decedent

Articles 978 to 1014 WILLS & SUCCESSION (2019)
Order of Intestate Succession Vice Dean Castillo-Taleon
SECTION 2 SUBSECTION 1
ORDER OF INTESTATE SUCCESSION DESCENDING DIRECT LINE
Some Cardinal Principles of Intestate Succession Art. 978. Succession pertains, in the first place, to the
• Even if there is an order of intestate succession, descending direct line.
the compulsory heirs are never excluded.
Moreover, the Civil Code follows the theory of Art. 979. Legitimate children and their descendants
“concurrence,” not the theory of “exclusion.” succeed the parents and other ascendants, without
• The nearer excludes the farther, without prejudice distinction as to sex or age, and even if they should come
to the right of representation (because by virtue of from different marriages.
representation, the farther becomes just as “near”
as the “nearer”). An adopted child succeeds to the property of the
• There is NO right of representation in the adopting parents in the same manner as a legitimate
ascending line.
child.
• There is right of representation in the descending
line.
Reason for Preference of the Descending Direct
• In the collateral line, the right of representation is
Line
given only to children of brothers and sisters.
(1) descends (descendants)
[NOTE:
(2) ascends (ascendants)
o Hence, grandchildren of brothers and sisters
(3) then spreads (collaterals)
cannot represent in the succession of the
Thus, the descendants are preferred.
decedent; neither can children of first cousins.
o This right of representation in the collateral
Although descendants are mentioned as No. 1, two
line is true only in legal succession, never in
rules must be borne in mind:
testamentary succession, because a
• the nearer excludes the farther
voluntary heir CANNOT be represented.].
• Art. 978 does not mean that other compulsory
• The intestate shares are either equal to or greater
heirs (like the surviving spouse, and the
than the legitime (otherwise a good way to
illegitimate children) are excluded. In fact, they
decrease the legitime would be by dying intestate).
are, together with the legitimate descendants,
• In case of partial intestacy, the legacies and
CONCURRENT INTESTATE HEIRS.
devises or institutions to the free portion must be
charged PROPORTIONATELY against the
Order of Intestate Succession to the Estate of a
intestate heirs who are given intestate shares
Legitimate Child
greater than their legitimes, insofar as said excess
(Here the decedent is a legitimate child):
is concerned, but in no case should the legitime be
Legitimate/Legitimated/Legally Adopted children and their
impaired. legitimate descendants.
• Grandchildren ALWAYS inherit by right of
representation, provided representation is proper. Legitimate parents and other legitimate ascendants
(This is true whether they concur with children of
the deceased or not.) Illegitimate children and their descendants, whether legitimate
• Therefore, whenever all the children repudiate, the or illegitimate
grandchildren inherit in their own right, for here,
representation is NOT PROPER. Surviving Spouse
• Nephews and nieces inherit either by right of
representation or in their own right. Brothers and Sisters; Nephews and Nieces
o By right of representation, when they concur
with aunts and uncles (provided that Collateral Relatives up to the 5th degree
representation is proper, that their own
parents should not have repudiated).
o In their own right, whenever they do not State
concur with aunts and uncles.
• Illegitimates of legitimates cannot represent NOTE: The order just given is successive and
because of the BARRIER, but illegitimates (and exclusive, but the PRIMARY COMPULSORY HEIRS
legitimates) of illegitimates can represent. ARE NEVER EXCLUDED.
• There is barrier between the LEGITIMATE and the → These are the legitimate children and
ILLEGITIMATE family. descendants, the illegitimate children and
• There can be reserva troncal in legal succession. descendants and the surviving spouse. They
• A renouncer can represent, but cannot be are called CONCURRING INTESTATE
represented. HEIRS.
• A person who cannot represent a near relative Hence:
(such as a father who has renounced) cannot also • The presence of legitimate children and
represent a relative farther in degree. After all, the descendants will not exclude the illegitimate
right to represent is by itself also a successional children and descendants.
right, which is of course governed by legal • The presence of legitimate children and
provisions. descendants will not exclude the surviving spouse.

• The presence of illegitimate children and adopter either by right of representation or in his
descendants will not exclude the surviving spouse. own right. Neither can his legitimate children or
descendants inherit by right of representation or in
Order of Intestate Succession to the Estate of an their own right from the adopter.
Illegitimate Child → The reason for this is that although adoption
(Here, the decedent is an illegitimate child): creates a relationship between the adopter
Legitimate/Legitimated/Legally Adopted children and their and the adopted child which is similar to that
legitimate descendants. which results from legitimate paternity and
filiation, it does not create any relationship
Illegitimate children and their descendants, whether legitimate between the adopted child and the legitimate
or illegitimate relatives of the adopter or between the
adopter and the legitimate relatives of the
Ilegitimate Parents adopted child.
• The presence of adopted children excludes a
sister of the deceased from the inheritance, hence,
Surviving Spouse said sister cannot even successfully file a petition
for letters of administration. This is more so if the
surviving spouse and the adopted children object
Illegitimate Brothers and Sisters; Nephews and Nieces
to such grant. (Saguinsin v. Lindayag, et al., L-
17759, Dec. 17, 1962)
State
Art. 980. The children of the deceased shall always
inherit from him in their own right, dividing the
Legitimate Children or Descendants
inheritance in equal shares.
• The first in the order of intestate succession are
legitimate children or descendants.
Art. 981. Should children of the deceased and
• This class includes legitimated children or
descendants of other children who are dead, survive,
descendants and adopted children.
the former shall inherit in their own right, and the latter
• The term “legitimate” includes “legitimated.”
Children who are legitimated by subsequent by right of representation.
marriage shall enjoy the same rights as legitimate
children. Art. 982. The grandchildren and other descendants
o The effects of legitimation shall retroact shall inherit by right of representation, and if any one of
to the time of the child’s birth. them should have died, leaving several heirs, the
o The effects of legitimation of children who portion pertaining to him shall be divided among the
died before the celebration of the latter in equal portions.
marriage shall benefit their descendants
• Consequently, what had been stated under Art. Inheritance by Children; Rules of Division
887 of the Code regarding legitimate children or The above articles enunciate the different rules which
descendants as compulsory heirs are also must be followed in the division of the inheritance if the
applicable here. decedent is survived by legitimate children or
• This rule must be understood to be without descendants.
prejudice to the concurrent rights of illegitimate
children or descendants and the surviving spouse. Inheritance by Children
If all of the survivors are legitimate children, such
Rules For Adopted Children children shall inherit in their own right. Consequently,
• There is an exception to the 2nd paragraph of Art. the inheritance shall be divided among them per capita
979 of the Civil Code. The law provides that “If the or in equal shares.
adopter is survived by legitimate parents or
ascendants, and by an adopted person, the latter Example: Estate is P1 million. There are 5 legitimate
shall not have more successional rights than an children. Each gets P200,000.
acknowledged natural child.”
• As long as there are legitimate children or NOTE: This is true even if the children come from
descendants, the adopted child has the SAME different marriages, for after all, the dead parent is the
share as one legitimate child. common parent.
• The adoption shall make the adopted person a
legal heir of the adopter. Inheritance by Children Concurring With
• The adopter shall not be a legal heir of the adopted Grandchildren
person, whose parents by nature shall inherit from C GC
him. in their own right; per by right of
• if the adopter is survived by legitimate parents or capita representation; per
ascendants and by an adopted person, the latter stirpes
shall not have more successional rights than an
acknowledged natural child. Hence, if the decedent, for instance, is survived by two
 Furthermore, an adopted child cannot inherit from legitimate children, A and B, and by two legitimate
the legitimate parents or ascendants of the grandchildren, D and E, children of C, another

legitimate child who is already dead or who is incapable inherit in their own right, per capita and in equal
of succeeding, the inheritance shall be divided in such portions. (Art. 969).
a way that A and B shall be entitled to 1/3 each in their
own right, while D and E shall be entitled to the
remaining 1/3 by right of representation which they
shall divide in equal shares.
Example: Estate is P1 million. Surviving relatives are

A, a legitimate child; B and C, legitimate children of X,
a deceased legitimate child of the decedent. A gets Q: A is the decedent. B, C, D are his children. E, F, G,
P500,000. B and C each gets P250,000. H and J are the grandchildren. K and L are J’s children.
Estate is P900,000. B, C, D, and J predeceased A.
✓ Art. 981 applies also to cases of incapacity. Divide the property.
A:
Inheritance by Grandchildren • E, F and G will each get P100,000 (a total of
General Rule: If all of the survivors are legitimate P300,000 which would have been B’s share).
grandchildren, such grandchildren shall inherit by right • H gets P300,000 (which would have been C’s
of representation. share).
• K and L will each get P150,000 (a total of
Similarly, if some of the survivors are legitimate P300,000 which should have been J’s share had J
grandchildren and the others are legitimate children or been alive to represent D).
descendants of other legitimate grandchildren who
died before or who are incapable of succeeding the
decedent, such grandchildren and descendants shall Art. 983. If illegitimate children survive with legitimate
inherit by right of representation. children, the shares of the former shall be in the
proportions prescribed by Article 895.
In both cases, the inheritance shall be divided among
them per stirpes.
Shares of Illegitimate Children Concurring With
Legitimate Children
Hence, if the only survivors, for instance, are A and B, The shares of the illegitimate children are to be taken
children of a deceased son, C and D, children of only from the free portion.
another deceased son, and E, child of a deceased
→ This is so otherwise legitimate children would
daughter, since all of them are grandchildren of the
be prejudiced if there were so many
decedent, and, as a consequence, shall inherit by right
illegitimate children. The legitime of
of representation, the inheritance must be divided
compulsory heir must never be impaired.
among them in such a way that 1/3 shall be given to A
and B, another 1/3, to B and C, and the remaining 1/3,
Under our system of compulsory succession, whether
to E.
testamentary or intestate, it is axiomatic that the
legitime of compulsory heirs must be preserved.
It must be observed, however, that grandchildren do
not always inherit by right of representation. There is If the decedent is survived by only one or two legitimate
one exceptional case where they are called to inherit in children and by many illegitimate children and if the
their own right. distribution of the inheritance is made directly in
accordance with the proportion of 10:5 as prescribed in
Exception: If all of the children should repudiate Art. 176 of the Family Code, evidently, there would be
their inheritance an impairment of the legitime of the legitimate child or
→ according to Art. 969 of the Code, those of the children.
following degree shall inherit in their own right.
Hence, if there are grandchildren surviving, Thus, if the decedent is survived by only one legitimate
they shall be called to the inheritance because child and eight acknowledged natural children the
they are next in degree and not because of proportion of distribution, if made directly, would be
representation. This is, of course, in 2:1:1:1:1:1:1:1:1. That means that the legitimate child
conformity with the principle that heirs who whose legitime is supposed to be 1/2 of the entire
repudiate their inheritance cannot be estate would be entitled to only 2/10 or 1/5 of the entire
represented estate, while each of the acknowledged natural
children would be entitled to 1/10. Certainly, such a
Summary: possibility, or situation cannot be countenanced by our
• When the children are all dead, the grandchildren law. Therefore, in the distribution of the inheritance in
inherit by right of representation (Art. 982), accordance with the proportions referred to, it is
provided that representation is proper. (NOTE that absolutely necessary that the legitime of the survivors
representation is not proper in case of must first be satisfied.
repudiation.). [½ sa Legitimate Child/ren then the other half,
• When all the children repudiate, there is no right of paghatian ng mga illegitimate children;2:1 or 10:5
representation; and therefore the grandchildren proportions]

Rules First: Where the adopted had received during his
• Follow the proportion of 2:1 (2 for every legitimate lifetime any property from the adopter by
child, 1 for every illegitimate child), PROVIDED gratuitous title. According to the Welfare Code, such
that the legitime of the legitimate children is NOT property shall revert to the adopted parents should the
IMPAIRED. adopted predecease the former without legitimate
• Otherwise, give the legitime of the legitimate issue unless the adopted had, during his lifetime,
children first, then whatever is left is given to the alienated such property. This is, however, subject to
illegitimate children. the following limitations should the adopted leave no
property other than that received from the adopter:
Art. 984. In case of the death of an adopted child leaving (1) If the adopted is survived not only by the
no children or descendants, his parents and relatives by adopter but also by illegitimate children or his
consanguinity and not by adoption, shall be his legal or her spouse, such illegitimate children
collectively or spouse shall receive ¼ of the
heirs.
property; and
(2) If he is survived not only by the adopter but
Estate of an Adopted Children also by illegitimate children and his or her
Under Art. 190 of the Family Code, legal or intestate spouse, then the illegitimate children
succession to the estate of the adopted shall be collectively shall receive ¼ of the property,
governed by the following rules: while the spouse shall also receive another ¼.
CONCURRING RULES In both cases, the balance of the property shall
Legitimate surviving ordinary rules of revert to the adopter.
and spouse legal or intestate
illegitimate succession Second: Where the biological parents of the
children and adopted are both dead. In such a case, the adopted
descendants parents shall take the place of the natural parents in the
biological adopted divide the entire line of succession, whether testate or intestate. It must
parents, parents estate be observed that this is a very exceptional example of
legitimate or ½ = biological succession by legal substitution which makes the
illegitimate, or parents or legitimate position of the adopter very attractive.
the ascendants
legitimate SUBSECTION 2
ascendants ½ = adopted parents ASCENDING DIRECT LINE
of the
adopted
Art. 985. In default of legitimate children and
surviving adopted ½ = SS or IC
descendants of the deceased, his parents and
spouse OR parents
ascendants shall inherit from him, to the exclusion of
the ½ = AP
collateral relatives.
illegitimate
children of
the adopted Legitimate Parents or Ascendants
surviving adopted divide the entire • The second in the order of intestate succession
spouse AND parents estate in equal are legitimate parents or ascendants.
the shares • It must be noted that they are called to the
illegitimate 1/3 = SS succession only in default of legitimate
children of 1/3 = IC children or descendants.
the adopted 1/3 = AP • They cannot, however, be excluded by an adopted
adopted parents inherit the entire child.
estate • It must also be noted that, although they can
collateral blood relatives ordinary rules of exclude collaterals, they cannot exclude
of the adopted legal or intestate illegitimate children and the surviving spouse
succession shall
apply A died intestate leaving P1 million. Surviving relatives
are B, his father, and C (A’s) brother. The whole estate
The foregoing rules repealed the rule stated in Art. 984 goes to B to the exclusion of C.
of the Civil Code. The purpose of the repealed rule was
to prevent adoption with an ulterior motive because if Art. 986. The father and mother, if living, shall inherit in
the parents by adoption were the ones to inherit from equal shares.
the adopted child, many would adopt rich children in
order to inherit from them, and not for sentimental Should only one of them survive, he or she shall
purposes or reasons. succeed to the entire estate of the child.
The only exceptions then to the repealed rule where
the adopter may inherit by operation of law from the Art. 987. In default of the father and mother, the
adopted should the latter die intestate as found in Art. ascendants nearest in degree shall inherit.
39, No. 4, of the Child and Youth Welfare Code (P.D.
No. 603) are the following:

Should there be more than one of equal degree Illegitimate Children Concurring With
belonging to the same line they shall divide the Descendants of Another Illegitimate Child
inheritance per capita; should they be of different lines • This rule is similar to the rule for legitimate children
but of equal degree, one-half shall go to the paternal and grandchildren.
and the other half to the maternal ascendants. In each • The grandchildren inherit by right of
line the division shall be made per capita. representation in order not to prejudice the
children left.
Inheritance by Legitimate Ascendants • Art. 989 applies also in case of INCAPACITY.
• In default of the father and mother, the rule of
proximity shall be applied; in other words, the
ascendants nearest in degree shall inherit.
Rules
• If both ascendants are of equal degree in the
same line, they inherit per capita;
Q: A has 3 illegitimate children, B, C, and D. E and F
• Should there be more than one equal degree
are the illegitimate children of D. Estate is P900,000. D
belonging to the same line they shall divide the
predeceases A. Divide the estate.
inheritance per capita;
A: B and C each gets P300,000. E and F each gets
• should they be of different lines but of equal
P150,000.
degree, one-half shall pass to the paternal and
the other half to the maternal lines. In each line
Q: Suppose E and F were the legitimate children of D,
the division had be per capita.
would the answer be the same?
▪ In short, division is first by line, and then per capita
A: YES. “Descendants” in this Article refer to legitimate
w/in such line.
and illegitimate descendants, since the law does not
distinguish. (See Arts. 993 and 995).
Thus, if the decedent is survived only by A, paternal
grandfather, and B and C, maternal grandparents, 1/2
of the entire inheritance shall be given to A, while the Art. 990. The hereditary rights granted by the two
other half shall be given to B and C, which they shall preceding articles to illegitimate children shall be
divide per capita. transmitted upon their death to their descendants, who
shall inherit by right of representation from their
Reason for Art 987 2nd par. — There is no right of deceased grandparent.
representation in the ascending line. (Art. 972).
Right of Representation in the Illegitimate Line
A died intestate leaving P1 million. Surviving him are • The word “descendant” as used in these articles
his father, B; his grandfather, C (the father of B); and can refer to any kind .of descendant, whether
his grandfather, D (the father of A’s mother). Divide the legitimate or illegitimate
estate. B gets the whole P1 million. (Art. 986, 2nd par. • In other words, it is immaterial whether the
representative is legitimate or illegitimate; what is
SUBSECTION 3 material is that the person to be represented
ILLEGITIMATE CHILDREN (the decedent) is illegitimate.
• There must, therefore, be a distinction between
the right of representation when the person to be
Art. 988. In the absence of legitimate descendants or
represented is a legitimate person and the right of
ascendants, the illegitimate children shall succeed to
representation when the person to be represented
the entire estate of the deceased.
is an illegitimate person.
→ If the person to be represented is legitimate,
Illegitimate Children then it is indispensable that the representative
• The third in the order of intestate succession are must also be legitimate. Otherwise, there
illegitimate children. would be a violation of the prohibition stated
• It must be noted that even in the presence of in Art. 992.
legitimate children or descendants or legitimate → However, if the person to be represented is
parents or ascendants or the surviving spouse, illegitimate, then it is immaterial whether the
such children, under the principle of concurrence, representative is legitimate or illegitimate.
always participate in the division of the inheritance.
• Like legitimate children or descendants and Art 990 applies to:
legitimate parents or ascendants, they exclude ✓ Predecease
collaterals. ✓ Incapacity
✓ Disinheritance
Art. 989. If together with illegitimate children, there  Repudiation
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.

his father or mother; nor shall such children or relatives
inherit in the same manner from the illegitimate child.
Separation of Legitimate and Illegitimate Families.

The above article enunciates what is known as the
Q: B and C are A’s illegitimate children. D and E are “principle of absolute separation between the
the legitimate children of B. F is the legitimate child of legitimate family and the illegitimate family.”
C. B and C predeceased A, who later died leaving an
= Under this principle, an impassable barrier exists
estate of P1 million. Divide the property.
separating or dividing the members of the
A: F gets P500,000 in representation of C. D and E
legitimate family from those of the illegitimate
each gets P250,000 because together they represent
family. Hence, such illegitimate child cannot inherit
B.
by intestate succession from the legitimate
children or relatives of his father or mother; neither
Art. 991. If legitimate ascendants are left, the illegitimate can such legitimate children or relatives inherit in
children shall divide the inheritance with them, taking the same manner from the illegitimate child.
one-half of the estate, whatever be the number of the → Thus, applying this principle, it has been held
ascendants or of the illegitimate children. that natural children cannot represent their
natural father or mother with regard to the
Illegitimate Children Concurring With Legitimate inheritance coming from the legitimate
Ascendants ascendants of the latter. Neither can such
LP/A IC natural children inherit in their own right from
½ ½ their first cousins or from the other legitimate
relatives of their natural parents.
• The number of legitimate ascendants or
illegitimate children is immaterial
Q: A dies leaving B, his legitimate father, and C and D,

his (A’s) illegitimate children. Estate is P1million.
Divide.
A: B gets P500,000. C and D each gets P250,000. A has a legitimate child B, and an illegitimate child C.
B has a legitimate child D, and an illegitimate child E.
• This rule in intestate succession is different from C has a legitimate child F, and an illegitimate child G.
the legitimes mentioned in Art. 896 which states
that “Illegitimate children who may survive with Q: If B and C predecease A, and surviving are the four
legitimate parents or ascendants of the deceased grandchildren, will they inherit intestate from A?
shall be entitled to one-fourth of the hereditary A:
estate to be taken from the portion at the free • D can represent his father B, because a legitimate
disposal of the testator.” Art. 889, par. 1, states: child B can be represented by his own legitimate
“The legitime of legitimate parents or ascendants child D.
consists — of one-half of the hereditary estates of • E cannot represent B in the succession from A’s
their children and descendants.” estate. Reason: An illegitimate child (E) has no
• Observe that when there are illegitimate children right to inherit ab intestato from the legitimate
(and no legitimate children), the legitimate children and relatives (A) of his father (B) or vice
ascendants inherit half in intestate succession. versa.
When there are legitimate children, legitimate
ascendants are excluded. (Arts. 979 and 986). Art. 993. If an illegitimate child should die without issue,
• Notice also that although illegitimate children are either legitimate or illegitimate, his father or mother
placed third in the order of intestate succession, shall succeed to his entire estate; and if the children’s
the presence of the first two (legitimate filiation is duly proved as to both parents, who are both
descendants and ascendants) does not exclude living, they shall inherit from him share and share alike.
said illegitimate children. They are indeed
concurring intestate heirs, since they cannot be Art. 994. In default of the father or mother, an
deprived of their shares. illegitimate child shall be succeeded by his or her
surviving spouse, who shall be entitled to the entire
General Rule on Partial Intestacy
estate.
Charge the legacies, etc. to the intestate shares of
those given by the law (on intestate succession) MORE
than their respective legitimes, without however If the widow or widower should survive with brothers
impairing said legitimes. Moreover, the charging must and sisters, nephews and nieces, she or he shall inherit
be PROPORTIONATE to the amount in the intestate one-half of the estate, and the latter the other half.
share over and above that given by law as LEGITIME.
Art. 992. An illegitimate child has no right to inherit ab

intestato from the legitimate children and relatives of

Order of Intestacy in Illegitimate Filiation • Survivors: illegitimate brothers, sisters, nephews,
As stated previously, if the decedent is an illegitimate and nieces THEY GET ALL.
person, the order of intestate succession as far as his
hereditary estate is concerned is as follows: Brothers and sisters, nephews and nieces
Legitimate/Legitimated/Legally Adopted children and their In default of children or descendants, whether
legitimate descendants. legitimate or illegitimate, parents, and the surviving
spouse, the brothers and sisters, nephews and nieces,
Illegitimate children and their descendants, whether legitimate of the decedent shall succeed to the entire estate.
or illegitimate
Q: What is meant by the law when it speaks of brothers

Ilegitimate ParentsSurviving Spouse and sisters, nephews and nieces, as legal or intestate
heirs of an illegitimate child?
A:
Surviving Spouse
• When the law speaks of “brothers and sisters,
nephews and nieces,” as legal heirs of an
Illegitimate Brothers and Sisters; Nephews and Nieces illegitimate child, it refers to illegitimate brothers
and sisters as well as to the children, whether
legitimate or illegitimate, of such brothers and
State sisters.
• In default of brothers and sisters, nephews and
nieces, the law does not go any farther.
Illegitimate Parents
In default of children or descendants, whether • Other collaterals are not allowed to inherit by
intestate succession from the illegitimate child.
legitimate or illegitimate, the illegitimate parents or
Consequently, the entire estate shall pass to the
parents by nature shall succeed to the entire estate of
State.
the illegitimate child, without prejudice to the
concurrent rights of the surviving spouse.
SUBSECTION 4
It must be noted, however, that this right is subject to SURVIVING SPOUSE
proof of filiation.
→ In order that such parents will be able to Art. 995. In the absence of legitimate descendants and
inherit from their illegitimate child, it is ascendants, and illegitimate children and their
essential that the latter should have descendants, whether legitimate or illegitimate, the
recognized them either voluntarily or by surviving spouse shall inherit the entire estate, without
means of a final judgment of a competent prejudice to the rights of brothers and sisters, nephews
court (if this is possible). and nieces, should there be any, under Article 1001.
• If such a requirement is imposed upon
the illegitimate child in order that he will Surviving Spouse
be able to inherit from the presumed or • As already stated in previous articles, he or she
putative parent, there is no reason why it shall always inherit.
should not be imposed also upon the • The surviving spouse must be legitimate, for
parent in order that he will be able to common law marriages are not recognized in the
inherit from the child. Philippines.
• If the surviving spouse was the guilty party in the
It must also be noted that the succession to the estate case of a legal separation, she does not inherit as
of the illegitimate child does not go beyond the parents an intestate heir. (Art. 1002).
by nature. In other words, other ascendants are not • It will be observed that unlike in the law of the
considered as legal or intestate heirs of the legitimes, there is no provision in intestate
illegitimate child. [ascending line pertains only up to succession for the share of a surviving spouse
the parents] who married the decedent, when the latter was in
articulo mortis. And evidently, whether or not the
Surviving spouse marriage is in articulo mortis, the share of surviving
In default of children or descendants, whether spouse, if she alone survives, is the SAME.
legitimate or illegitimate, and the illegitimate parents,
the surviving spouse shall succeed to the entire estate,
without prejudice to the concurrent rights of brothers Art. 996. If a widow or widower and legitimate children
and sisters, nephews and nieces. or descendants are left, the surviving spouse has in the
succession the same share as that of each of the
Intestate Shares of Surviving Spouse children.
• Survivor: surviving spouse only — ALL
• Survivors: surviving spouse, brothers, sisters (the Surviving Spouse and Legitimate Descendants
illegitimate brothers and sisters) — 1/2 If the decedent is survived by the widow or widower
→ [NOTE: If there are nephews and nieces who and legitimate children or descendants, the share of
concur with the brothers or sisters, the former the widow or widower shall be the same as the share
inherit by right of representation.]. of each of the children.

It is here where the principle of concurrence is applied half shall be divided between the surviving spouse and
in full force. The surviving spouse is placed in the same the illegitimate children so that such widow widower
category as each of the legitimate children. shall have one-fourth of the estate, and the illegitimate
children the other fourth.
Consequently, if the decedent, for instance, is survived
by his widow and four legitimate children, and the Surviving Spouse, Legitimate Ascendants, and
inheritance is P60,000, the method of distribution Illegitimate Children.
would be merely to divide the P60,000 by five. The LP/A SS IC/D
result would be P12,000 for each, of the survivors. ½ ¼ ¼
If there is only one legitimate child concurring with the LP/A SS AC

surviving spouse, and there are no other relatives — ½ ¼ ¼
both will get equal intestate shares, in accordance with
the clear intent of the law to consider the spouse as a
Q: Suppose, however, that the decedent is survived by
child.
a legitimate parent, the surviving spouse and an
adopted child shall the legitimate parent be excluded
Art. 997. When the widow or widower survives with by the adopted child?
legitimate parents or ascendants, the surviving spouse A: NO. The reason behind this is that it would be most
shall be entitled to one-half of the estate, and the unfair to accord more successional rights to the
legitimate parents or ascendants to the other half. adopted, who is only related artificially by fiction of law
to the deceased, than those who are naturally related
Surviving Spouse and Legitimate Ascendants to him by blood in the direct ascending line.
LP/A SS
½ ½ Art. 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be
Art. 998. If a widow or widower survives with entitled to one-half of the inheritance and the brothers
illegitimate children, such widow or widower shall be and sisters of their children to the other half.
entitled to one-half of the inheritance, and the
illegitimate children or their descendants, whether Share of Surviving Spouse Concurring With
legitimate or illegitimate, to the other half. Brothers, Sisters, Nephews, and Nieces
B/S; Ne/Ni SS
Intestate Shares of Surviving Spouse Concurring ½ ½
With Illegitimate Children
IC/D SS Brothers and sisters do not concur with recognized
½ ½ illegitimate children of the deceased. In fact, the former
are EXCLUDED by the latter
Art. 999. When the widow or widower survives with
legitimate children or their descendants and Art. 1002. In case of a legal separation, if the surviving
illegitimate children or their descendants, whether spouse gave cause for the separation, he or she shall
legitimate or illegitimate, such widow or widower shall not have any of the right granted in the preceding
be entitled to the same share as that of a legitimate articles.
child.
Rules in Case of Legal Separation
Surviving Spouse and Legitimate and Illegitimate • This Article presupposes a legal separation
Descendants. (decreed by the court) and not a mere separation
• In distributing the estate, we must first satisfy the de facto.
legitime of the survivors. • It would seem that under this Article, giving cause
• If after satisfying the legitime of the legitimate for legal separation is not sufficient; there must be
children, the balance of 1/2 should not be sufficient a DECREE of LEGAL SEPARATION.
to cover the legitime of the surviving spouse and • A reconciliation puts aside the effects of legal
the illegitimate children, we shall then apply the separation.
rule stated in Art. 895. The legitime of the surviving
spouse must first be fully satisfied and what is left SUBSECTION 5
shall be divided equally among the illegitimate COLLATERAL RELATIVES
children.
• THEREFORE, the correct solution would be to Art. 1003. If there are no descendants, ascendants,
confine the total share of the illegitimate children illegitimate children, or a surviving spouse, the
to the free portion of the estate, after respecting collateral relatives shall succeed to the entire estate of
the widow’s legitime and also the legitime of the the deceased in accordance with the following articles.
legitimate children.
Collateral Relatives
Art. 1000. If legitimate ascendants, the surviving spouse • The collaterals referred to in this Article are
and illegitimate children are left, the ascendants shall intestate, but not compulsory heirs.
be entitled to one-half of the inheritance, and the other

• Among said collaterals, the nearer excludes the the only survivors all shall inherit in equal shares
farther. without distinction as to the origin of the property.
• A sister, even if only a half-sister, in the absence
of other sisters or brothers, or of children of Art. 1008. Children of brothers and sisters of the half-
brothers or sisters, EXCLUDES all other collateral blood shall succeed per capita or per stirpes, in
relatives, regardless of whether or not the latter accordance with the rules laid down for brothers and
belong to the line from which the property of the sisters of the full blood.
deceased came. (Lacerna, et al. v. Paurillo Vda.
de Corcino, L-14603, Apr. 29, 1961). Upon the Brothers and Sisters
other hand, collaterals cannot inherit in the Should the only survivors be brothers and sisters of the
presence of descendants. Hence, if there be a full blood, they shall inherit in equal shares or per
recognized natural child, the sister of the capita.
deceased is excluded. ✓ The same rule shall also apply should the only
• Collateral relatives shall succeed to the entire survivors be brothers and sisters of the half
estate in the absence of legitimate descendants, blood
legitimate ascendants, illegitimate children, and
the surviving spouse. Right of Representation in the Collateral Line
• When they concur with the surviving spouse only,  The right of representation in the collateral line
they are also excluded as a general rule. There is, does not extend to grandnephews and
however, an exception, and that is when brothers grandnieces. Hence, if a sister and nephews of the
and sisters or nephews and nieces concur in the deceased appeared to claim the inheritance, they,
succession. In such case, according to Art. 1001, as the nearest of kin, exclude such remote
1/2 of the estate shall be given to the surviving relatives as grandnephews and grandnieces.
spouse and the other 1/2 shall be given to the (Sarita v. Candia, 23 Phil. 443; Fuentes v. Cruz,
surviving spouse and the other 1/2 shall be given 36 O.G. No. 103, p. 1813).
to the brothers and sisters or nephews and nieces.
Brothers and Sisters, Nephews and Nieces
Principles in Inheritance of Collaterals B/S Ne/Ni
(1) In the first place, when the law speaks of collateral per capita per stirpes
relatives, it can only refer to those within the fifth in their own right by right of
degree. representation
(2) In the second place, where two or more collateral
relatives concur in the succession, the rule of
If the decedent is survived by A and B, brothers of the
proximity by virtue of which the nearest in
full blood, and D and E, children of C, another brother
degree shall exclude the more remotes ones is
of the full blood who had predeceased him, the
applicable.
inheritance shall be divided into three equal parts —
(3) In the third place, as an exception to the rule of
one part to be given to A, another to B, and the rest to
proximity, the right of representation is also
D and E in representation of their deceased father, C.
recognized, but it is a right which is extended
only to nephews and nieces.
If all of the brothers A, B and C had predeceased the
(4) And in the fourth place, where the survivors are of
decedent, the inheritance shall, of course, be given to
the same degree, the rule of preference by
D and E, which they shall divide per capita, but they
reason of relationship by the whole blood is
would be inheriting in their own right and no longer by
also recognized, but it is a rule which can be
right of representation. It must be remembered that the
applied only to brothers and sisters or nephews
only case where the right of representation may take
and nieces and not to other collaterals.
place in the collateral line is when nephews and nieces
of the decedent concur with the decedent’s brothers
Art. 1004. Should the only survivors be brothers and and sisters
sisters of the full blood, they shall inherit in equal
shares. ✓ The same rules shall also be applied should
brothers and sisters of the half blood survive
Art. 1005. Should brothers and sisters survive together together with nephews and nieces, who are the
with nephews and nieces, who are the children of the children of the decedent’s brothers and sisters of
decedent’s brothers and sisters of the full blood, the the half blood
former shall Inherit per capita, and the latter per
stirpes. However, if some of the survivors are brothers and
sisters of the full blood and the others are brothers and
Art. 1006. Should brothers and sisters of the full blood, sisters of the half blood, the rules that shall be applied
survive together with brothers and sisters of the half would then be different.
blood, the former shall be entitled to a share double that = In such case, the former shall be entitled to a share
of the latter. double that of the latter.
Art. 1007. In case brothers and sisters of the half blood, Thus, if the decedent is survived by A and B, brothers
some on the father’s and some on the mother’s side, are of the full blood, and by C and D, brothers of the half
blood, and the estate is P30,000, the distribution shall

be made in the proportion of 2:2:1:1. A shall be entitled reason of whole blood relationship shall be applied. In
to 2/6 of P30,000, or P10,000; B, 2/6 of P30,000, or other words, those of the full blood shall be entitled to
P10,000; C, 1/6 of P30,000, or P5,000; and D, 1/6 of a share double that of those of the half blood.
P30,000, or P5,000. Should the brothers and sisters
survive together with nephews and nieces, who are the
children of the decedent’s brothers and sisters who
predeceased him, such nephews and nieces shall also
inherit but by right of representation. Q: R and S, lawfully married, have 3 legitimate children,
A, B and C. T and U, lawfully married, have 2 legitimate
children M and N. R and U eventually die, and S and T
get married. L is the legitimate child of S and T. If L dies
intestate leaving P500,000 and the survivors are A, B,
C, M, and N, how much will each get?
A: Each gets P100,000 because each is a half-brother
of L.
In the above diagram, let us suppose that the
decedent, X, is survived by:
(1) A, a brother of the full blood; Art. 1009. Should there be neither brothers and sisters,
(2) D and E, nephews of the full blood, children of B, nor children of brothers or sisters, the other collateral
another brother of the full blood who had predeceased relatives shall succeed to the estate.
X; and
(3) F and G, nephews of the half blood, children of C, The latter shall succeed without distinction of lines or
a brother of half blood, who also had predeceased X. preference among them by reason of relationship by
the whole blood.
The decedent’s estate is P25,000. How shall it be
distributed? Inheritance by Other Collateral Relatives
• According to Art. 975, when children of one or • In every inheritance, the relative nearest in degree
more brothers and sisters of the deceased excludes the more distant ones, saving the right of
survived, they shall inherit from the latter by right representation when it properly takes place.
of representation, if they survive with their uncles → Thus, the presence of a half-sister excludes a
and aunts. collateral of a more remote degree.
• According to Art. 1005, should brothers and sisters • A decedent’s aunt may not succeed ab intestato
survive together with nephews and nieces, who so long as nephews and nieces of the decedent
are children of the decedent’s brothers and sisters survive, and are willing and qualified to succeed.
of the full blood, the former shall inherit per capita, → The reason is simple: although the aunt and
and the latter per stirpes. the nephews (or nieces) are both relatives of
• According to Art. 1006, should brothers and sisters the third degree, still the latter are preferred
of the full blood survive together with brothers and over the former in the order of intestate
sisters of the half blood, the former shall be entitled succession.
to a share double that of the latter. • Children of first cousins are not entitled to
represent. Therefore, if first cousins (4th degree)
In the light of these three provisions, the P25,000 shall concur with children, of predeceased or
be divided into three shares in the proportion of 2:2:1. incapacitated first cousins, said children do not
A shall be entitled to 2/5 of P25,000, or P10,000; D and inherit even if they belong to the fifth degree. The
E shall also be entitled to 2/5 of P25,000 or P10,000, nearer (4th degree relatives) excludes the farther
by right of representation; while F and G shall be (5th degree relatives).
entitled to only 1/5, or P5,000, by right of
representation.
Art. 1010.The right to inherit ab intestato shall not extend
beyond the fifth degree of relationship in the collateral
Consequently, the distribution shall be as follows:
line.
A ........................ P10,000, in his own right
D ........................ 5,000, by right of representation
E ........................ 5,000, by right of representation Succession Limited to the Fifth Degree
F ........................ 2,500, by right of representation Another change in this section on the order of intestate
G ........................ 2,500, by right of representation succession in the interest of national economy and
P25,000 social welfare, and in keeping with the underlying
philosophy of socialization of ownership of property, is
to limit the right of succession to the collateral relatives
Nephews and Nieces
within the fifth degree of relationship from the decedent
If the only survivors are nephews and nieces of the full
instead of the sixth degree
or of the half blood, such nephews and nieces shall
succeed to the entire inheritance in their own right.
In the absence of brothers and sisters or nephews and
Consequently, the division of the estate shall be per
nieces of the decedent, whether they be of the full or
capita.
half blood, other collateral relatives shall succeed to the
entire estate, subject to the rule of proximity and the
However, if some of them are of the full blood and the
rule that the right to inherit ab intestato shall not extend
others are of the half blood, the rule of preference by

beyond the fifth degree of relationship in the collateral
line “SEC. 3. Hearing and judgment. — Upon satisfactory
proof in open court on the date fixed in the order that
Hence, in default of collateral relatives within the fifth such order has been published as directed and that the
degree, the whole estate shall pass to the State. person died intestate, seized of real or personal
property in the Philippines, leaving no heir or person
SUBSECTION 6 entitled to the same, and no sufficient cause being
THE STATE shown to the contrary, the court shall adjudge that the
estate of the deceased in the Philippines, after the
Art 1011. In default of person entitled to succeed in payment of just debts and charges, shall escheat...”
accordance with the provisions of the preceding
Sections, the State shall inherit the whole estate. How Estate Inherited by the State is Distributed
Art. 1013. After the payment of debts and charges, the
The State personal property shall be assigned to the municipality
Hence, according to our theory of intestate succession, or city where the deceased last resided in the
the State is a legal heir called to the succession by Philippines, and the real estate to the municipalities or
operation of law as in the case of other legal heirs. cities, respectively, in which the same is situated.
Art. 1012. In order that the State may take possession of If the deceased never resided in the Philippines, the
the property mentioned in the preceding article, the whole estate shall be assigned to the respective
pertinent provisions of the Rules of Court must be municipalities or cities where the same is located.
observed.
Such estate shall be for the benefit of public schools,
Procedure for Escheat. and public charitable institutions and centers, in such
Requisites for Escheat. — It is clear from the municipalities or cities. The court shall distribute the
provisions of Sec. 1 of Rule 91 of the Rules of Court estate as the respective needs of each beneficiary may
that the following requisites must concur in order that warrant.
the escheat proceedings may be commenced:
(1) first, that the decedent dies intestate; The court, at the instance of an interested party, or on its
(2) second, that he dies seized of real and/or own motion, may order the establishment of a
personal property located in the Philippines; permanent trust, so that only the income from the
and property shall be used.
(3) third that he leaves no heir or person entitled
to such real and personal property
Art. 1014. If a person legally entitled to the estate of the
deceased appears and fi les a claim thereto with the
“SECTION 1. When and by whom petition filed. —
When a person dies intestate, seized of real or court within five years from the date the property was
personal property in the Philippines, leaving no heir or delivered to the State, such person shall be entitled to
person by law entitled to the same, the Solicitor the possession of the same, or if sold, the municipality
General or his representative in behalf of the Republic or city shall be accountable to him for such part of the
of the Philippines, may file a petition in the Court of First proceeds as may not have been lawfully spent.
Instance of the province where the deceased last
resided or in which he had estate, if he resided out of Rule If Legal Heir Files a Claim
the Philippines, setting forth the facts, and praying that Reason for the law: It may be that a relative, like a
the estate of the deceased be declared escheated. brother, who has priority over the estate, appears only
after the proper escheat proceedings have been made.
[NOTE: “Escheat” is of French-Norman derivation,
meaning accident or chance; the word as used today Period within which to file a claim — within 5 years from
refers to succession by the State to property the date the property was delivered to the State.
considered “ownerless” (bona vacantia) for lack of
competent legal heirs. Escheat, being an attribute of The Article is practically reproduced in Sec. 4, Rule 91
sovereignty, rests on the principle that ultimately it is of the Rules of Court. Thus, under said Sec. 4, if a claim
the State that owns all property within its territorial is not made within a period of 5 years from the date the
jurisdiction. judgment in the escheat proceedings is made, the
claim shall be barred forever
“SEC. 2. Order for hearing. — If the petition is sufficient
in form and substance, the court, by an order reciting
the purpose of the petition, shall fi x a date and place
for the hearing thereof, which date shall be not more
than six (6) months after the entry of the order, and
shall direct that a copy of the order be published before
the hearing at least once a week for six (6) successive
weeks in some newspaper of general circulation
published in the province, as the court shall deem
best.’’

DIVISION OF INHERITANCE
LEGITIME INTESTATE SUCCESSION
Any class alone = ENTIRE INHERITANCE
ART. 888 LEGITIMATE CHILDREN AND ART. 978 and 980 LEGITIMATE CHILDREN AND
DESCENDANTS DESCENDANTS
½ LC/LD ½ FP LC/LD will get entire inheritance

ART.889 LEGITIMATE PARENTS OR ASCENDANTS ART.985 LEGITIMATE PARENTS OR ASCENDANTS
½ LP/LA ½ FP ½F ½M
or or
¼F ¼M ½ FP
F/ M will get entire inheritance
ART. 892 ART. 996

ONE LEGITIMATE CHILD/DESCENDANT ONE LEGITIMATE CHILD/DESCENDANT
CONCURRING W/ THE SURVIVING SPOUSE CONCURRING W/ THE SURVIVING SPOUSE
½ LC/LD ¼ SS ¼ FP ½ LC/LD ½ SS
TWO or MORE LEGITIMATE TWO or MORE LEGITIMATE

CHILDREN/DESCENDANTS CONCURRING W/ THE CHILDREN/DESCENDANTS CONCURRING W/ THE
SURVIVING SPOUSE SURVIVING SPOUSE
LC = ½ of Legitime
Share of each LC = ½ divided by the number of Children Consider SS as 1LC
The share of the Surviving Spouse is equal to the share
of 1 Child.
with SURVIVING SPOUSE with SURVIVING SPOUSE
½ LP/LA ¼ SS ¼ FP ½ LP/LA ½ SS
ART.894 ILLEGITIMATE CHILDREN with SURVIVING ART.998 ILLEGITIMATE CHILDREN with SURVIVING
SPOUSE SPOUSE
½ LP/LA ½ SS ½ LP/LA ½ ICD ½ SS
FC ART.983 ILLEGITIMATE CHILDREN with

LEGITIMATE CHILDREN
½ of share
½ LC/LD of each FP ½ of share
LC ½ LC/LD of each
LC
and ILLEGITIMATE CHILDREN and ILLEGITIMATE CHILDREN
½ LP/LA ¼ IC ¼ FP ½ LP/LA ½ IC
ART.897 and 898 SURVIVING SPOUSE with ART.999

LEGITIMATE CHILDREN OR DESCENDANTS and If more than 1 LC:
ILLEGITIMATE CHILDREN (1) LC = ½ of Legitime [Share of each LC = ½ divided
by the number of Children]
If more than 1 LC: (2) The share of the Surviving Spouse is equal to the
(1) LC = ½ of Legitime [Share of each LC = ½ divided share of 1 LC
by the number of Children] (3) Share of each IC = ½ of share of each LC
(2) The share of the Surviving Spouse is equal to the *if insufficient: reduction shall be borne by the IC
share of 1 LC *if there is excess: follow the concurrence theory – 2:1
(3) Share of each IC = ½ of share of each LC
If only 1 LC:
If only 1 LC: (1) LC = ½ of Legitime [Share of each LC = ½ divided
(1) LC = ½ of Legitime [Share of each LC = ½ divided by the number of Children]
by the number of Children] (2) The share of the Surviving Spouse is ¼ (ART 292)
(2) The share of the Surviving Spouse is ¼ (ART 292) (3) Share of each IC = ½ of share of each LC
(3) Share of each IC = ½ of share of each LC *if insufficient: reduction shall be borne by the IC
*if there is excess: follow the concurrence theory – 2:1

ART.899 SURVIVING SPOUSE with LEGITIMATE ART. 1000 SURVIVING SPOUSE with LEGITIMATE
PARENTS OR ASCENDANTS and ILLEGITIMATE PARENTS OR ASCENDANTS and ILLEGITIMATE
CHILDREN CHILDREN
1/8 1/8 ½ LP/LA ¼ IC ¼ SS

½ LP/LA ¼ IC
SS FP
ART.900 SURVIVING SPOUSE ALONE ART.995 SURVIVING SPOUSE ALONE
GENERAL RULE
½ SS ½ FP SS will get entire inheritance
EXCEPTION: Articulo Mortis + Decedent dies w/in 3

months
1/3 SS 2/3 FP
EXCEPTION TO THE EXCEPTION: Articulo Mortis +

Decedent dies w/in 3 months BUT living together for 5
years
½ SS ½ FP
ART.901 and 902 ILLEGITIMATE CHILDREN w/ no ART.988 ILLEGITIMATE CHILDREN w/ no other
other compulsory heirs compulsory heirs
(anak sa labas)
IC will get entire inheritance
½ IC ½ FP
ART.903 ESTATE LEFT BY AN ILLEGITIMATE

CHILD
(anak sa labas si testator)
Parents of Illegitimate Child + Descendants (legitimate

or illegitimate) of Illegitimate Child
½ C/D ½ FP LC/LD will get entire inheritance
Rule of exclusion applies: Illegitimate Parents will not
inherit
Parents of Illegitimate Child who leaves neither

legitimate/illegitimate descendants, nor a surviving
spouse, nor legitimate/illegitimate children
½ IP ½ FP IP will get entire inheritance
Parents of Illegitimate Child concurring with Surviving

Spouse
¼ IP ¼ SS ½ FP ½ IP ½ SS
ART.994
SURVIVING SPOUSE with BS/NeNi
BS → per capita
NeNi → per stirpes
½ BS/NeNi ½ SS
ART.1006
B/S of the full blood = 2 (double the share of HB)
B/S of half blood = 1 (half the share of FB)
Illegitimate brothers or sisters = no share
Illegitimate nephews or nieces = no share;
NOTE: Other collateral relatives upto 5th degree shall
inherit only in the absence of BS/NN

PROVISIONS COMMON TO TESTATE & INTESTATE SUCCESSION WILLS & SUCCESSION (2019)
Articles 1015 to 1040: Right of Accretion | Capacity to Succeed Vice Dean Castillo-Taleon
CHAPTER IV Accretion in Both Testamentary and Legal
PROVISIONS COMMON TO TESTATE Succession
AND INTESTATE SUCCESSIONS TESTAMENTARY LEGAL SUCCESSION
✓ predecease* ✓ incapacity*
SECTION 1 ✓ incapacity* ✓ repudiation
RIGHT OF ACCRETION ✓ repudiation
* without prejudice to the
Art. 1015. Accretion is a right by virtue of which, when * representation to the right of representation.
two or more persons are called to the same inheritance, legitime takes
devise or legacy, the part assigned to one who precedence over  predecease
renounces or cannot receive his share, or who died accretion. there is really no vacant
before testator, is added or incorporated to that of his portion, and hence, no
co-heirs, co-devisees, or co-legatees. accretion for the
survivors inherit in their
own right
Concept of Accretion
Accretion
= is a right based on the presumed will of the
deceased that he prefers to give certain properties In testamentary succession, shall the vacant share
to certain individuals, rather than to his legal heirs. pass to the substitute by right of substitution which is
= the implied institution of a co-heir, co-devisee, co- based on the testator’s will, or shall it pass to the
legatee to a portion of the same inheritance left children or descendants of the original heir by right of
vacant by another co-heir, co-devisee, co-legatee representation, or shall the share accrue to the co-heirs
by reason of predecease, incapacity, or by right of accretion?
repudiation. • If the heir who dies before the testator or who
cannot accept his share because of incapacity is a
The right of accretion, according to the definition compulsory heir, the only conflict that can possibly
given in the above article, occurs when two or more arise is one between the substitute and the co-
persons are called to the same inheritance, legacy or heirs with regard to the free portion, because of the
devise, but, by reason of: fact that the legitime shall pass to the children or
(1) predecease, or descendants of the compulsory heir by right of
(2) incapacity, or representation. This conflict is of course resolved
(3) repudiation, in favor of the substitute because substitution is
→ a vacancy is created in the inheritance. based on the expressed will of the testator, while
o The effect of such a situation is that the vacant accretion is not.
portion is added or incorporated to that of his • However, if no substitute has been designated by
co-heirs, co-legatees, or co-devisees. the testator, the free portion shall accrue to the
coheirs, provided that the conditions prescribed in
accretion may take place also: Art. 1016 are present.
(4) If a suspensive condition is not fulfilled (this is • If on the other hand, the heir happens to be a
a form of “incapacity”). voluntary heir, it is clear that he cannot transmit
(5) If there is failure to identify one particular heir, any right whatsoever to his own children or
devisee, or legatee (ineffectiveness of descendants. Hence, if no substitute has been
institution) but the others can be identified. designated by the testator, the whole vacant share
shall pass to the co-heirs by right of accretion.
Requisites for Accretion
(1) unity of object (one inheritance) In intestate succession, the rules are much simpler.
(2) plurality of subjects (two or more to inherit • If a conflict arises between the descendants of the
ordinarily) heir who dies before the decedent or who cannot
(3) vacant portion (ex: repudiation of his share by accept his share and the coheirs, it is always
one of those called to inherit) resolved in favor of the former. The right of
(4) acceptance (of the portion accruing — by the representation in such case is always superior to
person entitled) the right of accretion.
• In case of repudiation, however, the vacant share
Accretion is a RIGHT (Art. 1015), not an obligation, and shall pass to the co-heirs by right of accretion.
may therefore be accepted or repudiated by those
entitled. This is true in both testate and legal How Accretion May be Avoided
succession. Accretion, which follows the decedent’s implied desires
may be avoided by the deceased himself —
The right takes place both in testamentary and in (1) By expressly designating a substitute (naturally,
intestate succession. It is based on the presumed will the express desire is superior to the implied
of the decedent. desire).
(2) By expressly providing that although accretion
Accretion, whether in testamentary or legal succession may take place, still he does not want accretion to
refers only to the FREE PORTION. occur, that is, he desires no accretion in favor of
those who ordinarily would be entitled to it.
(Castan).

NOTE: Even if by law, accretion cannot take place, still As a consequence of the first requisite, the following
the testator is allowed to expressly provide in his will circumstances are, therefore, necessary:
for accretion, but this would really be a reciprocal (1) first, plurality of subjects; and
substitution. (2) second, unity of object.
T makes a will giving a particular car to A and B. If A “Plurality of subjects” merely means that two or more
repudiates his share, the whole car goes to B. persons must be instituted as heirs, legatees or
devisees.
T, in his will, gives the first floor of his house to A, and
“Unity of object” means that such person must be
the second floor to B. If A repudiates, B ordinarily does
called to the same inheritance, legacy or devise, or to
not get the first floor, because here, there has been an
earmarking or specification of determinate property. the same portion thereof, pro indiviso.
However, if T in his will provided that in case of In other words, such persons must be instituted jointly
in the testator’s will in such a manner that a state of
repudiation of either A or B, the other gets the property,
indivision or co-ownership is created among them with
this “accretion” is perfectly alright although this is really
a case of reciprocal substitution.]. respect to the same inheritance, legacy or devise, or
with respect to the same portion thereof.
Art. 1016. In order that the right of accretion may take It is immaterial whether the testator designates the
place in a testamentary succession, it shall be aliquot or fractional parts or portions which will be given
necessary: to each of them or not so long as a state of indivision
(1) That two or more persons be called to the same or co-ownership exists among them with respect to the
inheritance, or to the same portion thereof, pro indiviso; same inheritance, legacy or devise or with respect to
and the same portion thereof.
(2) That one of the persons thus called die before the Using the language of the Code, so long as the
testator, or renounce the inheritance, or be designation made by the testator “does not identify the
incapacitated to receive it. shares of each by such description as shall make each
heir the exclusive owner of determinate property,” the
Accretion in Testamentary Succession right of accretion shall still take place.
In order that the right of accretion will take place in
testamentary succession, the following requisites or Consequently, the words “one-half for each” or “in
conditions must concur: equal shares” or any others shall not exclude the right
(1) first, that two or more persons must have of accretion.
been called in the testator’s will to the same → As a matter of fact, even where the heirs, legatees
inheritance, legacy or devise, or to the same or devisees are instituted to unequal aliquot or
portion thereof, pro indiviso; and fractional parts or portions of the same inheritance,
(2) second, that there must be a vacancy in the legacy or devise or of the same portion thereof,
inheritance, legacy or devise as a result of since such inequality of distribution does not make
predeceased, incapacity or repudiation. each heir, legatee or devisee “the exclusive owner
of determine property,” the right of accretion shall
Requisites (De Leon) still take place.
plurality of Several persons are called
subjects collectively to the succession Thus, if the testator states in his will that he is leaving
equality of They are of the same degree his entire estate to A, B, and C, in such a way that “they
degree shall inherit in equal shares,” or “that A shall inherit ½,
unity of They are called to the same B, ¼, and C, the remainder,” it is clear that if the testator
object inheritance or to the same portion dies, a state of indivision or co-ownership shall exist
thereof among the instituted heirs with respect to the same
pro indiviso There is no special designation of inheritance.
right specific shares → In other words, the designation of the shares of
existence The share of one of or more is left each heir will not result in making each of them the
of vacant vacant by reason of predecease, exclusive owner of determinate property.
portion repudiation, or incapacity → Consequently, if a vacancy is created in the
acceptance The share left vacant is accepted by inheritance by reason of predecease, or
of vacant the person or persons entitled thereto incapacity, or repudiation, the portion or share
share which is rendered vacant shall accrue to the co-
heirs.
T instituted A and B as his own heirs. If A predeceases → However, if the property bequeathed consists of
T, the share of A accrues to B. Thus, B inherits half by money or fungible goods, according to the second
institution, and half by accretion. paragraph of Art. 1017, there shall be a right of
accretion only if the share of each heir or legatee
Pro indiviso — means undivided (into determinate or is not “earmarked.” This provision resolves some
specific properties). of the doubts which existed under the old Code.
o “Earmarked” simply means that there
Plurality of Subjects; Unity of Object must be a particular designation or a

physical segregation from all others of the first floor, and B, the second floor, there will be no
the same class. accretion.
Consequently, if the shares of the legatees in the Q: T gave A 1/3 of a car, and B the other 2/3. Can there
money or fungible goods are not particularly be accretion here even if the parts be unequal?
designated or physically segregated from each other, A: Under the old Civil Code, no, because the fact that
the right of accretion shall take place; the portion are unequal shows more or less “a special
→ conversely, if the shares of the legatees are designation of parts” implying the intent of the testator
particularly designated or physically segregated to exclude accretion. (CASTAN).
from each other the right of accretion shall not take
place. Under the new Civil Code however, it is believed that
there can be accretion, since the mere fixing of aliquot
Thus, if the testator bequeaths the balance of his parts does not necessarily make the property
current account at a certain bank to A, B, and C, in such “determinate” or specific, for we still cannot ascertain
a way that A shall be entitled to 1/2, B, 1/4, and C, 1/4, which particular section or portion of the car, A and B
it is clear that if a vacancy is created by reason of were being made the exclusive owners thereof.
predecease, incapacity or repudiation in any of the
designated shares, such vacant share shall accrue to Examples of Par. 2. (money or fungible goods):
the co-legatees. Rules:
→ The reason is that the shares given to each of the • if EARMARKED — no accretion
legatees are not earmarked. • if not earmarked — there can be accretion
It would be different, however, if the testator states in
Examples:
his will that he is giving to A the P20,000 which he had
deposited at a certain bank, to B, the P10,000 which is T gave A his money in the left hand drawer of his desk,
kept in his safe at his office, and to C, the P10,000 and B, his money in the right hand drawer. There is
which he had buried under his house. earmarking, therefore no accretion.
→ Since the shares given to each of the legatees are
earmarked, accretion shall not take place in case T gave P200,000 as legacy to A and B such that A is
any of them is rendered vacant by predecease, going to get 3/4 and B 1/4. There can be accretion for
incapacity or repudiation. there is no earmarking.
Vacancy in Inheritance Q: T gave A a legacy of P30,000 and B, a legacy of

In addition to plurality of subjects and unity of object, it P40,000. Can there be accretion if for example A
is also essential in order that accretion shall take place repudiates?
in testamentary succession that there is a vacancy in A: Yes, because there has been no earmarking. For
the inheritance, legacy or devise. out of the total cash of P70,000 for example, no one
This vacancy may be caused by any of the following: can definitely pinpoint which particular money bills
(1) first, predecease of one of the instituted heirs, were being given to A, and which, to B.
legatees or devisees;
(2) second, incapacity of one of the instituted BAR QUESTION
heirs, legatees or devisees; Q: Mariano Reyes, in his last will and testament among
(3) third, repudiation by one of the instituted heirs, other things, provided as follows: “I bequeath to my
legatees or devisees; nephews A, B and C whatever credit balance there
(4) fourth, nonfulfillment of the suspensive may be in my current account in the Citibank at the time
condition attached to the institution of an heir of my death, in the proportion of one-third for each of
or the designation of a legatee or devisee; and them.” A died before the testator leaving X, his only son
(5) fifth, void or ineffective testamentary as heir. When Mariano Reyes died, there was a credit
dispositions balance of P30,000 in his account. Now, the P10,000
that would have corresponded to A under the will had
Art. 1017. The words “one-half for each” or “in equal he survived, is claimed:
shares” or any others which, though designating an (a) by X as A’s heir
aliquot part, do not identify it by such description as (b) by B and C as accretion of their legacies
shall make each heir the exclusive owner of (c) by the children of the testator, as the latter’s legal
determinate property, shall not exclude the right of heirs.
accretion. If you were the judge, to whom would you adjudicate
the said sum and why?
In case of money or fungible goods, if the share of each
heir is not earmarked, there shall be a right of accretion A: Applying the formula of ISRAI (discussed in previous
chapters), and assuming that the legitime of the
Non-Earmarking testator’s children have not been impaired, our answer
Example of Par. 1: is this:
T gave A and B one half each of a particular house. • Institution cannot apply, for A is dead.
There can be accretion here. But if A had been given • Neither can substitution apply for no substitute has
been expressly appointed.

• Is representation by X as A’s heir proper? NO, Exception: There are, however, two instances under
because a voluntary heir or legatee who our Code which would justify accretion in intestate
predeceases the testator cannot be represented; succession not only in case of repudiation but even in
i.e., he transmits no rights to his own heirs. (For case of predecease or incapacity.
that matter, any voluntary heir cannot be (1) The first is when the right of representation
represented.) takes place and the share of one of the
• Inasmuch as the requirements of accretion are representatives is rendered vacant.
present here (gift of a portion of the inheritance pro → In such case, the vacant share passes to the co-
indiviso; predecease of one), B and C can claim in representatives by right of accretion and not to all
equal shares the share of A. of the co-heirs in their own right. This is logical,
• It follows therefore that the intestate heirs cannot because, otherwise, the rule enunciated in Art. 974
claim by intestacy said share, for accretion is of the Code to the effect that the division of the
preferred over intestacy. As has been stated by estate in such case shall be made in such a
the Supreme Court, intestate succession to a manner that the representatives shall not inherit
vacant portion can only occur when accretion is more than what the person represented would
impossible. (Torres v. Lopez, 49 Phil. 504). have inherited would be nullified.
(2) The second is when the decedent is survived
only by grandparents in both paternal and
Art. 1018. In legal succession the share of the person
maternal lines and the share of one of them is
who repudiates the inheritance shall always accrue to
rendered vacant.
his co-heirs.
→ In such case, the vacant share passes to the other
grandparent belonging to the same line by right of
Accretion in Intestate Succession accretion and not to all of the grandparents in their
In legal or intestate succession, since by the very own right. This is likewise logical, because,
nature of the succession the legal heirs are called by otherwise, the rule enunciated in the second
the law to the same inheritance, pro indiviso, only one paragraph of Art. 987 of the Code to the effect that
requisite is essential in order that the right of accretion the estate in such case shall be divided equally
shall take place: There must be a vacancy in the between paternal and maternal lines would also be
inheritance. nullified
→ This vacancy may be cause by either predecease,
incapacity or repudiation.
Q: A and B are the decedent’s (no will) brothers and
only surviving relatives. If A repudiates his share, B will
✓ REPUDIATION
get it. Question: Suppose in the above example, A has
It must be observed, however, that Art. 1018 speaks
a child C, should C get A’s portion?
only of repudiation and not of predecease and
A: No, for one who renounces cannot be represented.
incapacity.
→ The reason for this is that only in case of
repudiation can there be a vacancy in intestate Q: A and B are the decedent’s (no will) brothers. A has
succession, and accretion in intestate succession a child C. If A is incapacitated, will his share accrue to
can only take place where a vacancy exists. B?
A: No, there will be no accretion, because C will get
General Rule: It cannot exist in case of predecease or said share by representation. In the collateral line
incapacity (intestate), children of brothers or sisters are entitled to
represent.
INCAPACITY
It is believed however that the Article applies also in [NOTE: It would have been different had this been a
case of incapacity, without prejudice to the right of case of testamentary succession, for here, the nephew
representation. (Manresa: see also Art. 1015). But cannot represent. Reason: A voluntary heir cannot be
whether it applied to incapacity or not, is really represented.].
immaterial, for whether there will be accretion or
inheritance in their own right by intestacy, the net Art. 1019. The heirs to whom the portion goes by the right
answer or result would be the SAME. of accretion take it in the same proportion that they
[Taleon: There is the right of accretion if the vacancy inherit.
occurs by reason of incapacity by predecease when
heir is in the ascending line because here there is no Art. 1020. The heirs to whom the inheritance accrues
right of representation] shall succeed to all the rights and obligations which the
heir who renounced or could not receive it would have
 PREDECEASE had.
Remember too that Art. 1018 does not speak of
“predecease,’’ for in such a case, there is no vacant
Effect of Accretion
portion.
The most important effect of accretion is that the share
→ The reason is, in predecease, the surviving co- or portion which is rendered vacant by predecease,
heirs succeed in their own right while the incapacity or repudiation is added or incorporated to
descendants of heir who died before the decedent, the share of the co-heirs, co-legatees or co-devisees.
inherit by right of representation.

However, in TESTAMENTARY SUCCESSION, a TESTAMENTARY
certain qualification must be made. Where the share SUCCESSION INTESTATE
which is rendered vacant happens to be the share of a Free SUCCESSION
compulsory heir, only that part of the share which is Legitime
Portion
taken from the disposable free portion shall pass to the predecease R A A
co-heirs by right of accretion. IS IS IS
→ The legitime is not included. This is clear from the incapacity same same
provision of Art. 1021. disinheritance same - -
→ In case of predecease or incapacity, the legitime repudiation IS A A
shall pass to the children or descendants of the Summary
compulsory heir by right of representation. A. In testamentary succession:
o If there are no children or descendants, 1. Legitime:
the other co-heirs shall succeed to it in (a) In case of predecease of an heir, there is
their own right. representation if there are children or descendants; if
→ In case of repudiation, even if there are children or none, the others inherit in their own right.
descendants of the compulsory heir who had (b) In case of incapacity of an heir, the results are the
repudiated his inheritance, the right of same as in predecease.
representation cannot take place because of the (c) In case of disinheritance of an heir, the results are
principle that an heir who repudiates his the same as in predecease.
inheritance cannot be represented. (d) In case of repudiation by an heir, the other heirs
o Consequently, whether there are children inherit in their own right.
or descendants or not, the other co-heirs
shall succeed to it in their own right and 2. Disposable free portion:
not be right of accretion. Accretion takes place when requisites stated in Art.
1016, Civil Code, are present;
In LEGAL OR INTESTATE SUCCESSION, on the (1) That two or more persons be called to the same
other hand, the rule is different. The entire share which inheritance, or to the same portion thereof, pro indiviso;
is rendered vacant shall pass to the co-heirs by right of
and
accretion.
(2) That one of the persons thus called die before the
testator, or renounce the inheritance, or be
Division in Case of Accretion
Whether the succession is testamentary or intestate; if incapacitated to receive it.
the right of accretion takes place, the heirs to whom the but if such requisites are not present, the other heirs
vacant share or portion is assigned shall divide it in the inherit in their own right.
same proportion that they inherit
B. In intestate succession:
Division in Case of Conflict of Rights 1. In case of predecease, there is representation if
Probably, the most complicated aspect of the law on there are children or descendants; if none, the other
succession is when there is a conflict in the succession heirs inherit in their own right.
among three rights: 2. In case of incapacity, the results are the same as in
(1) first, the right of representation, predecease.
(2) second, the right of accretion, and 3. In case of repudiation, there is always accretion.
(3) third, the right of legal or intestate succession.
Transmission of Rights and Obligations.
This conflict exists when there is a vacancy in the Q: Can the co-heirs to whom the vacant share will
inheritance as a result of either predecease, incapacity accrue repudiate their shares in the accretion? is the
or disinheritance of, or repudiation by, a co-heir, co- right of accretion voluntary or compulsory?
legatee or codevisee. According to one view, since each heir has a potential
right not only to be the sole owner of that share to which
The law, however, becomes simple if we are going to he is called to inherit, but also of the entire inheritance,
look at it from the point of view of the effects of it is but logical that when the share of an heir becomes
predecease, incapacity, disinheritance, or repudiation vacant, the co-heirs, in order to comply with the
in both testamentary and intestate succession. expressed or presumed will of the decedent, must
necessarily accept their share in the portion which is
vacant.
✓ According to a second view, since the acts of

acceptance and repudiation are free and
voluntary, and since the right of accretion is a right
and not an obligation, it is but just that the co-heirs
should be granted the option of accepting or
repudiating their shares in the accretion.
According to a third view, a distinction must be made

between testamentary and intestate succession. In the
former, since the share which passes to a co-heir by

right of accretion is separate and distinct from the share
which passes to him by force of the testator’s will, it is
but proper that when he accepts his inheritance as an
instituted heir, he is free to accept or repudiate his T has two legitimate children, A and B. His estate was
share in the accretion. In the latter, however, because worth P1 million. In his will, T gave A and B one-fourth
of the principle that there can be no partial acceptance each, and X was given one-half. X has a child Y.
or repudiation, once a co-heir accepts his share in the
inheritance, he must also accept his share in the Q: If X predeceases T, who gets his share?
accretion. A: Not Y, for a voluntary heir (X) cannot be
represented. On the other hand, A and B cannot get it
Proportional Sharing of Property Received by by accretion for they were not given any part of the free
Accretion (Art 1019) portion. Intestacy then results, and A and B will get X’s
Example: A testator gave X, 1/2 of an undivided house, share as intestate heirs.
Y, 1/3, and Z, 1/6. If X repudiates his share, Y and Z
will share in X’s portion in the proportion of 1/3 to 1/6 Q: If B on the other hand predeceases T, who gets B’s
(2 to 1) because this was the proportion in which they share?
had been instituted. A: A alone; not by accretion, but in his own right for the
same is his legitime.
This rule is similar to the rule of sharing in a
substitution. (Art. 861). Note that aside from this Art. 1022. In testamentary succession, when the right of
similarity, accretion and substitution are similar in that accretion does not take place, the vacant portion of the
both refer only to the FREE PORTION; both refer to a instituted heirs, if no substitute has been designated,
vacancy caused by predecease, incapacity, or shall pass to the legal heirs of the testator, who shall
repudiation; and in both cases, the portion is generally receive it with the same charges and obligations.
received with the same charges and conditions.
Effect If Accretion Does Not Take Place
Art. 1021. Among the compulsory heirs the right of In testamentary succession, when there is a vacancy
accretion shall take place only when the free portion is in the inheritance, but the right of accretion does not
left to two or more of them, or to any one of them and to take place because the first requisite stated in Art. 1016
a stranger. for accretion ( That two or more persons be called to the
same inheritance, or to the same portion thereof, pro
Should the part repudiated be the legitime, the other indiviso) is not present, the share or portion which is
coheirs shall succeed to it in their own right, and not by rendered vacant shall pass to the legal heirs of the
the right of accretion. testator in accordance with the rules of intestate
succession, who shall receive it with the same charges
Accretion among Compulsory Heirs and obligations.
In testamentary succession, when the heir who dies
before the testator, or who is incapable of succeeding, However, if a substitute has been designated in the
or who repudiates his inheritance, is a compulsory heir, testator’s will, it shall pass to such substitute, who
the right of accretion shall pertain only to the free shall receive it with the same charges and obligations.
portion given to such heir but not to the legitime.
Q: T gave P10 million (deposited at the Citibank) to A
What will, therefore, happen to such legitime? The and P10 million (deposited at the Bank of the Philippine
answer depends upon the cause for the vacancy. Islands) to B. A and B are T’s friends. No substitute was
• If the vacancy was due to PREDECEASE OR appointed. S, a sister of the testator, was given nothing.
INCAPACITY, and the heir who died before the If A repudiates his share, who will get it?
testator or who cannot receive his share has A: B will not get, there being no accretion since there
children or descendants of his own, such children was an earmarking of share. Therefore, S, the sole
or descendants shall be entitled to the legitime intestate heir, gets A’s share.
by right of representation.
o If there are no children or descendants, it
Art. 1023. Accretion shall also take place among
shall be given to the legal heirs of the
devisees, legatees and usufructuaries under the same
testator in accordance with the rules of
intestate succession. conditions established for heirs.
• On the other hand, if the vacancy was due to
REPUDIATION, the legitime shall be given to the
legal heirs of the testator in accordance with the
rules of intestate succession regardless of
whether the compulsory heir who had repudiated
his share in the inheritance has children or
descendants of his own or not. This rule, which is
enunciated in the second paragraph of Art. 1021,
is in conformity with the principle that an heir who
repudiates his inheritance cannot be represented.

FILLING UP OF VACANT PORTION
VACANCY IN THE LEGITIME

reason: where vacant portion will go: basis
(1) Children or descendant - by representation
PREDECEASE
(2) Co-heirs (same degree) - in their own right
INCAPACITY, or
(3) Other intestate heirs - according to the order of
DISINHERITANCE
intestate succession
(1) Co-heirs (same degree) - in their own right
(2) If they all repudiate, heirs next in degree - in their own right
REPUDIATION
(3) Other intestate heirs - according to the order of
VACANCY IN THE FREE PORTION
(1) substitute
PREDECEASE
(2) co-heirs - by right of accretion
INCAPACITY, or
(3) other intestate heirs - according to the order of
REPUDIATION
*disinheritance is not applicable to the free portion*
VACANCY IN INTESTATE SUCCESSION
(1) children or descendants - by representation
PREDECEASE
(2) co-heirs (same degree) - in their own right
or
(predecease); right of accretion
INCAPACITY
(incapacity)
(1) co-heirs (same degree) - always by accretion
(2) If they all repudiate, heirs next in degree - in their own right
REPUDIATION
(3) other intestate heirs
(4) State
*disinheritance is applicable only to testamentary succession*

SECTION 2 representative must be living at the
CAPACITY TO SUCCEED BY WILL moment the succession opens.
OR BY INTESTACY
second, that such heir, legatee or devisee must not be
Art. 1024. Persons not incapacitated by law may incapacitated by law to succeed.
succeed by will or ab intestato. • There is no exceptio, even if the law says “except
in case of representation, when it is proper.’’
The provisions relating to incapacity by will are equally • Reason: Even in case of representation, the
applicable to intestate succession. representative must already be alive or at least
conceived at the time the succession opens. He
Art. 1025. In order to be capacitated to inherit, the heir, himself must be capable of succeeding the
devisee or legatee must be living at the moment the decedent. (Art. 973). If the law were to be strictly
succession opens, except in case of representation, and grammatically followed, an absurdity in
when it is proper. uncertain or unstable or suspended ownership can
arise
A child already conceived at the time of the death of the
decedent is capable of succeeding provided it be born Incapacity to Succeed
later under the conditions prescribed in Article 41. Incapacity to succeed may be either absolute or
relative.
Absolute incapacity
Capacity to Succeed
Under our Code, there is a disputable presumption that = is the incapacity of a person, whether natural or
juridical, to succeed any person in any form with
every person, whether natural or juridical, can succeed
regard to any property.
either ex testamento or ab intestato. This is evident
from the provision of Art. 1024. = (can never inherit from anybody regardless of
circumstances)
Consequently, in order to show that a person does not
have the necessary capacity to succeed, it must be The following are absolutely incapacitated to succeed:
proved that he falls under an incapacity expressly (1) first, those who are not living or in existence at the
provided for in the Code. time of the death of the decedent, subject to the
exceptions provided for in Arts. 1026, 1029 and
Capacity is, therefore, the general rule, while incapacity 1030 of the Code;
is the exception. (2) second, those who cannot be identified, such as
uncertain persons under Art. 845; and
Capacity to Succeed / Passive Testamentary (3) third, individuals, associations and corporations
Capacity = It is the ability to inherit and retain property not permitted by law to inherit.
obtained mortis causa.
Relative incapacity
Requisites = is the incapacity of a person, whether natural or
In order that a person can inherit either by will or by juridical, to succeed by reason of a special relation
intestacy, the following requisites must concur: which he has to the decedent, or to other persons,
(1) first, that the heir, legatee or devisee must be living or to the property disposed of
or in existence at the moment the succession = (cannot inherit only from certain persons or certain
opens; properties, but can inherit from others or certain
(2) second, that such heir, legatee or devisee must other properties)
not be incapacitated by law to succeed.
There are three kinds of relative incapacity:
first, that the heir, legatee or devisee must be living or (1) because of possible undue influence. (Art. 1027).
in existence at the moment the succession opens; (2) because of public policy and morality. (Art. 1028
read together with Art. 739).
• For civil purposes, the foetus is considered born if (3) because of unworthiness. (Art. 1032).].
it is alive at the time it is completely delivered from (4) incapacity by operation of law
the mother’s womb. However, if the foetus had an a. incapacity of the guilty spouse to inherit from
intra-uterine life of less than seven months, it is not the innocent spouse if there is a decree of
deemed born if it dies within twenty-four hours legal separation, or
after its complete delivery from the maternal b. incapacity of the adopter to inherit from his
womb. (Art. 41, Civil Code).]. adopted child
• It must be noted that the first requisite is not c. incapacity of illegitimate children and
absolute in character. There are certain well- legitimate relatives of the decedent to inherit
known exceptions. These exceptions are from each other.
regulated by the provisions of Arts. 1026, 1029,
and 1030 of the Code.
Art. 1026. A testamentary disposition may be made to
o On the other hand, the right given to the
representative to inherit by right of the State, provinces, municipal corporations, private
representation does not really constitute corporations, organizations, or associations for
an exception because, even in such religious, scientific, cultural, educational, or charitable
case, it is essential that the purposes.

All other corporations or entities may succeed under a No. 6 is excluded because the individuals, associations
will, unless there is a provision to the contrary in their and corporations referred to are absolutely and not
charter or the laws of their creation, and always subject relatively incapacitated to succeed.
to the same.
Disqualification of Priest or Minister
Dispositions in Favor of Entities Reason for the law: to safeguard the rights of the heirs
• Some of the organizations referred to in this Article who may be defrauded by the sinister and undue
are juridical persons; others are not. In the case of influence which may be exercised by some priests or
the latter, they are allowed to inherit, not because ministers over a dying man.
they have juridical existence, but because of this
Article — precisely. The exercise of undue influence insofar as the
• In the case of juridical persons, it is not enough disposition in their favor is concerned is
that they have been conceived by certain CONCLUSIVELY PRESUMED, that is, the
disqualification exists without the necessity of proving
individuals; it is essential that they have complied
actual undue influence.
with all the requirements for the existence of
juridical persons. → Thus, the incapacity cannot be cured by proof that
• Comment of the Code Commission: “The undue influence was not indeed exercised.
purposes enumerated in the above-mentioned
Article are in accord with the civic spirit and In view of the reasons for the law, it is evident that the
philantrophy of modern times.” will must have been made DURING the “last
• Private juridical persons cannot of course inherit in illness,” for it is there that undue influence could have
legal succession. been exercised.
Therefore:
(1) If the testamentary disposition was made
Art. 1027. The following are incapable of succeeding:
BEFORE, same is valid for there could not have
(1) The priest who heard the confession of the testator been any undue influence.
during his last illness, or the minister of the gospel who (2) If the testamentary disposition was made LONG
extended spiritual aid to him during the same period; AFTER the “last illness,” such that there was time
(2) The relatives of such priest or minister of the gospel to reflect on the wisdom of the testamentary
within the fourth degree, the church, order, chapter, provision, the disqualification does NOT apply.
community, organization, or institution to which such
priest or minister may belong; Requisites for the Disqualification: (Jurado)
(3) A guardian with respect to testamentary (1) first, that the priest must have heard the
dispositions given by a ward in his favor before the final confession of the testator during the latter’s last
accounts of the guardianship have been approved, even illness, or that the minister must have extended
if the testator should die after the approval thereof; spiritual aid to him during the same period; and
nevertheless, any provision made by the ward in favor (2) second, that the testator must have executed the
of the guardian when the latter is his ascendant, will during such last illness and not before.
descendant, brother, sister, or spouse, shall be valid;
(4) Any attesting witness to the execution of a will, the Requisites for the Disqualification: (De Leon)
spouse, parents, or children, or any one claiming under (1) the will in question was executed during the last
such witness, spouse, parents, or children; illness and after the confession or extension of
(5) Any physician, surgeon, nurse, health officer or spiritual aid;
druggist who took care of the testator during his last (2) the testator dies of the illness wherein the
illness; confession was made or the spiritual aid was
(6) Individuals, associations and corporations not executed; and
permitted by law to inherit (3) the disposition in the will is in favor of said priest,
minister or his relatives within the 4th degree or the
church, order, etc. to which said priest or minister
Incapacity Based on Undue Influence or Interest.
belongs.
There are three fundamental characteristics which can
be applied to the different incapacities or
What is meant by “last illness”?
disqualifications enumerated from No. 1 to No. 5 of the
= it must be the illness of which the testator died
above article.
(1) In the first place, these incapacities or = is that of which the testator died, or the one
disqualifications are based either on the possibility immediately preceding it (as when death came
of undue influence or on interest. because of an accident), if the testator did not
(2) In the second place, they are possible only in have any opportunity to revoke the testamentary
testamentary succession. This is clear from the dispositions concerned.
article itself.
(3) In the third place, they are not only relative in However, the fact that the latter died from some other
character, but they are also partial in the sense cause does not necessarily exclude the application of
that if the heir who is incapacitated or disqualified the disqualification.
is a compulsory heir, only the free portion given to Thus, let us take up the case of a testator who has
him is affected, but not his legitime. already been pronounced by his physicians as dying
from cancer. He dies not from the cancer, but from

some other cause, such as an accident. The Disqualification of Guardians
disqualification in such a case shall still apply. In order that a guardian shall be disqualified to succeed
Hence, what is really essential is that there must be an from his ward, it is essential that the will of the ward
imminent or impending danger of the illness being must have been executed BEFORE THE
the last as far as the testator is concerned at the time APPROVAL of the final accounts of guardianship.
he executed the will. The disqualification applies even if the ward should die
after the approval thereof.
The disqualification DOES NOT EXTEND —  However, it does not apply if the guardian is
 to the LEGITIME an ascendant, descendant, brother, sister, or
 to INTESTACY spouse of the testator.
 to dispositions which do not extend a
TESTAMENTARY BENEFIT (like appointment as ✓ The guardian referred to may be the guardian of
executor; or payment of debts or obligation) the person or of the property since both can
exercise undue influence.
Q: A testator during his last illness confessed to a priest
who happened to be his only son. In his will, made Said guardians are not disqualified to inherit if:
shortly after the confession, the testator gave his son- (1) The will was made AFTER the approval of the
priest P600,000 out of an estate worth P1 million. The “final accounts.”
remaining P400,000 was given to a friend. Then the final accounts = they are those that terminate the
testator died. How much, if any, will the son-priest financial responsibility of the guardian. They are
inherit? given to the court when the guardian is removed,
A: He gets P500,000 as legitime, but not the P100,000 or when he resigns, or when there is no need for
which is part of the free portion. It is unfair to deprive the guardianship to continue
him of the legitime since he is entitled to this, not by (2) The guardian is a relative (ascendant,
virtue of the will, but by operation of law. The P100,000 descendant, brother, sister, or spouse).
will accrue in favor of the friend, since the requirements
for accretion are present. Hence, the friend gets a total Q: In his will, T gave G, his guardian, a legacy. At the
of P500,000. time the will was executed, the final accounts of the
guardianship had not yet been approved. Three
Q: Suppose the deceased who had confessed to his months afterwards, the final accounts were approved.
son-priest had died intestate, how much will the son Two months later, T died. Will G get the legacy?
inherit? A: No, because the law disqualifies him (G) “even if the
A: The whole P1 million, not as a voluntary or testator should die after the approval of the final
testamentary heir, but as an intestate heir. Note that in accounts.” The exception is when G is one of the
the problem given, he is the only legal heir. He inherits relatives mentioned in the law.
in this capacity, for after all, intestacy goes by operation
of law. Of course, if the son had prevented the father Q: A testator gave a legacy to his guardian’s daughter.
from making any will, he would be incapacitated, not At the time the will was made, the final accounts had
because of this provision, but because of unworthiness not yet been approved. Is the legacy valid?
A: Yes, the legacy is valid, for the law does not
Under paragraph (2), the disqualification of priests and disqualify the guardian’s relatives (unlike the rule in the
ministers of the gospel is extended to their relatives case of the priest and the minister). But of course, if the
within the fourth degree as well as to the church, legacy had been given to the daughter only to enable
order, chapter, community, organization, or the guardian to later on get the benefit of the
institution to which they may belong. inheritance, said legacy would be null and void not
→ The reason for extending the disqualification is of because of Art. 2027, no. 3, but because of Art. 1031
course the possibility of undue influence. which says that “a testamentary provision in favor of a
 It must be observed, however, that the law disqualified person, even though made under the guise
does not include among the persons of an onerous contract, or made thru an intermediary,
disqualified the spouse of the priest or shall be VOID.”
minister. Hence, if the beneficiary is the wife
of the minister of the gospel who extended Disqualification of Witnesses
spiritual aid to the testator during the latter’s Unlike the others, it must be observed that the basis of
last illness, she would not be disqualified. the disqualification of an instrumental witness, or of his
Otherwise, we would be reading into the law spouse, parents, or children, or of anyone claiming
what is not found there. Besides, capacity to under such witness, spouse, parents or children is not
succeed is the general rule, while incapacity the possibility of undue influence but interest.
to succeed is the exception. Consequently,
the rules on incapacity must be strictly In other words, the fact that the beneficiary is an
construed attesting witness or that he is the spouse, parent, or
→ The relatives here are those by consanguinity. child of one of the attesting witnesses or that he is
→ Note that although 5th degree relatives inherit by claiming under such witness, spouse, parent, or child
intestacy, the disqualification in this paragraph will be sufficient to disqualify him.
extends only to the fourth degree
The disqualification, however, is not absolute. Under
Art. 823 of the Code, such disqualification does not

apply “if there are three other competent witness” to the (1) Any person with whom the testator was guilty of
execution of the will. adultery or concubinage at the time of the making
of the will; [yung kabit di pwede mag mana]
Disqualification of Physicians or Nurses (2) Any person found guilty of the same criminal
Any physician, surgeon, nurse, health officer or offense as the testator, where the disposition is the
druggist who took care of the testator during his last consideration thereof; [both yung instituted heir at
illness is also disqualified to succeed by will. testator hindi pwede mag mana sa isa’t isa] and
(3) Any public officer or his spouse, descendant, or
The position of the physician or nurse who took care of ascendant, where the disposition is given by
the testator during his last illness is very similar to that reason of the office of such public officer.
of the priest or minister of the gospel in paragraph (1)
of the article under discussion. Consequently, what had In the first, previous criminal conviction is not
been previously stated with regard to the meaning of necessary, while in the second, it is indispensable.
“last illness” can also be applied here. The These disqualifications are based on good morals and
disqualification, however, is not extended to the public policy. They are applicable only in testamentary
relatives of the physician or nurse, or to the succession.
organization or institution to which such physician or
nurse may belong. Furthermore, they are not only relative in character, but
they are also partial in the sense that if the heir who is
Furthermore, unlike the disqualification of guardians in disqualified is a compulsory heir, the incapacity shall
paragraph (3), here there are no exceptions. Does this apply only to the free portion given to him, but not to his
mean that if the physician or nurse who took care of the legitime.
testator during the latter’s last illness happens to be his
spouse, ascendants, descendant, brother, or sister, the Q: A and B committed murder and were duly
disqualification shall be applied? NO. If the physician imprisoned. In A’s will, he gave B a legacy in
or nurse who took care of the testator during his last consideration of B’s cooperation in their mutual, if
illness is his spouse, ascendant, or descendant, the infamous, undertaking. Is B qualified to receive the
disqualification specified in paragraph (5) cannot be legacy? A: No. (Art. 1028; Art. 739).
applied.
[Taleon: whether compulsory heir or not yung physician
Q: A cabinet official, because he had already gained
or nurse, the incapacity shall still apply]
prestige in his office, gave L, a friend, a legacy. Is the
legacy valid?
Requisites of Disqualification: (Jurado) A: Yes, provided that L is not otherwise incapacitated.
(1) the will or disposition in their favor was made Notice here that the legacy was made by, and not to,
during the last illness and after the “care” by them
the cabinet member. The prohibition therefore does not
had commenced
apply.
(2) they “took care” of the testator — (this
presupposes a continuing or regular caring, and
not an isolated service) Art. 1029. Should the testator dispose of the whole or
part of his property for prayers and pious works for the
Requisites for the Disqualification: (De Leon) benefit of his soul, in general terms and without
(1) the will in question was executed during the last specifying its application, the executor, with the court’s
illness and after taking care of the testator; approval shall deliver one-half thereof or its proceeds
(2) the physician, surgeon, nurse, etc. took care of the to the church or denomination to which the testator may
testator during such illness; belong, to be used for such prayers and pious works,
(3) the testator dies of that illness; and and the other half to the State, for the purposes
(4) the disposition in the will is in favor of the mentioned in Article 1013.
physician, surgeon, nurse, etc.
Disposition for Prayers and Pious Works
Individuals, Associations, and Corporations not In order that the rule stated in the above article can be
permitted by law to inherit applied, it is necessary that the following requisites
(a) This refers to absolute, not relative incapacity. must concur:
(b) “Individuals” — like abortive infants. (1) first, that the testator must have disposed of the
(c) The prohibition must have been imposed by law. whole or part of his estate for prayers and pious
Note the phrase “not permitted by law to inherit.” works for the benefit of his soul;
(2) second, that the disposition must be in general
Art. 1028. The prohibitions mentioned in Article 739, terms without specifying its application.
concerning donations inter vivos shall apply to
testamentary provisions. Once both of these requisites will concur, the executor
or administrator of the estate, with the court’s approval,
Incapacity Based on Morality or Public Policy shall deliver one-half thereof to the church or
By virtue of the provision of the above article, which denomination to which the testator may belong, to be
incorporates by reference the prohibitions mentioned in used for prayers and pious works, and the other half to
Art. 739 of the Code, the following are also disqualified the State, for the purposes mentioned in Art. 1013 of
to succeed: the Code.

But if he imposes a charge upon one of the heirs, or Therefore, the question — as to who really are the poor
legatees, or devisees to use a certain property or a — is a judicial question.
certain amount for prayers and pious works for the
benefit of his soul, or if he specifies the application of Art. 1031. A testamentary provision in favor of a
the property, such as when he state that one-half or disqualified person, even though made under the guise
one-fourth of his estate shall be used for prayers and
of an onerous contract, or made through an
masses dedicated to our Lady of Perpetual Help every
intermediary, shall be void.
Wednesday for a period of ten years from the time of
his death, Art. 1029 is no longer applicable.
Consequently, the will of the testator must be Dispositions in Favor of a Disqualified Person
complied with literally. Purpose of the Article — to prohibit the testator from
violating indirectly what he cannot violate directly.
Q: If testator says: “I want my children to give P100,000
How the interposition of a third party may be done:
every year to the church for masses for my soul,” will
(1) if the disposition is disguised as an onerous
half of the amount go to the State?
contract.
A: No, for here the disposition is not in general terms.
(2) if fictitious debts are ordered paid.
(3) if an intermediary is interposed (for him later on to
Art. 1030. Testamentary provisions in favor of the poor give to the incapacitated person).
in general, without designation of particular persons or
of any community, shall be deemed limited to the poor Q: T wants to give a legacy to L whom the testator knew
living in the domicile of the testator at the time of his had attempted to kill him. So T interposed F with
death, unless it should clearly appear that his intention instruction to give to L. Is L qualified to get the legacy?
was otherwise. A: Yes, because even a direct legacy to L is valid,
considering that this act of giving is an implied
The designation of the persons who are to be condonation of the unworthy act. See Art. 1033 which
considered as poor and the distribution of the property in part provides that “the causes of unworthiness shall
shall be made by the person appointed by the testator be without effect if the testator had knowledge hereof
for the purpose; in default of such person, by the at the time he made the will.”
executor; and should there be no executor, by the
justice of the peace, the mayor, and the municipal NOTE: Therefore, the phrase “disqualified person”
treasurer, who shall decide by a majority of votes all refers not to one incapacitated by reason of
questions that may arise. In all these cases, the unworthiness (Art. 1032) but one incapacitated either
approval of the Court of First Instance shall be absolutely, or by reason of possible undue influence
necessary. (Art. 1027), or by reason of morality. (Art. 1028)
The preceding paragraph shall apply when the testator Art. 1032. The following are incapable of succeeding by
has disposed of his property in favor of the poor of a reason of unworthiness:
definite locality. (1) Parents who have abandoned their children or
induced their daughters to lead a corrupt or immoral
Dispositions in Favor of the Poor life, or attempted against their virtue.
The Article applies if the disposition is in favor of: (2) Any person who has been convicted of an attempt
(a) the poor in general (par. 1). against the life of the testator, his or her spouse,
(b) the poor of a definite locality (par. 3). descendants, or ascendants;
(3) Any person who has accused the testator of a crime
Unless clearly appearing otherwise, only the poor in the for which the law prescribes imprisonment for six
testator’s domicile at death should be considered. years or more, if the accusation has been found
groundless;
Who Designates the Poor? (4) Any heir of full age who, having knowledge of the
(1) First, the person appointed for the purpose violent death of the testator, should fail to report it to an
(2) If none — the executor officer of the law within a month, unless the authorities
(3) If no executor — then three people (by majority have already taken action; this prohibition shall not
vote): apply to cases wherein, according to law, there is no
a. justice of the peace (now a municipal or obligation to make an accusation;
metropolitan trial court judge) (5) Any person convicted of adultery or concubinage
b. mayor
with the spouse of the testator;
c. municipal treasurer
(6) Any person who by fraud, violence, intimidation, or
undue influence should cause the testator to make a
Q: Under the Rules of Court, should not the court will or to change one already made;
appoint an administrator with a will annexed in the
(7) Any person who by the same means prevents
absence of an executor, for the purpose stated in this
another from making a will, or from revoking one
article?
already made, or who supplants conceals, or alters the
Q: All questions, even if already decided by the people
concerned, are subject ultimately to final determination latter’s will;
by the Court. The law uses the word “approval.” (8) Any person who falsifies or forges a supposed will of
the decedent.

Incapacity Due to Unworthiness in this case — even if he would be subsequently
There are three fundamental characteristics which can convicted by final judgment.
be applied to the different incapacities which are
enumerated in the above article. (3) Any person who has accused the testator of a crime
(1) In the first place, they are based on offenses for which the law prescribes imprisonment for six
committed by the disqualified person against the years or more, if the accusation has been found
decedent which render him unworthy to succeed. groundless;
(2) In the second place, they are applicable not only • For the accusation to be groundless, there must
in testamentary succession, but also in legal or be a definite acquittal, and not one which is
intestate succession. based merely on “reasonable doubt.”
(3) In the third place, although they are relative in • Thus, if the acquittal is because of reasonable
character, they are also total in the sense that if doubt, there was some ground for the accusation,
the heir who is disqualified is a compulsory heir, and therefore incapacity does not arise. (Javier v.
the incapacity shall apply not only to the free Lucero, L-6706, Mar. 29, 1954).
portion given to him but even to his legitime.
(4) Any heir of full age who, having knowledge of the
Unlike the incapacities referred to in Arts. 1027 and violent death of the testator, should fail to report it to an
1028, incapacity by reason of unworthiness is
officer of the law within a month, unless the authorities
applicable not only in testamentary succession, but
have already taken action; this prohibition shall not
also in legal or intestate succession.
apply to cases wherein, according to law, there is no
Most of the acts of unworthiness enumerated in Art. obligation to make an accusation;
Requirements:
1032, such as those stated in paragraphs (1), (2), (3),
(1) The heir (legatee or devisee) must be of FULL
(5), and (6), are also grounds for disinheritance.
AGE (at least 21).
Consequently, what had been stated under Arts. 919,
(2) He must have knowledge of the VIOLENT DEATH
920, and 921 with regard to these offenses as grounds
(one that is caused by crime) of the testator (or
for disinheritance are also applicable here.
decedent).
(3) There is failure to report such death within a month
An heir incapacitated by reason of unworthiness, even
UNLESS the authorities have already taken action
if he be a compulsory heir, loses ALL rights to inherit
(4) There is an OBLIGATION to make the accusation.
from the deceased. Thus, he loses not only the
legitime, but also that which would have appertained to
This incapacity shall not apply to cases wherein,
him had he been capacitated. This is of course without
according to law, there is no obligation to make an
prejudice to the right of representation, when proper.
accusation.
(2) Any person who has been convicted of an attempt
(5) Any person convicted of adultery or concubinage
against the life of the testator, his or her spouse,
with the spouse of the testator;
descendants, or ascendants;
In paragraph (5), it must be noted that the heir who is
• This paragraph requires a “conviction by final
incapable of succeeding by reason of unworthiness is
judgment.”
the person who is convicted of adultery or
• Hence, an acquittal on any ground, even that of concubinage with the spouse of the decedent.
“reasonable doubt,” does not result in incapacity.  The spouse is not included.
• But the conviction need not be done before the
testator’s or decedent’s death. It is enough that Hence, as far as the law is concerned, the husband or
the heir be convicted later on. Thus, the law wife who is convicted of either adultery or concubinage
states that to determine the qualification of the is not unworthy to inherit from the decedent.
heir, the rendition of the final judgment must be
awaited. In other words, although conviction be The only time when such husband or wife cannot
after the death, the fact of conviction and its effects inherit is when the offended spouse will act positively
retroact to the time of the decedent’s death. either by securing a decree of legal separation or by
• If the heir be pardoned by the Chief Executive, he disinheriting him or her.
is still incapacitated, for what is important is that he
had been convicted by final judgment. But if the In paragraphs (6), (7), and (8), it must also be noted
heir has been given an amnesty (before final that actually there are six kinds of offenses connected
judgment), he would be qualified. with the execution or revocation of wills which the law
• If the heir should die before final judgment is considers as acts of unworthiness. These offenses are:
pronounced, the fact remains that he is NOT (1) causing the testator to make a will; *
convicted, hence, he should still be capacitated (2) causing the testator to change one already
(as long as he does not predecease the testator). made; *
• If the heir made the attempt or even the killing itself (3) preventing the testator to make a will; *
only AFTER the death of the testator (as when he (4) preventing the testator from revoking one
attempted to kill or actually killed the testator’s already made;*
father one day after the testator’s death) the heir (5) supplanting, concealing, or altering the
would still be capacitated to inherit from the testator’s will; and
testator. Reason: He was not incapacitated at the (6) falsifying a supposed will of the decedent.
time of the testator’s death. It does not matter —

*It is evident that it is only the first, second, third, and against him, the result would be different. There would
fourth where it is necessary that fraud, violence, then be a pardon within the meaning of Art. 1033. The
intimidation, or undue influence must be proved in effects of the act of unworthiness are erased altogether
order that the heir responsible is incapacitated to
succeed by reason of unworthiness. Rules for Condonation
• If at the time he made the will, testator ALREADY
In the others, such proof is no longer necessary KNEW of the causes of unworthiness, the mere
because the very act itself signifies fraud on the part of fact of instituting the person concerned, or giving
the heir responsible him a devise or legacy, is an IMPLIED
CONDONATION.
Art. 1033. The causes of unworthiness shall be without • If knowledge comes ONLY AFTER the execution
effect if the testator had knowledge thereof at the time of the will, CONDONATION must be in WRITING
he made the will, or if, having known of them (public or private).
subsequently, he should condone them in writing.
A son tried to kill his father, and went to prison for the
Pardon of Acts of Unworthiness crime. Knowing this, the father made a will giving said
Since acts of unworthiness within the meaning of Act. son the entire estate. There were no other compulsory
1032 are offenses directed against the decedent, only heirs. Will the son inherit the whole estate? Yes, the
the decedent himself and no other can erase the cause of his unworthiness shall be without effect since
effects of such acts of unworthiness. the father had knowledge thereof at the time the will
was made. Here, we have an instance of a pardon by
He can do this by pardoning the offense either implication.
expressly or impliedly.
EXPRESS PARDON IMPLIED OR TACIT [NOTE:
PARDON In the preceding example, if the father had made the
= when the decedent = when the testator, with will prior to the crime, the son will not inherit anything.
condones the act of knowledge of the act of He loses even his right to the legitime. (Art. 1035, par.
unworthiness in writing unworthiness, executes 1). The only way to erase the effect of the incapacity
a will instituting the would be for the testator (the father) to condone the act
person who has in writing.
committed the offense
as an heir Suppose the father had died without a will, will the son
can take place in either can only take place in inherit? ANS.: No, inasmuch as the incapacity also
testamentary or testamentary obtains in intestate succession. (1 Gomez, 354). Had
intestate succession succession the father desired his son to inherit, he should have
cannot be revoked revoked when the condoned the act in writing. (Art. 1033).].
testator revokes the will
or the institution The testator’s wife is convicted of an attempt against
his life. Subsequently, he executes a will expressly
PARDON RECONCILIATION disinheriting his wife. Later, there is a reconciliation
unilateral act bilateral act requiring the between the two, but the testator dies without changing
concurrence of the or revoking the will. Can the wife inherit from her
offender husband?
→ The fact that there is a reconciliation between the ✓ According to one view, the wife cannot inherit from
decedent and the unworthy heir does not her husband because, although the subsequent
necessarily mean that the effects of the act of reconciliation between her and the decedent has
unworthiness are erased. the effect of rendering the disinheritance
→ Under our Code, a subsequent reconciliation ineffectual in accordance with Art. 922 of the
between the offender and the offended person Code, it cannot have the effect of erasing the act
deprives the latter of the right to disinherit, and of unworthiness. Under Art. 1033 of the Code, the
renders ineffectual any disinheritance that may effects of acts of unworthiness can be erased only
have been made. It cannot, however, erase the by either express or implied pardon, and certainly,
effects of an act of unworthiness. under the facts stated in the problem, there is no
→ In order to do so there must be a pardon, which pardon, whether express or implied.
may be either express or tacit, in conformity with
the form prescribe by Art. 1033. According to a second view, the wife can inherit from
her husband because from the moment that the
testator executed a will disinheriting his wife, the law on
Thus, if a son of the decedent has committed an act of
disinheritance governs and not the law on incapacity.
unworthiness, the mere fact that before the death of the
Consequently, the provision of Art. 922 of the Code
decedent there was a reconciliation between him and
regarding the effect of reconciliation is applicable and
his son does not mean that the effects of the latter’s act
not the provision of Art. 1033 regarding the effect of
of unworthiness are erased. But if the decedent, before
pardon.
his death, had condoned the offense of his son in
writing, or if he had executed a will instituting his son
as an heir, with knowledge of the offense committed

Effect of Presidential Pardon There are, however, three exceptions to this rule:
If an unworthy heir is pardoned by the President, he is (1) In the first place, in the case of those who may be
still incapacitated to inherit, unless the pardon was disqualified under Nos. (2), (3), and (5) of Art.
given because of proven innocence (as when 1032, or No. 2 of Art. 739, it will be necessary to
somebody else turns out, after final judgment, to have wait until final judgment is rendered;
been the guilty party). [NOTE: Service of sentence (2) in the second place, in the case of those who may
does not erase incapacity.]. be disqualified under No. (4) of Art. 1032, it will be
necessary to wait for the expiration of the month
Q: After his son had attempted to kill him and had been allowed for the report; and
duly convicted therefor, a testator instituted his friends (3) in the third place, if the institution of heirs, or the
in a will, without providing anything for his son. Is there legacy or devise is conditional, the time of the
an implied pardon? compliance with the condition shall also be
A: No, because the son was not given anything in the considered.
will. It is not the making of the will that condones; it is → The third exception refers to an institution of
the fact of providing something in the will in favor of the heir, or a legacy or devise which is subject to
unworthy son that works as an implied condonation. a suspensive condition. In such case, the law
requires that the heir, legatee or devisee must
Q: Is there a “preterition” inasmuch as there was no have the necessary capacity to succeed not
express disinheritance? only at the time of the death of the decedent,
A: While technically, there might be a “preterition” but also at the time of the fulfillment of the
(unless the son had received something previously by condition. This rule is logical because when
way of donations inter vivos or had been the grantee of the institution, legacy or devise is subject to a
a remission), it is submitted that this situation is similar suspensive condition, the heir, legatee or
to a case of preterition where the preterited heir devisee actually acquires a hope or
predeceases the testator. Thus, it is believed that the expectancy which is protected by the law from
institution of heirs in this case will remain effective the very moment of the death of the decedent
without prejudice to the right of representation. — a hope or expectancy which is finally
converted into a perfected right from the
NOTE: moment the condition is fulfilled.
• If an implied condonation is made in a VOID or
REVOKED will, it is as if there was no Art. 1035. If the person excluded from the inheritance by
condonation. Therefore, the incapacity remains. reason of incapacity should be a child or descendant of
• An express revocation is irrevocable provided, the decedent and should have children or descendants,
there was no vitiated consent. A contrary rule the latter shall acquire his right to the legitime.
would be contrary to good morals.
• Art. 1033 is applicable only to incapacity by reason The person so excluded shall not enjoy usufruct and
of UNWORTHINESS, and, therefore, does not administration of the property thus inherited by his
apply to Arts. 1027 and 1028.]. children.
Art. 1034. In order to judge the capacity of the heir, Incapacitated Compulsory Heir Can Be
devisee or legatee, his qualification at the time of the Represented
death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it

shall be necessary to wait until final judgment is
rendered, and in the case falling under No. 4, the
expiration of the month allowed for the report. Q: A has 3 legitimate children, B, C, and D. B has 2
children E and F. A made a will giving each of his 3
If the institution, devise, or legacy should be conditional children equal shares in his estate of P600,000. If B
the time of the compliance with the condition shall also attempts to kill A and is convicted therefor, how much,
be considered. if any, will E and F get?
Time to Determine Capacity A: B’s legitime is only P100,000 (1/3 of half of the
In general, capacity is determined at the moment of estate). Hence, E and F will each get P50,000. There
the death of the decedent. is no right of representation with reference to the free
→ The reason for the rule is that it is only then that portion. (Art. 970; Art. 856, par. 2). B cannot enjoy the
the property and transmissible rights and usufruct and administration of the P100,000 given to
obligations of the decedent are actually his children. (Art. 1035, par. 2). [Observe that a living
transmitted to those who are called to succeed person may be represented. This is so in case of:
either by will or by operation of law. (a) incapacity (Art. 1035)
(b) disinheritance (Art. 923).].
→ It is, therefore, logical that such persons must have
the necessary capacity to succeed at such time.
Note that Art. 1035 says that the representatives get
the unworthy heir’s legitime. This is because there is

no representation in this case with reference to the free ▪ The same principle is also applied in legal or
portion. The free portion may be given: intestate succession. If the legal heir who has
• to the substitute, if any committed the act of unworthiness should
• to the co-heirs, in case of intestacy, if accretion is have children or descendants of his own, the
NOT proper. latter shall be entitled to the entire share
which is rendered vacant, provided, of course,
Upon the other hand, in case of complete intestacy, the that the right of representation can properly
right of representation covers the entire intestate share take place.
of the unworthy heir.] ▪ If there are no children or descendants who
can represent him, then the vacant share shall
Effect of Incapacity Upon Compulsory Heirs be given to those who are entitled thereto by
If the heir who is incapable of succeeding is a right of accretion.
compulsory heir, whether or not his right to his legitime
is affected shall depend upon the cause of his Art. 1036. Alienations of hereditary property, and sets of
incapacity. administration performed by the excluded heir, before
the judicial order of exclusion, are valid as to third
If the incapacity is due to ANY OF THE CAUSES persons who acted in good faith; but the co-heirs shall
SPECIFIED IN EITHER ART. 1027 OR ART. 739, only have a right to recover damages from the disqualified
the free portion given to the heir is affected, but not heirs.
his legitime.
→ In other words, he is incapacitated to succeed Acts performed by Excluded Heir before Judicial
only as a voluntary heir or as a legatee or Order of Exclusion
devisee, but not as a compulsory heir. This is Alienations of hereditary property by the disqualified
clear not only from the phraseology of the law, heir before he is excluded from the succession by a
but also from the very nature and basis of the judicial order of exclusion are valid as to third
incapacity itself. persons who acted in good faith.
Thus, if the testator had executed a will during his last
illness, and in the will, he bequeaths P10,000 to the In other words, a purchaser in good faith and for value
priest who heard his confession, and it so happens that is protected, but the co-heirs who are ultimately
such priest is his own son, certainly, the right of such adjudged the real heirs of the decedent shall have to
son to the legitime which the law has reserved for him recover the damages from the disqualified heir.
is not affected. While it is true that under No. 1 of Art.
1027, he is incapacitated to succeed because there is Hence, after the decedent’s death, if one of the alleged
always the possibility of undue influence, yet such heirs and known to be such, sells his undivided share
reason cannot possibly be applied to the legitime which in the inheritance to a third person who is unaware of
is reserved for him, not by force of the testator’s will, any defect or flaw in the vendor’s title, such sale shall
but by operation of law. be valid, if, subsequently, the vendor shall be judicially
excluded from the inheritance by reason of any
If the incapacity, however, is due to ANY OF THE incapacity.
CAUSES SPECIFIED IN ART. 1032, the free portion
and legitime is affected. Although the alienation is valid, the co-heirs who are
→ It is well-settled not only because of the prejudiced shall have a right to recover damages
phraseology of the law, but also because of from the disqualified heir.
the very nature of the incapacity itself, that
incapacity due to unworthiness has the effect The same rules are applicable with respect to acts of
of depriving the heir of any share or administration performed by the disqualified heir before
participation in the inheritance. This applies the judicial order of exclusion. This is especially
not only to the share to which he is entitled by apparent when the heir is in possession of the property
force of the testator’s will, but also to the share or estate. Third persons who are affected by such acts,
to which he is entitled by law. relying upon the apparent authority of the possessor,
not only as possessor of the property, but also as
➢ It must be noted, however, that the incapacity is alleged heir of the decedent, shall be protected. But,
personal; it cannot, therefore attach to his own again, in such case, the co-heirs shall have a right to
children or descendants. recover damages from the disqualified heir.
o Consequently, in testamentary succession, if
the heir who has committed the act of By the judicial order of exclusion, the court declares
unworthiness is a compulsory heir in the direct which of the heirs are disqualified or incapacitated.
descending line and he should have children
or descendants of his own, the latter shall Q: A has a son B and a brother C. A in his will gave B
acquire his right to the legitime. and C houses worth P5 million each out of an estate
o If there are no children or descendants who worth P10 million. After the death of A, B immediately
can represent him, then the legitime shall be sold his apparent rights as heir to X, an innocent
given to those who are entitled thereto in purchaser for value. Later came a judicial order
accordance with the rules of intestate declaring B incapacitated for having been convicted by
succession. final judgment of an attempt to kill A while the father
was still alive. Should the sale to X be respected?

A: Yes, since this was done before the judicial order Incapacitated Heir Who Disregards Prohibition
of exclusion. C’s rights, as the nearest qualified Example: An incapacitated heir entered into the
intestate heir, would be to recover damages from B. possession of a piece of land belonging to the estate of
Note that insofar as Art. 1036 is concerned, it is the the decedent. If the land should increase by alluvium,
good or bad faith of the third person that is important, he should return not only the land but also the
not the good or bad faith of the incapacitated heir. accessions thereon. If he had built a house thereon, he
is considered a possessor in bad faith, and can
Art. 1036 speaks of two kinds of actuations: therefore lose said house. “He who builds, plants or
(a) alienation of hereditary property sows in bad faith on the land of another, loses what is
(b) acts of administration. built, planted, or sown, without right to indemnity.’’ (Art.
449).
Alienations Before Death of Deceased
Alienations of “hereditary property” by the unworthy Being disqualified, the excluded heir has no right to
heir are of course VOID if made before the death of the enter into the possession of the hereditary property. He
decedent, since properly speaking, there is no cannot derive any benefit from the property by
“hereditary property” as yet. This is true, regardless of disregarding the prohibition of the law.
the good or bad faith of the third person.
For the purpose of Art. 1038, the good or bad faith of
Art. 1037. The unworthy heir who is excluded from the the heir is not important. Moreover, we can say he is
succession has a right to demand indemnity for any conclusively presumed to have acted in BAD FAITH,
expenses incurred. when we consider that the liability being imposed on
him is the liability ordinarily imposed on possessors in
In the preservation of the hereditary property, and to BAD FAITH.
enforce such credits as he may have against the estate.
Note that he is being made liable for all the “fruits and
Right to Indemnity of Excluded Heir rents he may have received, or could have received
The unworthy heir is entitled under this article: thru the exercise of due diligence.’’ (Art. 1038, par. 2).].
(1) To demand reimbursement for expenses incurred
in the preservation of hereditary property, i.e. Being in bad faith, the disqualified heir shall always be
necessary expenses liable for damages.
→ This right exists even if he enters into
possession of the property in bad faith Q: Suppose there were improvements introduced or
(2) To enforce such credits as he may have against there were losses or deteriorations, would Art. 1038
the estate apply?
→ A credit is not part of the inheritance and has A: No, since the Article speaks only of three things:
nothing to do with the heir’s being unworthy to accessions, fruits, and rents. Therefore, the rules on
succeed. He has the right to collect his credit possession must be applied, and when we do this, his
as a credit. good or bad faith must be considered.
Useful and Luxurious Expenses Art. 1039. Capacity to succeed is governed by the law of
Useful and luxurious expenses are deemed governed the nation of the decedent.
by the rules on possession, and, therefore, in this case,
the good or bad faith is important. Governing Law If Decedent is a Foreigner
Under the Civil Code, in case of conflict of laws,
Q: A was incapacitated to inherit from his father’s generally, we adhere to the nationality principle.
estate. But the father owed him P100,000 before he
(the father) died. May A still enforce this credit of his? Thus, according to Art. 15 of the Code, “family rights
A: Yes, he is allowed to do so, although he is and duties or the status, condition and legal capacity of
incapacitated to inherit. A credit is not an inheritance. Filipino citizens who are living abroad are governed by
He can get the credit therefore not as an heir, but as a Philippine law.”
creditor. This general provision has always been understood,
even before the effectivity of the New Civil Code, as
Art. 1038. Any person incapable of succession, who, implying that in the case of foreigners, it is their
disregarding the prohibition stated in the preceding national law that shall govern their family rights and
duties or their status, condition and legal capacity if
articles, entered into the possession of the hereditary
they are living in the Philippines, and not Philippine law.
property, shall be obliged to return it together with its
accessions.
Be that as it may, the law of succession is much more
explicit. There are four aspects of succession which are
He shall be liable for all the fruits and rents he may have governed by the national law of the decedent if he is a
received, or could have received through the exercise foreigner. They are:
of due diligence. (1) first, the order of succession;
(2) second; the amount of successional rights;
(3) third, the intrinsic validity of testamentary
provisions; and

(4) fourth, the capacity to succeed. Who Can Bring the Action
The first three are enumerated in the second paragraph Anyone who may have an interest in the
of Art. 16, while the last is stated in Art. 1039 succession (that is, the person who would inherit in
place of the incapacitated heir).
Art. 1040. The action for a declaration of incapacity and
for the recovery of the inheritance, devise or legacy NOTE: The judicial declaration of incapacity is different
shall be brought within five years from the time the from the conviction required by Art. 1032, Nos. 2, 3 and
disqualified person took possession thereof. It may be 5.
brought by any one who may have an interest in the
succession.
Remedy Against Disqualified Heir

The action defined in the above article has a two-fold
purpose —
(1) first, a declaration of incapacity, and
(2) second, recovery of the inheritance, devise or
legacy.
Hence, what is contemplated is a case in which the

disqualified heir, devisee or legatee has already taken
possession of the property.
Therefore, the primary purpose of the action is the

restoration of the property. It is evident that this
action for declaration of incapacity and for recovery of
the property may or may not be a part of the
administration proceedings. If it is not a part of the
administration proceedings, it becomes an ordinary
action by anyone who may have an interest in the
succession.
Period of prescription: The Code gives the executor

or administrator or any one who may have an interest
in the succession five years from the time the
disqualified person took possession of the
inheritance, devise or legacy within which to file the
action. Beyond that, the action shall prescribed
Prescriptive Period for Declaration of Incapacity

and for Recovery of the Inheritance
The action —
(a) for declaration of incapacity
(b) and for the recovery of the inheritance (devise or
legacy) SHALL be brought WITHIN 5 YEARS from the
time the DISQUALIFIED heir took POSSESSION
thereof.
NOTE: If one brings the action only for a declaration of

incapacity, he cannot recover possession; the action
must be for BOTH declaration and recovery. Of course,
an action for recovery is sufficient for after all, there can
be no recovery unless a declaration of incapacity is first
made.
NOTE: The action must include recovery of

accessions, rentals, fruits.
NOTE: If there be administration and settlement

proceedings, the residue (after debts) will be
distributed AFTER due hearing on the rights of the
parties involved. Of course, the judgment is conclusive
only on those who had NOTICE of the proceedings

Articles 1041 to 1077: Acceptance & Repudiation | Executors & Administrators | Collation Vice Dean Castillo-Taleon
SECTION 3 → Reason for allowing repudiation: No one can
ACCEPTANCE AND REPUDIATION be compelled to accept the generosity of
OF THE INHERITANCE another.
• Acceptance or repudiation cannot be made during
Art. 1041. The acceptance or repudiation of the the lifetime of the testator or decedent, except
inheritance is an act which is purely voluntary and free. insofar as collationable donations inter vivos and
remissions are concerned.
Concept of Acceptance and Repudiation • The rule enunciated in Art. 1041 also applies to
ACCEPTANCE REPUDIATION donations inter vivos and to remission of debts.
refers to the act by virtue refers to the act by which
of which an heir, legatee a person called to Three Points of Time in Succession
or devisee manifests his succeed to said (1) OPENING OF SUCCESSION → w/c takes
ASSENT in accordance inheritance manifests place at the moment of death of the decedent
with the formalities his UNWILLINGNESS (2) AVAILABILITY OF THE INHERITANCE →
prescribed by law to to succeed to the same. w/c is the moment when inheritance may be
succeed to the accepted
inheritance, legacy or (3) ACQUISITION OF THE INHERITANCE →
devise. w/c takes place at the moment when the
inheritance is accepted, but the effects of
The three principal characteristics of acceptance or such acceptance retroact to the moment of
repudiation are the following: the opening of the succession
(1) first, it is voluntary and free,
(2) second, it is retroactive, and Art. 1042. The effects of the acceptance or repudiation
(3) third, once made, it is irrevocable. shall always retroact to the moment of the death of the
decedent.
While it is true that successional rights are
transmitted at the very moment of the death of the Effects in General
decedent, it must be observed that before such ACCEPTANCE REPUDIATION
transmission can take place, it is absolutely necessary If the heir, legatee or if he repudiates such
that those who are called to the succession either by devisee accepts the inheritance, legacy, or
will or by operation of law must accept their inheritance, legacy or devise, he throws away
inheritance, legacy or devise. devise, his right thereto a right which the law has
→ So long as there is no manifestation of such is perfected or conferred upon him.
acceptance, there can be no transmission of confirmed.
successional rights. As a result, the
 The heirs, legatees or devisees, however, cannot The hereditary property inheritance, legacy or
be compelled to accept their inheritance, legacy or is deemed to belong to devise which is
devise. This is so because acceptance and the heirs simultaneously rendered vacant shall
repudiation are by their very nature voluntary and with the death of the pass to those who are
free. decedent. entitled thereto either by
Hence, during that interval between the death of the right of accretion or in
decedent and the acceptance or repudiation, the their own right.
inheritance, legacy or devise remains in a state of
suspension. Retroactive Effect of Acceptance and Repudiation:
✓ But once the heir, legatee or devise manifests Purpose of the law — to prevent any stage where the
his acceptance or repudiation in accordance property will be without an owner and possessor
with the formalities prescribed by law, the
effect thereof shall retroact to the very Pure and Absolute Acceptance or Repudiation
moment of the death of the decedent. It has Acceptance or repudiation must be pure and
become irrevocable. absolute, that is, there must be no term or condition
otherwise the purpose referred to in No. (1) may be
Voluntary and Free Acceptance and Repudiation frustrated, and there would be uncertainty as to
• Because acceptance and repudiation are free and whether the properties or rights are being transmitted
voluntary acts, the presence of vitiated consent or not.
gives rise to their revocability.
• It is more usual to accept than to repudiate, Art. 1043. No person may accept or repudiate an
therefore, while acceptance may be presumed, inheritance unless he is certain of the death of the
repudiation requires more formalities. person from whom he is to inherit, and of his right to the
• There can be partial acceptance and partial inheritance.
repudiation, since the law does not prohibit this,
Art. 990 of the old Civil Code having been
Requisites for Acceptance or Repudiation
eliminated.
Before a person may accept or repudiate an
• Even the legitime may be repudiated. inheritance, the following requisites must concur:
(1) first, he is certain of the death of the person
from whom he is to inherit; and

→ Hence, the act must not be made during the Q: Can the successional rights of minors or
decedent’s, lifetime; however, presumed incapacitated persons be waived?
death for purposes of succession is enough, A: Art. 1044 of the NCC provides that any person
although of course in such case, there may be having free disposal of his property may accept or
a RETURNING repudiate an inheritance. Any inheritance left to minors
(2) second, he is certain of his right to the or incapacitated persons may be accepted by their
inheritance. parents or guardians. Parents or guardians may
→ Thus, acceptance by a legatee, when the will repudiate the inheritance left to their wards only by
is void, is useless. The second requisite is, of judicial authorization. Parents and guardians may not
course, necessary because there is always therefore waive or repudiate the inheritance of their
the possibility that he might not be allowed to wards without judicial approval. This is because
inherit. In testamentary succession, for repudiation amounts to an alienation of property which
instance, the will by virtue of which he is called must pass the court’s scrutiny in order to protect the
to inherit may not be admitted to probate by interest of the ward.
reason of some fatal defect or the institution
of heirs may be invalid for some reason or Art. 1045. The lawful representatives of corporations,
other. The same is true in intestacy. There associations, institutions and entities qualified to
might be some heirs who are preferred in the
acquire property may accept any inheritance left to the
order of intestate succession. In all of these
latter, but in order to repudiate it, the approval of the
cases, any acceptance or repudiation
court shall be necessary.
becomes superfluous.
Rules for Juridical Entities
Art. 1044. Any person having the free disposal of his
ACCEPTANCE REPUDIATION
property may accept or repudiate an inheritance.
does not need court requires court approval.
approval
Any inheritance left to minors or incapacitated persons
Reason: Such approval
may be accepted by their parents or guardians. Parents Reason: A benefit is may be demanded by
or guardians may repudiate the inheritance left to their presumed public policy and interest
wards only by judicial authorization. because the act can
result in loss of
The right to accept an inheritance left to the poor shall patrimony.
belong to the persons designated by the testator to
determine the beneficiaries and distribute the property, Art. 1046. Public official establishments can neither
or in their default, to those mentioned in Article 1030. accept nor repudiate an inheritance without the
approval of the government.
Who May Accept or Repudiate
ACCEPTANCE REPUDIATION Rules for Public Official Establishments
mere acceptance by (being an act of Note that the rule for acceptance or repudiation is the
those in charge alienation) — COURT same in this Article, namely, approval of the
(guardians, parents), in APPROVAL IS Government (proper Executive Head or Department
behalf of incapacitated NEEDED Head) is required.
person (one
incapacitated to dispose NOTE: This approval by the government is NEEDED
of his property, such as even when the bequest or gift is not conditional.
an insane man) —
SUFFICIENT. “Public official establishments” = those devoted to
public purposes (like charity, education) and supported
Therefore, no judicial by public money. (Examples: University of the
authorization is needed, Philippines; Philippine National Red Cross.)
UNLESS there be
burdens.
Art. 1047. A married woman of age may repudiate an
If beneficiary is POOR
inheritance without the consent of her husband.
the right to accept shall such right may be
belong to the person exercised only by the
designated by the beneficiaries Q: Why is the married woman allowed to repudiate an
testator to determine themselves once they inheritance without the consent of the husband?
the beneficiaries and are finally determined. A: Because after all, if she gets the inheritance, it
distribute the becomes her separate property.
property. In default of
such person, it shall If the beneficiary happens to be a married woman of
belong to the executor. age, her right to accept is subject to the limitation
prescribed by Art. 114 of the Code which declares that
NOTE: An insane person cannot of course accept all she cannot, without her husband’s consent, acquire
by himself, unless it be proved that he acted during a any property by gratuitous title, except from her
lucid interval.

ascendants, descendants, parents-in-law, and Art. 1050. An inheritance is deemed accepted:
collateral relatives within the fourth degree. (1) If the heir sells, donates, or assigns his right to a
stranger, or to his co-heirs, or to any of them;
However, her right to repudiate is absolute, unless the (2) If the heir renounces the same, even through
marriage is governed by the system of absolute gratuitously, for the benefit of one or more of his co-
community, in which case, according to Art. 200 of the heirs;
Code, neither spouse may renounce or repudiate any
(3) If he renounces it for a price in favor of all his coheirs
inheritance without the consent of the other.
indiscriminately; but if this renunciation should be
gratuitous, and the co-heirs in whose favor it is made
Art. 1048. Deaf-mutes who can read and write may are those upon whom the portion renounced should
accept or repudiate the inheritance personally or devolve by virtue of accretion, the inheritance shall not
through an agent. be deemed as accepted.
Should they not be able to read and write, the Instances of Implied Acceptance
inheritance shall be accepted by their guardians. These This Article enumerates some instances of implied
guardians may repudiate the same with judicial acceptance. Acceptance is indeed implied because
approval. although the term “acceptance” may not be used, still
when a person receives SOMETHING else for himself,
Rule For Deaf-Mutes or CONFERS AN EXTRA ADVANTAGE on others, he
ACCEPTANCE REPUDIATION does so only because he is, in REALITY, DISPOSING
does not need court requires court approval. off what he has already ACCEPTED.
approval
Reason: to protect the Three examples of implied or tacit acceptance are
ward’s interest. If a deaf- given in Art. 1050.
mute who can read and (1) If the heir sells, donates, or assigns his right to a
write has no guardian, stranger, or to his co-heirs, or to any of them;
he may accept OR (2) If the heir renounces the same, even through
repudiate even without gratuitously, for the benefit of one or more of his
the necessity of judicial co-heirs;
approval. (3) If he renounces it for a price in favor of all his
coheirs indiscriminately; but if this renunciation
Art. 1049. Acceptance may be express or tacit. An should be gratuitous, and the co-heirs in whose
express acceptance must be made in a public or private favor it is made are those upon whom the portion
document. renounced should devolve by virtue of accretion,
the inheritance shall not be deemed as accepted.
A tacit acceptance is one resulting from acts by which
the intention to accept is necessarily implied, or which It must be observed that all of these acts are acts which
only one who had already accepted the inheritance
one would have no right to do except in the capacity of
may perform. In other words, they are acts of
an heir.
disposition; consequently, they are acts which only
the owner is empowered to perform.
Acts of mere preservation or provisional
administration do not imply an acceptance of the The enumeration, however, is not complete. There are
inheritance if, through such acts, the title or capacity of other instances of tacit acceptance, such as:
an heir has not been assumed. (4) the failure to accept or repudiate within the
prescribed period of thirty days after the issuance
Kinds of Acceptance of the order of distribution of the estate, or
While repudiation can only be done expressly, (5) acts of preservation or administration if, through
acceptance may be: such acts, the title or capacity of heir has been
(1) express (Art. 1049) - It is express when it is made assumed, or
in a public or private document; (6) the filing of a complaint for the partition of the
(2) implied or tacit (Art. 1049) — thru actions which inheritance, or
one would have no right to do except in the (7) alienations of determinate objects of the
capacity of an heir. inheritance, or
(3) presumed (Art. 1067) — if within 30 days after the (8) compromises regarding objects and rights
court has issued an order for the distribution of the included in the inheritance, or
estate, the people concerned have not signified (9) the exercise of any action which pertained to the
their acceptance or repudiation. decedent during his lifetime and which survives, or
(10) the enjoyment of the inheritance itself.
NOTE: Acts of mere preservation (like harvesting fruits,
collecting income, repairing houses) — do NOT Par. 1 — Disposes of his right
necessarily imply an acceptance. But neither do they Here the inheritance is deemed accepted because one
signify a repudiation. is not supposed to dispose of what he does not own
→ Reason: such acts may be done merely for Example: A died, leaving B as the instituted heir. B sold
the benefit of the other heirs or those who may his hereditary rights to C. This action of B is deemed to
be entitled to the inheritance.

be an acceptance of the inheritance. It should be Why Repudiation Must Be Made Expressly
remembered that an heir becomes entitled to the (1) It is an act of disposing of property rights.
inheritance not merely because he was named in the (2) It renders ineffective the transmission of the rights
will but also because of his acceptance of the of succession
inheritance. If therefore, without expressly stating his (3) It is unusual and produces disturbing
acceptance thereof, he sells or disposes of said consequences
property, it is clear that he does so because he regards (4) It may affect the rights of the creditors of the
the inheritance as his very own. No clearer example renouncer
can be given of an implied acceptance. (5) It opens the door to other heirs
Par. 2 — Renouncing, whether gratuitously or for a How Repudiation Is Made

consideration in favor of one or more of his co heirs (1) by a public instrument
Example: A instituted B, C, and D as his heirs. B = an instrument, which is acknowledged before
renounced his share in favor of C gratuitously. B is a notary public
deemed to have accepted the inheritance insofar as his (2) by an authentic instrument
share is concerned. This “repudiation” is really a = would be the equivalent of an indubitable
disposition of property rights, because he is giving C an writing or a writing whose authenticity or
advantage over the others. (Same principles applies genuine character is admitted or proved
even if the renouncing were to be in favor of a → (genuine, not forged)
stranger). (3) by a petition to the court having jurisdiction over
the testamentary or intestate proceedings but
Par. 3 — Renouncing, whether gratuitously or for a must be presented within 30 days from order of
consideration in favor of all of his of his co heirs court for the distribution of the estate, otherwise,
A instituted B, C, and D as his heirs. B renounced his this is deemed to be an acceptance.
share in favor of C and D, each of whom gave B
P500,000. B is deemed to have accepted. This is really NOTE:
not renunciation at all for he received something in • One who repudiates is deemed never to have
exchange for his share. owned or possessed the inheritance (Art. 533)
without prejudice to the rights of creditors. (Art.
1052).
According to Manresa, even if the law states “co-heirs”
• One is not allowed to repudiate legacies with
merely, whenever an heir renounces for a
consideration in favor of the following, there is also burdens when he accepts gratuitous legacies.
implied acceptance: (Arts. 954, 955).].
a) persons called to the inheritance by virtue of
Manner of Repudiation
intestacy
b) substitutes The act of repudiation is more solemn and formal than
c) persons called to the inheritance by virtue of the the act of acceptance. Hence, the manner by which it
right of accretion. is made must be clear, expressed, and formal.
This difference between acceptance and repudiation is
based on the following considerations:
Example: A instituted B and C, his friends, to his (A’s)
• Acceptance involves merely the confirmation of
inheritance. D who is A’s brother was completely left
the transmission of successional rights, while
out. If for, say, P500,000, B renounces his share in
repudiation renders such transmission ineffective.
favor of D, B is deemed to have accepted the
Hence, the consequences of the latter are more
inheritance.
violent and disturbing, and therefore, cannot be
governed by mere presumptions.
A instituted B, C, and D to his inheritance. The estate • Repudiation is, by its very nature, equivalent to an
consisted of one house. B renounced his share in favor act of disposition and alienation.
of C and D. This was made by B gratuitously. In this • The publicity required for repudiation is necessary
case, B is not deemed to have accepted the for the protection of other heirs and also of
inheritance. The law says that “if the renunciation creditors.
should be gratuitous, and the coheirs in whose favor it
is made are those upon whom the portion renounced
Art. 1052. If the heir repudiates the inheritance to the
should revolve by virtue of accretion, the inheritance
prejudice of his own creditors, the latter may petition
shall not be deemed as accepted.”
the court to authorize them to accept it in the name of
Reason for the law: This act of B is really an absolute the heir.
repudiation because the effect of an absolute
repudiation is really (in this case) to give B’s share to C The acceptance shall benefit the creditors only to an
and D. Hence, this act of B should not be considered extent sufficient to cover the amount of their credits.
as an implied acceptance. The excess, should there be any, shall in no case pertain
to the renouncer, but shall be adjudicated to the
persons to whom, in accordance with the rules
Art. 1051. The repudiation of an inheritance shall be
established in this Code, it may belong.
made in a public or authentic instrument, or by petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings.

Effect of Repudiation upon Creditors NOTE: While the law says “creditors,” if there be only
In order that the right granted by the above article to one creditor, he can avail himself of Art. 1052
creditors may be availed of, it is necessary that the
following requisites must concur: Similarly, if there be several creditors, it is not essential
(1) first, that the heir who repudiated his inheritance that all of them avail themselves of Art. 1052. If only
must have been indebted at the time when the one wants to make use of the right, this is perfectly
repudiation is made; alright.
(2) second, that the heir-debtor must have repudiated
his inheritance in accordance with the formalities Q: T instituted a friend F to an estate of P1 million. T
prescribed by law; has no compulsory heirs. F is indebted to C for
(3) third, that such act of repudiation must be P800,000. Although F is completely insolvent, he
prejudicial to the creditor or creditors; and renounces the inheritance. C then petitions the court to
(4) fourth, that there must be judicial authorization. accept the inheritance in F’s name. Will he be allowed
to do so?
Once all of these requisites are present, the creditor A: Yes, but only to the extent of P800,000. The
or creditors can then accept the inheritance in the remaining P200,000 will not go to F but will go to the
name of the renouncer. persons entitled by law to the same. Thus, in the
problem given, it will go to the intestate heirs. (If there
It must be noted, however, that such acceptance shall be no relative within the 5th degree, the State will
benefit the former only to the extent sufficient to inherit same as the last intestate heir).
cover the amount of their credits.
Q: A died, leaving an estate worth P1 million. In the will,
The excess, should there be any, shall not pertain to
A gave B, his friend, P200,000 and the rest to C, who
the renouncing heir, but shall be adjudicated to those
is A’s legitimate son. A did not give anything to D, his
to whom, in accordance with the rules established by own legitimate brother. C repudiated his inheritance
the Civil Code, it may belong. Consequently, it may although he had no money and although he owed X
pass to the co-heirs in their own right or by right of
P500,000. X was allowed to get this P500,000. The
accretion depending upon the circumstances and
remaining P300,000 is claimed by C, D and B. Decide.
conditions of each particular case.
A: The P300,000 will not go to the renouncer, C, but
When Creditors May Accept
will go to B, the friend, by virtue of accretion. This is so,
• While rights may be waived, still waiver cannot be because by virtue of C’s repudiation, there is no more
allowed, if among other things, it is prejudicial to a legitime to speak of, and everything is FREE. Accretion
third person with a right recognized by law. excludes D’s right to inherit by intestacy.
• The creditor must prove that he cannot otherwise
collect from the heir what is due him. He must first
go after the property of the heir. Art. 1053. If the heir should die without having accepted
• He must be a creditor of the repudiating heir at or repudiated the inheritance his right shall be
TIME OF THE RENUNCIATION; otherwise, he transmitted to his heirs.
cannot be said to have suffered any prejudice.
• The creditors do not accept in their own name; When Right to Accept or Repudiate is Transmitted
they accept in the name of the heir (or devisee or to Heirs of the Heir
legatee). The right is transmissible because it is not strictly
• The creditor cannot accept everything that has personal.
been repudiated, they can accept only to the
extent they have been prejudiced. The acceptance of the second heir of the inheritance is
• Even if the creditors accept everything that has not a case of sucession by right of representation. The
been repudiated, the renouncing heir is not second heirs inherit in their own right from the second
considered as having accepted — he is still a decedent.
renouncer, and cannot therefore be represented.
Example: A dies leaving P100,000 to B, a friend, who
Rule If Creditors Will Not Be Prejudiced has a legitimate child C. If B predeceases A, B acquires
The creditors will not be allowed to accept in the name no right since he is a voluntary heir and therefore does
of the heir if they have not been prejudiced, therefore: not transmit the P100,000 to C. But, if B survives A,
• If the heir still has enough properties of his own to and later B dies without having accepted or repudiated
cover his debts, the creditors cannot avail the inheritance, the right to accept or repudiate is
themselves of Art. 1052. (In other words, the heir’s transmitted to C. Observe that the death of the heir
own properties will first be liable). should be after that of the decedent in order that Art.
• If the creditors became creditors ONLY AFTER the 1053 may be applied.
repudiation, they cannot be said to have been
prejudiced by the repudiation, for they did not exist Q: if B dies later than A, but C renounces his right to
as such at the time of repudiation. (Therefore, the inherit from B, can C make use of Art. 1053?
creditors in Art. 1052 are those already such at the A: No, even if B was not able to accept or repudiate A’s
time of repudiation). inheritance. This is evident because the transmission
of said right to choose presupposes that the heirs of the
original heir are willing to inherit from said original heir.

NOTE: While it is true that although a renouncer who becomes final or irrevocable. He can no longer accept
cannot be represented may still represent, still this as a legal heir.
principle has no application to the present problem —
(1) first, because the principle holds true in the case Reason for par. 1: A testamentary heir who repudiates
of PREDECEASE, not in the case of a SURVIVAL; does not seem to appreciate the generosity of the
(2) second, because a voluntary heir can never be testator; therefore, he is not worthy to receive his
represented; and intestate share
(3) third, because there is no real representation
involved in Art. 1053 (as the term representation Q: T instituted his only son to 3/4 of the estate. No other
technically signifies), because even if C accepted provision was made. The son repudiated his share as
B’s inheritance, and would exercise B’s option, he testamentary heir. The remaining 1/4 which should be
would not really be inheriting from A but from B dealt with as intestate is claimed by the son himself,
(who had survived A) thus, involving not a case of and by the testator’s brother — as intestate
inheritance by right of representation but an heirs.Decide.
inheritance in his own right — from B.]. A: The brother gets said 1/4. Reason: While the son is
the nearest intestate heir, his repudiation of the
Art. 1054. Should there be several heirs called to the testamentary 3/4 renders him undeserving of the
inheritance, some of them may accept and the others intestate share. For the same reason, the 3/4 should
may repudiate it. also be given to the brother.
Rule if there are Several Heirs Q: The law says “he is understood to have repudiated
Q: T died instituting 5 friends. Is it alright for the two of it in both capacities.” Does this mean that he is
them to accept and for the other three to repudiate the automatically disqualified from receiving the intestate
inheritance? share, or does this mean that he is merely presumed
A: Yes, with respect to their individual shares. to have repudiated also the intestate share, without
prejudice to his expressly reserving his right to the
same?
Q: T died instituting F, a friend, as his only heir. The A: It is submitted that the answer is that he is
day after T died, F also died, leaving five children. F automatically disqualified to get his intestate share; that
had not been able to signify either his acceptance or is, he is NOT ALLOWED to repudiate the testamentary
repudiation of T’s inheritance. Is it permissible for two
share and at the same time accept the intestate share.
of the children to accept in his name, and for the other
(This is then one form of IMPLIED repudiation
three to repudiate? {intestate} based however on an EXPRESS
A: Yes, with respect to their respective shares. repudiation {testate}.)]
NOTE: If several heirs instituted to the same Repudiation as Intestate Heir
inheritance accept the inheritance, they become heirs
in co-ownership. A died, leaving an estate worth P1 million. In his will, A
gave B, his legitimate son, P700,000. No disposition
was made of the balance. If B repudiates the P300,000
Art. 1055. If a person, who is called to the same which should accrue to him as the nearest intestate
inheritance as an heir by will and ab intestato, heir, without knowing that he had been also made
repudiates the inheritance in his capacity as a testamentary heir in the amount of P700,000, he may
testamentary heir, he is understood to have repudiated still accept this portion in the character of testamentary
it in both capacities. heir.
Should he repudiate it as an intestate heir, without If he repudiates as an intestate heir, he may still accept
knowledge of his being a testamentary heir, he may still as a testamentary heir, provided that he did not know
accept it in the latter capacity. of his being an heir by will.
Repudiation as Testamentary Heir Reason for the 2nd par.: It is always possible that the
The first paragraph of the above article states the rule heir may respect the express will of the testator and
that if the person called to succeed is a testamentary would not desire to see the wishes of the testator
heir and a legal heir at the same time and he repudiates unfulfilled.
his inheritance in his capacity as a testamentary heir,
he is considered to have repudiated the inheritance in Q: If he repudiates it as an intestate heir, KNOWING
both capacities. that he is also a testamentary heir, may the heir still
accept in his capacity as testamentary heir?
There is, therefore, a presumption that his act of A: Despite the literal wording of the law, it is believed
repudiation when called by the testator himself is that the answer is YES, in view of the reason given in
tantamount to an act of repudiation when called by the No. 2(b).
law in accordance with the presumed will of the
decedent. Remember that a “will” is the express will of the testator
while “succession by intestacy” is only the presumed
Once such heir has repudiated his share in the will of the decedent. Now then, the disregarding of the
inheritance in his capacity as testamentary heir, the act express will should carry with it the disregarding of the

presumed will, while the disregarding of the presumed accepting or repudiating the inheritance. For
will does not necessarily mean the disregarding of the example, the sale by an heir of his hereditary rights
express will. to a stranger is a form of implied acceptance. (Art.
1050, par. 1).
Art. 1056. The acceptance or repudiation of an • Notice that Art. 1057 provides a way for tacit or
inheritance, once made, is irrevocable, and cannot be implied acceptance. Hence, if there are
impugned, except when it was made through any of the administration or settlement proceedings, the
causes that vitiate consent, or when an unknown will heirs, etc., cannot repudiate the inheritance after
appears. the lapse of thirty days.
SECTION 4
Irrevocability of Acceptance or Repudiation
EXECUTORS AND ADMINISTRATORS
General Rule: Once an acceptance or repudiation is
made, it is irrevocable and cannot be impugned.
→ Reason: To prevent confusion and instability Art. 1058. All matters relating to the appointment,
of rights. powers and duties of executors and administrators and
concerning the administration of estates of deceased
Exceptions: persons shall be governed by the Rules of Court.
(1) When the acceptance or repudiation was made
thru any of the causes that vitiate consent: Executors and Administrators
a. mistake (of substance or on the principal An executor of a will cannot officially act as such before
conditions) his appointment is confirmed by the court. If he acts as
b. violence one before said time, he is called an executor de son
c. intimidation tort (“in his own wrong”).
d. undue influence
e. fraud. (Art. 1330). No executor or administrator must be appointed till
(2) When an unknown will appears which there is proof of the decedent’s death.
substantially alters the rights or obligations of the
person who has accepted or repudiated. (Art. Administrator Pendente Lite
1056). An administrator pendente lite or special
administrator is one who is appointed in the meantime
Manresa makes a distinction here: to take charge of the estate, where there is a delay in
• If the new will makes only insignificant changes in the appointment of the regular executor or
the old one, the appearance of the unknown will administrator — a delay occasioned by certain causes
should not allow the impugning of the previous such as an appeal from the allowance or disallowance
acceptance or repudiation made concerning the of a will.
old one. This is so because the cause for
impugning can not really be said to be present. Q: Two girls claimed to be the widow of the decedent
• If the new will makes substantial changes, the old and as such desired to be appointed administrator. In
acceptance or repudiation may be impugned. the meantime, while this issue is being decided, what
should be done?
A threat to enforce one’s claim through competent A: A special administrator must be appointed
authority, if the claim is just or legal, does not vitiate
consent. (Art. 1335, last par.) A special administrator is allowed to sell part of the
property, upon approval by the court, but is NOT
If an heir instituted under a suspensive condition required or allowed to pay the debts of the deceased.
accepts, but the condition is not fulfilled, the
acceptance is naturally VOID. If however no objection had been raised in the trial
court, an action to recover the debt can be had against
Art. 1057. Within thirty days after the court has issued an the special administrator, provided the estate has not
order for the distribution of the estate in accordance been prejudiced. The objection cannot indeed be
with the Rules of Court, the heirs, devisees and legatees raised for the first time on appeal. However, it is not the
shall signify to the court having jurisdiction whether special administrator who is required to satisfy the
they accept or repudiate the inheritance. judgment out of the estate but the regular administrator
or executor.
If they do not do so within that time, they are deemed to
have accepted the inheritance. Other Kinds of Special Administrators
(1) One appointed even after there is already a
regular executor or administrator, when the latter
When Acceptance or Repudiation Must Be
seeks to recover his own credit or claim against
Signified to the Court
the estate. (Rule 86, Sec 8, Rules of Court).
• If there are no settlement or administration
proceedings, it is obvious that this Article cannot NOTE: In such a case, the special administrator
apply. may be given necessary funds for purposes of
• Even if there are settlement or administration defense. For this object, the court may order the
proceedings, still this Article is not exclusive, that
is there can be allowed the other forms of

regular administrator to give the funds out of the be those involved in the administration of the
estate. decedent’s estate.
(2) One known as an administrator durante minore Insolvency of the Estate

aetate — one appointed when the person who has • The rules on preference and concurrence of
the right to become executor or administrator is credits are to be applied in case of insolvency of
still a minor. The appointment continues until the the estate.
end of such minority. • Art. 2244 gives the ORDER OF PREFERENCE.
NOTE: Such a person has all the rights of a regular The GENERAL RULE is that a probate court cannot
executor or administrator. issue a writ of execution, because its orders usually
refer to the adjudication of claims against the estate
Regular Administrator which the executor or administrator may satisfy without
In the appointment of a REGULAR administrator, the the need of resorting to a writ of execution. The probate
surviving spouse is given first preference. court as such does not render any judgment
enforceable by execution.
Said surviving spouse must be:
(1) capable (not minors, not non-residents) EXCEPTION: the probate court may issue writs of
(2) not hostile to those interested in the estate. execution in the following instances:
(Arevalo v. Bustamante, 68 Phil. 656). (1) to satisfy debts of the estate out of the contributive
(3) solvent (because a bond is needed) shares of heirs, devisees and legatees in the
(4) the legal spouse possession of the decedent’s estate;
(2) to enforce payment of the expenses of partition;
Even if she marries again after having been appointed, and
her authority to act as administratrix continues. (3) to satisfy the costs when a person is cited for
examination proceedings.
Principal Duty of Administrator
The administrator has the duty of administering, NOTE: A legacy or a devise is not a debt of the estate
settling, and closing the administration without delay. hence the same cannot be enforced by a writ of
Of course, he should determine what properties must execution.
belong to the estate, and must bring the needed
actions for their recovery if they be in the possession of
Art. 1060. A corporation or association authorized to
others. Within three months after his appointment, he
must submit an inventory and appraisal of the conduct the business of a trust company in the
decedent’s real and personal property. Within a year Philippines may be appointed as an executor,
from his appointment, he must render proper administrator, guardian of an estate, or trustee, in like
accounting. (See Rule 85, Sec. 8, Rules of Court). manner as an individual; but it shall not be appointed
NOTE: In a will, although a certain person is appointed guardian of the person of a ward.
expressly as an administrator or executor, still if the
intent is to make him a trustee, the appointment should Juridical Entities Acting in a Fiduciary Capacity
be construed as that of a trustee. (Perez v. Caluag, GR Note that the juridical persons referred to can be
16182, April 13, 1955) appointed guardian of the PROPERTY, but not the
person of a ward.
When the estate of a dead person is already the
subject of testate or intestate proceedings, the SECTION 5
administrator cannot enter into any transaction COLLATION
regarding the estate without the prior approval of the
probate court (Estate of Amadeo Matute v. Judge Meanings of Collation
Reyes; GR 29407, July 29, 1983). As used in the law of succession, collation has at least
two meanings:
Generally, It Is the Executor or Administrator Who (1) First, it means “computing or adding certain values
Is Primarily Liable for Attorney’s Fees Due the to the estate, and charging the same to the
Lawyer Who Rendered Legal Services for the LEGITIME.’’
Executor or Administrator This is in relation to the
settlement of the estate, and where the executor or (2) Secondly, it means “computing or adding certain
administrator may seek reimbursement from the estate values to the estate, and charging the same to the
for the sums paid in attorney’s fees if it can be shown FREE PORTION.’’ (See Arts. 1062, 1063).
that the services of the lawyer redounded to the benefit
of the estate. Conversely, the phrase “not collationable’’ can mean:
(1) First, it should be computed or added, but it should
Art. 1059. If the assets of the estate of a decedent which be charged to the free portion (and not to the
can be applied to the payment of debts are not sufficient legitime).
for that purpose, the provisions of Articles 2239 to 2251 (2) Secondly, it should NOT even be computed or
on Preference of Credits shall be observed, provided added to the estate, for it is not part of the same.
(See Art. 1067).
that the expenses referred to in Article 2244, No. 8, shall

NOTE: There can be collation both in testamentary and the hereditary estate fictitiously, so that a proper
legal succession. division can be made of the estate.
→ A person cannot give by way of donation more
the act of returning or restoring to the common mass of than what he can give by will. Consequently,
the hereditary estate, either actually or fictitiously, any if he gives more than what he can dispose of
property which a person may have received from the by will, the donation is said to be inofficious
decedent during the latter’s lifetime, but which is with regard to the excess.
understood for legal purposes as an advance from the → However, at the time the donation is made,
inheritance. there is no way by which one can tell whether
the donation is inofficious or not. It is only
Concept of Collation when the decedent donor dies that it will be
(1) In one sense, it is understood as a fictitious possible to determine what portion of his
mathematical process of adding the value of property is at this free disposal.
the thing donated to the net value of the → In order to do this, there must be a collation,
hereditary estate. [COLLATION PROPER] fictitious in character, of the value of all
→ This is the sense in which it is used in Art. 908 donations inter vivos to the net value of the
of the Code. It is a process which is applicable estate, and from the aggregate sum thus
to all donations inter vivos, whether to found, the legitime of compulsory heirs and
compulsory heirs or to strangers. The the portion at the decedent’s free disposal can
immediate purpose is to compute the legitime be determined.
of compulsory heirs.
From what has been stated, it is clear that all
(2) In another sense, it includes not only the process donations, whether to compulsory heirs or to
of adding the value of the thing donated to the net strangers, must be collated.
value of the hereditary estate but also the → However, at this stage, the collation is merely
subsequent act of imputing such value against fictitious in character; it is simply a
the legitime of the compulsory heir to whom mathemathical process of adding to the net
the thing was donated [IMPUTATION] value of the estate the value of the things
→ This is the sense in which it is used in Section donated.
5 of Title IV of the Code. The immediate → After the legitime and the disposable portion
purpose is “to compute it in the determination have been determined, the value of the
of the legitime of each compulsory heir, and in donations which had been added to the net
the account of the partition.” The ultimate value of the estate are charged or imputed
purpose, however, is to equalize the position against either the legitime or the disposable
of each compulsory heir. portion.
→ As a rule, donations to compulsory heirs are
(3) In still another sense, it refers to the actual act of imputable against their legitime.
restoring to the hereditary estate that part of → Donations to strangers are, of course,
the donation which is inofficious. imputable against the disposable portion.
[REDUCTION & RESTITUTION] → Again, it must be noted that at this stage, the
→ The immediate purpose is to prevent the process is still fictitious in character; it is still a
impairment of the legitime of compulsory mathematical process the purpose of which is
heirs. to determine what has already been
advanced by the decedent donor either from
The basis of collation is the consideration that what a the legitime of the donee if he is a compulsory
COMPULSORY HEIR receives from the decedent by heir from the disposable portion if he is a
gratuitous title during the lifetime of the latter is in the stranger.
nature of an advance on his inheritance. → If the donations are inofficious in the sense
→ Hence, in order to equalize the legal portion that they cannot be contained within the
to which compulsory heirs are entitled and portion at the decedent’s free disposal, there
which such heirs shall ultimately or eventually must be a proper reduction of such donations
receive, it is necessary that such advance in order not to impair the legitime of
must be returned or brought back, fictitiously, compulsory heirs. This reduction will have the
to the hereditary estate. effect of an actual restoration. It is at this
→ However, such advance must have been stage that the process becomes actual in
made during the lifetime of the decedent by character but only when the donation is
way of donation or any other gratuitous title. inofficious.
→ Hence, it may be in the nature of a donation
inter vivos, or a donation propter nuptias, or a Thus, in reality, there are three acts which must always
remission of a debt, or any other title, lucrative be considered before there can be a partition of the
or gratuitous in character. estate. They are collation, imputation and reduction.
Aptly stated, they are the three links in a chain, with
The same can be said of donations inter vivos to one single objective and guided by the same principle
STRANGERS. What the decedent during his lifetime
had donated to any person who is not a compulsory
heir must also be returned or restored to the mass of

Art. 1061. Every compulsory heir, who succeeds with compulsory heirs (as a rule), it follows that there is no
other compulsory heirs, must bring into the mass of the necessity for collation if there are no compulsory
estate any property or right which he may have received heirs.
from the decedent, during the lifetime of the latter, by
way of donation, or any other gratuitous title, in order It does not follow, however, that only compulsory heirs
that it may be computed in the determination of the must collate. As long as there are compulsory heirs,
donations to them as well as to strangers must be
legitime of each heir, and in the account of the partition.
collated:
• those donated to compulsory heirs must be
Collation by Compulsory Heirs
imputed to their legitime;
• This Article speaks of collation of the first kind —
• those donated to strangers must be imputed to the
adding the values to the estate, and charging (or
free portion. (For if their values are not to be
imputing) the same to the legitimes — the purpose
added, how can we know if the legitimes have
being to produce EQUALITY as among the
been impaired or not?).
compulsory heirs of the same class.
• Equality is produced because every donation inter
Q: Art. 1061 speaks of “every compulsory heir.” Is the
vivos, for example, given to a legitimate child is
surviving spouse included here?
considered generally as an advance of his legitime
or inheritance.
A: While it is true that the surviving spouse is a
compulsory heir, still she is not included here because
Q: D has P1 million. He gave a donation inter vivos of in general, donations to her during the marriage are null
P100,000 to X, his elder child. Later, he died intestate, and void. (Art. 133). Therefore, ownership over said
leaving the remaining P900,000. How should this donated property still pertains to the donor (or his
amount be divided between X, the elder child, and Y, estate). On the other hand, moderate donations like
the younger child? birthday or anniversary gifts are not to be computed at
A: The P100,000 is collationable, and therefore must all in determining the value of the estate.
be added to the remaining P900,000. The net
hereditary estate is therefore P100,000 which should Donations given to future spouses (by the other) are
now be divided EQUALLY between X and Y, who considered donations to strangers, for at said time, one
should get P500,000 each. But since X has already is not yet the compulsory heir of the other.
received P100,000 as advance of his legitime or
inheritance, he will get only P40,000 more. Thus, the
Collation in KIND v. Collation in VALUE
P900,000 will be distributed as follows:
X — P400,000 Q: The law says “must bring into the mass of the
Y — P500,000 estate.” Does this necessarily mean that the thing itself
P900,000 which was donated must be returned or collated?
Thus, also, a net equality is obtained. Moreover, not A: No, not necessarily. For collation is of two kinds:
only is there equality in quantity but also in quality. (a) collation in VALUE, and (b) collation in KIND. (The
Thus, if the P100,000 originally donated to X was in the latter usually occurs when the donee has for example
form of a CAR, a car worth P100,000 must, if possible, no money with which to reimburse in case the donation
also be given to Y. X and Y may receive the remaining turns out to be totally inofficious.).
P400,000 each in the form of cash should there be
cash in the estate. (See also Art. 1073, which provides Collation in KIND is not, properly speaking, a
that “the donee’s share of the estate shall be reduced “Collation” (numerical computation). It is really a
by an amount equal to that already received by him, RETURNING in KIND in case the donation has to be
and his co-heirs shall receive an equivalent, as much totally reduced or revoked because it is COMPLETELY
as possible, in property of the same nature, class and INOFFICIOUS and the donee either has no money or
quality’’). does not desire to reimburse in money.
The fact that a donation is irrevocable does not The same thing donated are not to be brought to
necessarily exempt the donated properties from collation and partition, but only their value at the
collation as required under Art. 1061 of the Civil Code. time of the donation, even though their just value may
not then have been assessed. Their subsequent
An inofficious donation is collationable, i.e., its value is increase or deterioration and even their total loss or
imputable into the hereditary estate of the donor at the destruction, be it accidental or culpable, shall be for the
time of his death for the purpose of determining the benefit or account and risk of the donee. (Art. 1071,
legitime of the forced or compulsory heirs and the freely Civil Code).].
disposable portion of the estate. This is true as well, as
of donations to strangers as of gifts to compulsory Two Kinds of Donations
heirs, although the language of Art. 1061 of the Civil The law says that what must be collated are those
Code would seem to limit collation to the latter class of received “by way of DONATION, or any other
donations. GRATUITOUS TITLE.”
We can, therefore, distinguish two kinds of donations:
Since the purpose of collation is to preserve the (1) the direct or ordinary donation
legitime, and to maintain equality among the (2) the indirect donation

Examples: debt which has been remitted; considered a stranger, at least with respect to the
renunciation of another inheritance by the donation, the value thereof shall not be imputable
deceased in favor of the compulsory heirs; sums against the disposable portion in accordance with Art.
paid by a parent in satisfaction of the debts of his 909 of the code.
children; election expenses, fines.
Similarly, when the DONEE REPUDIATES HIS
 Proceeds in a life insurance policy are not INHERITANCE, he ceases to be a compulsory heir.
collatable since for the purpose of collation, they The reason here is clear; he waives his legitime, his
are not considered donations. right as a compulsory heir; therefore, he ceases to be
 The same is true in the case of a mutual benefits one. For all legal purposes, he is a stranger to the
contract, which makes as beneficiary, a inheritance. Consequently, the value of the donation
compulsory heir — on the theory that any given to him is also imputable against the disposable
proceeds from such a contract (as in the case of portion and not against the legitime. But, of course, if
insurance), belong exclusively to the beneficiary. such donation impairs the legitime of the accepting
compulsory heirs — said donation must be reduced.
Therefore, when the law says that “collation shall not

take place,” what is actually meant is that the value of
Q: B and C are A’s legitimate children. During A’s the thing donated shall not be imputed against the
lifetime, he gave B the sum of P100,000. In his will, A legitime of the beneficiary; instead, it shall be
distributed his remaining estate of P900,000 as follows: imputed against the disposable portion. The value
B was given P150,000; C was given P250,000; and F, of the thing donated shall still be added to the net value
a friend, was given P500,000. When A died, B of the estate. The only difference is that it is imputable
complained, stating that he had not been given his right against the disposable portion and not against the
legitime. Is B right? legitime of the beneficiary.
A: B should not complain. Since the P100,000 is Q: D has two sons, A and B. He gave A a donation of
collationable, the net hereditary estate is P1 million P100,000 and expressly stated in the deed of donation
(P900,000 plus P100,000). B’s legitime is therefore that the same was NOT collationable. If D dies intestate
P250,000. Inasmuch as he had previously been given leaving P900,000 how should the same be divided?
P100,000 he should be satisfied with the P150,000 he
would inherit by virtue of the will, since all in all, he A: Equally, that is, A and B will each get P450,000.
would be getting P250,000. Thus, A receives a total of P550,000 (because of the
donation), or a preference of P100,000.
Where Disputes Concerning Collation Are
Settled: NOTE: If the donor had not said “no collation,” equality
The provisions of the Civil Code with reference to was clearly being desired, so A would have received
collation clearly contemplate that disputes between only P400,000 (which added to the P100,000 would
heirs with respect to the obligation to collate may be give him a share of P500,000 — equal to that of B).
determined in the course of the administration
proceedings. NOTE: A “preference” is allowed unless the legitime of
the others would be impaired.
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.
D has three legitimate children A, B, and C. D donated
When Compulsory Heirs Will Not Collate to A P600,000. When D died intestate, the remaining
According to the above article, collation shall not take estate was P300,000.
place:
(1) first, when the donor should have so expressly Q: If all the children including A will accept, should the
provided; and donation to A be reduced? Why?
(2) second, when the done should have repudiated A: Since all accepted, including A, the donation to him
his inheritance. will not be reduced. Reason: The total estate would be
P900,000, and there being THREE children, the
There is no doubt, however, that WHEN THE DONOR legitime of each is P150,000. Since this is what B and
EXPRESSLY PROVIDES THAT THE DONEE WHO IS C can each get from the remaining P300,000, their
A COMPULSORY HEIR SHALL NOT COLLATE THE legitimes have not been impaired
DONATION, the latter in relation to the donation
ceases to be a compulsory heir. In other words, the Q: If B and C accept, but A repudiates, should the
donation is no longer considered an advance from his donation to A be reduced? Why? If so, by how much?
legitime. Hence, the value thereof shall not be A: If B and C accept but A repudiates, there will be only
imputable against such legitime. Since he is TWO compulsory heirs. The total estate would still be

P900,000 and B and C are entitled to a combined Q: T has two legitimate children, A and B. T made a will
legitime of P450,000. Inasmuch as the free portion is giving A a legacy of P800,000. The total estate was
only P450,000, it follows that the donation to A will be however P1 million. If no other provision is found in the
reduced by P150,000. will, how will the P200,000 be divided?
A: The P200,000 will go to B. However, the legacy will
NOTE here that although the law says “collation shall be reduced by P50,000 and this amount will also go to
not take place ... if the donee should repudiate the B, otherwise his legitime (P250,000) would be
inheritance,’’ the donation must still be computed to impaired.
find out what the legitime is, and if found inofficious, it
must be reduced When Article 1063 Will Not Apply
In a case of a distribution and partition of the entire
Art. 1063. Property left by will is not deemed subject to estate by the testatrix without her having made any
collation, if the testator has not otherwise provided, but previous donations during her lifetime which would
the legitime shall in any remain unimpaired. require collation to determine the legitime of each heir,
there is no reason to apply Arts. 1061, 1062, and 1063.
Testamentary Dispositions Generally Will Not Be If only part of the estate had been given by will, this
Collated would be different, for here, Art. 1063 may apply.
• This Article’s use of the term “collation” is rather
misleading because there is nothing to be brought Art. 1064. When grandchildren, who survive with their
back to the estate inasmuch as it has not yet been uncles, aunts, or cousins, inherit from their
given away. grandparents in representation of their father or
• “Not subject to collation” here means merely that mother, they shall bring to collation all that their
the legacy or devise given should be imputed to parents, if alive, would have been obliged to bring, even
the free portion, and not the legitime. The testator though such grandchildren have not inherited the
can of course provide otherwise. property.
General Rule: devises or legacies are imputable They shall also bring to collation all that they may have
against the disposable portion and not against the received from the decedent during his lifetime, unless
legitime of compulsory heirs. the testator has provided otherwise, in which case his
wishes must be respected, if the legitime of the co-heirs
Exception: if the devise or legacy is in favor of a is not prejudiced.
compulsory heir, and the testator has provided that the
devise or legacy shall be imputed against the legitime
Collation by Grandchildren/ Collation of
of such heir.
Representation
When a grandchild, who survives with uncles, aunts, or
[Nevertheless, whether it is the general rule or the
first cousins, inherits by right of representation, he is
exception that is followed, the legitime of compulsory
obliged to bring to collation:
heirs must never be impaired.]
(1) what may have been directly donated to him by the
decedent; and
Q: T has two legitimate children, A and B. T made a (2) what may have been donated to his father or
will, giving A a legacy of P100,000. There was no other mother
provision to the will. The estate was P1 million.  [the value of the donation shall be imputed
Inasmuch as P100,000 has been disposed of as a against his lifetime as a representative and
legacy, how will the remaining P900,000 be divided? not against the disposable portion]
A: The P900,000 will be divided equally between A and
Paragraph 1
B, and each will therefore get P450,000. The P100,000
given as legacy to A is NOT considered an advance of • gives an exception to the rule that only donees
his legitime, but as an advance of the free portion. It is should collate.
clear that by giving A the legacy, the testator intended • applies only when the grandchild inherits by right
to give him a preference. of representation, not when he inherits in his own
right, for here the reason for the law would cease.
[NOTE: Had it been a donation, no preference would • although applying apparently only in the case of
have been intended and the remainder would have predecease, applies ALSO and for the same
been divided as follows: P400,000 for A, and P500,000 reason in both incapacity and disinheritance
for B, since in the case of donations, the law presumes
EQUALITY to be the desire of the testator.].
It is true that —
• Regarding dispositions inter vivos (donations), the
general rule is EQUALITY and the exception is During A’s lifetime, A gave B a house. That house was
PREFERENCE. (Art. 1062). later on donated by B to L, a friend. If B predeceases
• Regarding dispositions mortis causa (legacies, A, then E will represent B, and together with C and D
etc.), the GENERAL rule is PREFERENCE and will inherit from A. E will be obliged to collate the value
the exception is EQUALITY. of the house, even if E himself has not inherited said

property. This is so because, had B been alive, he obliged to bring to collation one-half of the thing
would have been obliged to bring to collation the value donated.
of said house. Since E merely takes his (B’s) place, it
naturally follows that collation by him (E) is in order. Donations to Spouse of Child
• The spouse of the child or compulsory heir is a
Paragraph 2 mere stranger to the succession.
In the example given in (a), if A had given E a house • Consequently, if the donation is given by the
during A’s lifetime, the value of said house should also parents to such spouse, it shall not be collated;
be collated (considered an advance of his inheritance) o The donee is not a compulsory heir of the
unless of course the testator has provided otherwise. parents-in-law. Since the donations were
However, even if there is such a contrary provision, the not given to the child himself, he should
legitime of the co-heirs must not be prejudiced. Hence, not be obliged to collate what he did not
even if the testator has stated that the house should not receive.
be considered as an advance of the legitime of E
• BUT if it is given to the spouse jointly
(meaning that aside from the legitime, E would get also
one-half of the donation other half belongs to the
the house), still this will not be the case if by such
belongs to the child or spouse or stranger
means, the legitime of the co-heirs is impaired.
compulsory heir
obliged to collate his shall be imputed against
Art. 1065. Parents are not obliged to bring to collation in one-half undivided the disposable portion.
the inheritance of their ascendants any property which share. It shall, therefore,
may have been donated by the latter to their children. be imputed against his
legitime
Donations to Grandchildren/ Donations to
Children of Compulsory Heirs “Non-collation” in this Article does not mean that the
• Parents are not obliged to collate any property value should not be computed. It only means that
which their ascendants may have donated to their although the value of the donation should be
children. computed (since all donations to strangers are also
• In such case, the beneficiaries are not the parents, computed or “collated”), its value should not be
but the children. considered as an advance of the legitime of the
• Hence, with respect to the inheritance coming from child himself.
an ascendant, the parents are compulsory heirs,
while the children of such parents are mere Donations BETWEEN SPOUSES
strangers. DURING MARRIAGE
• Therefore, such donation shall be imputed against • Donations b/n spouses during the marriage are
the disposable portion as in the case of considered void by law.
donations inter vivos to strangers o Hence, the same things donated MUST
BE BROUGHT TO COLLATION AS
PART OF THE ESTATE OF THE
DONOR SPOUSE, and not merely their
value at the time of the donation
• However, spouses are allowed to give each other
MODERATE GIFTS on the occasion of any family
Q: D has two legitimate children, A and B. A has a child rejoicing. Such gifts are NOT SUBJECT TO
C. D donated to C P100,000. D dies intestate leaving COLLATION whether as part of the legitime or free
an estate of P900,000. Divide. portion, because they are not part of the hereditary
A: A and B will each inherit P450,000. A is not required estate of the deceased spouse.
to collate what his child C had received by way of
donation. BEFORE ITS CELEBRATION
• Donations propter nuptias are considered as given
Reason: A should not collate for he himself had not to strangers
received the donation. o Thus, they are IMPUTABLE TO THE
FREE PORTION
In the example given in No. (1), does C have to collate?
A: If by collation we mean that the value must be
computed to find out if the legitime has been impaired Art. 1067. Expenses for support, education, medical
or not, the answer is YES. But if we mean that it will be attendance, even in extraordinary illness,
computed to C’s legitime, the answer is NO, because apprenticeship, ordinary equipment, or customary gifts
in the case presented, C is not a compulsory heir of D, are not subject to collation.
and is therefore not entitled to a legitime for he is
excluded by his father A. Expenses for Support
“Not subject to collation” — their values are not
added to the hereditary estate; they are not
Art. 1066. Neither shall donations to the spouse of the
considered as advances of the inheritance, whether
child be brought to collation; but if they have been given
as part of the legitime or part of the free portion.
by the parents to the spouses jointly, the child shall be

→ they do not constitute an advance which must generally, such expenses should be imputed or
be imputed or charged later on against the charged against the disposable free portion.
legitime of the beneficiary.
→ Art. 1067 means exactly what it says: there is It must also be noted that Art. 1068 refers only to
no collation, even in the sense of charging expenses incurred by the parents in giving their
what had been given to the free portion children a professional, vocational or other career. It
does not refer to expenses incurred after the
Meaning of Education completion of such professional, vocational or other
“Education” here means only “up to high school.” career.
College education, it would seem, is included within the Hence, expenses for a law library, medical instruments,
scope of the next article. (Art. 1068). a drug store, a vessel for a mariner, or a commercial
establishment for a businessman are not within the
Support After Death purview of the article. Such expenses shall be collated
Support after death, namely, allowances during the and, therefore, are imputable against the legitime of the
liquidation of the estate, are not embraced under Art. recipient or beneficiary.
1067. Said allowances are advances of the inheritance
Expenses For a Career
Art. 1068. Expenses incurred by the parents in giving • As already stated in the comments under the
their children a professional, vocational or other career preceding Article, this present one deals with
shall not be brought to collation unless the parents so education after high school, and may even include
provide, or unless they impair the legitime; but when graduate courses in the Philippines and abroad,
their collation is required, the sum which the child but not after the course is finished (as when a
would have spent if he had lived in the house and father buys an hacienda for his son who has
company of his parents shall be deducted therefrom. graduated with a degree in agriculture). The
hacienda is a real donation, chargeable to the
legitime.
Expenses for a Career
• The expenses in Art. 1068 will not be considered
General Rule: According to the above article,
as an advance of the legitime but as an advance
expenses incurred by parents in giving their children a
of the free portion.
professional, vocational or other career are, in general,
not to be collated. • However, if the parents so provide, said expenses
will be considered as an advance of the legitime.
Exception: • In no case should the legitime be impaired.
(1) first, if the parents so provided; and
(2) second, if the expenses impair the legitime of Expenses At Home
compulsory heirs. • Expenses which would have been incurred had
▪ In both cases the sum which the child would have the child stayed home with the parents should be
spent if he had lived in the house and company of deducted.
his parents shall be deducted from that which shall • Reason: His parents would have spent anyway
be collated. said amount for his support. Thus, in one case, it
. was held that from the expenses incurred for a
As in the case of the other properties not subject to course in surveying, should be deducted the half
collation, expenses for the professional or vocational which anyway would have been used to support
studies of a compulsory heir are not to be collated in the student concerned at home.
the sense that:
 they cannot be imputed against the legitime of Art. 1069. Any sums paid by a parent in satisfaction of the
such heir. debts of his children, election expenses, fines, and
✓ They can be imputed only against the similar expenses shall be brought to collation.
disposable portion.
Payments for Debts of Children
If the child is sick and the parents are obliged to call a Actually, such expenses are not different from other
physician, the expenses in such case shall not be kinds of donations inter vivos. As a matter of fact, such
placed in the same category as donations inter vivos expenses may even be more detrimental to the
either to a compulsory heir or to a stranger. It would successional rights of the children not benefited
indeed be absurd to charge such expenses either because they sometimes involve large amounts.
against the legitime or against the disposable portion.
Or, take the case of a birthday present or any A certain qualification, however, must be made with
customary gift. It would also be absurd to impute such respect to such expenses. The act of the parents in:
gifts later on, even if such imputation is directed against a. paying a debt of a child, or
the disposable portion. b. in spending for the election of a favorite child to a
public office, or
In the case of expenses for a professional or vocational c. in saving a child from disgrace by paying a fine
career, the rule is different and rightly so. The amount imposed by a court of law, or
involved is not so insignificant or trivial. Hence, d. any similar act involving similar expenses

MUST BE AN ACT OF LIBERALITY disposable free portion are not subject to collation.
 not an act resulting in the creation of a Hence, they shall not be reduced as inofficious
relationship or CREDITOR AND DEBTOR.
Otherwise, the obligation of the child shall no Exception: They are subject to collation if they exceed
longer be to collate the amount paid or spent, one-tenth (1/10) of the sum which is disposable by
but to pay the estate such amount. The child will. But ONLY THE EXCESS shall be collated and it
becomes a debtor and if the amount is not shall be imputed against the LEGITIME OF THE
paid before the death of the decedent, he can BENEFICIARY.
always be held liable for the payment of the
debt. As a matter of fact, even if he repudiates Gifts in Cash or Money
his inheritance, he shall still be held liable for Notice that the wedding gifts must, by express
the full amount of his debt. provisions, consist of “jewelry” or “clothing” or “outfit.”
 On the other hand, if the payment is Q: How about CASH or MONEY or REAL
GRATUITOUS in character, the obligation of PROPERTY?
the beneficiary or donee would only be to A: It is submitted that by analogy, cash or money or real
collate the amount. And if he chooses to property, may be included within the scope of the
repudiate his inheritance, his position, will be Article, for what afterall is the difference? The contrary
similar to that of a stranger. The amount view, however, is given by Justices J.B.L. Reyes and
expended would then be imputable against Ricardo C. Puno.
the disposable portion. As a consequence,
the provision of Art. 1062 would be applicable. Art. 1071. The same things donated are not to be brought
to collation and partition, but only their value at the time
Q: Meaning of “debt” — The debt must be valid and of the donation, even though their just value may not
enforceable, otherwise the son is not benefited in any then have been assessed.
way A has a legitimate son B. To obtain a loan from a
bank, B had to have A act as his (B’s) guarantor. When
Their subsequent increase or deterioration and even
B could not pay, A had to pay for him. Is the amount
their total loss or destruction, be it accidental or
used collationable?
culpable, shall be for the benefit or account and risk of
Manresa answers this in the negative because in such the donee.
a case, the son would be not a donee of the father’s
generosity, but a debtor obliged to pay his father. Note Collation of the Value
that in this case, the father was himself bound to pay To bring back to the mass of the hereditary estate the
because he had consented to be a guarantor. Upon the same thing donated by the decedent during his lifetime
other hand, had the father paid of his own accord (and would be impracticable or even impossible at times.
not because he was a guarantor), the sum paid in Hence, the rule is that ONLY THE VALUE OF THE
satisfaction of this debt would clearly be collationable. THING DONATED shall be brought to collation. This
value must be the value of the thing at the time of the
donation, even though its just value may not then have
Q: Because a father acted as guarantor for the son, he been assessed.
paid P100,000. The son is therefore a debtor, not a
donee of the father. (See [a].). Later, when the father In the case of real property, the value may be stated in
died, the son repudiated the inheritance. Is he still the public instrument itself which conveys the property.
bound to pay the P10,000 to the estate? A:Yes. If the value is not stated therein or if is not agreed upon
by the interested parties, recourse may be made to
Q: Because a father pitied his son who had borrowed those appearing in tax assessments or cadastral
money he could not pay, the father paid P100,000. This surveys.
amount is ordinarily collationable. (Art. 1069). When
the father died, the son repudiated the inheritance. In In the case of personal property, in the absence of
this case, does the son have to pay the estate? assessments or agreements between the parties,
A: No, because he is not a debtor. But of course, the recourse may be made to expert appraisal. However,
amount used should be reduced, that is, the estate may whether the property is real or personal, there is no
recover from the son insofar as the legitimes of the question that even if the value has been expressed or
other compulsory heirs have been impaired. agreed upon, the same is not absolutely binding or
obligatory upon the parties.
Art. 1070. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit, shall not be The rule stated in the second paragraph, on the other
reduced as inofficious except insofar as they may hand, is in conformity with the rule that once the
exceed one-tenth of the sum which is disposable by donation is made or perfected, there is a transfer of
will. ownership. The donee becomes the owner of the thing
donated. Risks of loss or deterioration, must, therefore,
fall upon him (res perit domino). The same is true with.
Wedding Gifts
General Rule: Wedding gifts coming from parents and
ascendants consisting of jewelry, clothing, and outfit so Art. 1072. In the collation of a donation made by both
long as it does not exceed one-tenth (1/10) of the 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 The rule is different if the property donated was
her inheritance. movable. In such case, the co-heirs shall only have a
right to select an equivalent of other personal property
Rule for Donations Made by Both Parents of the inheritance at its just price. Absolute equalization
The rule stated in the above article is logical. Since, of all the heirs is impossible.
ordinarily, the parents act in concert whenever an
advance is given to a favorite child or to a child in need, Additional Ways of Equalization
the donation generally forms a part of the conjugal In the process of equalization, more rights are given to
property. the co-heirs who did not receive donations, if the
donations were of REAL PROPERTY
Hence, when the value of the thing donated is brought
to collation, one-half of the amount is brought to the Rights (if REAL property)
inheritance of the father, and the other half to that of • get property of same kind
the mother. However, that given by one alone shall be • if none, get cash or securities
brought to collation in his or her inheritance only. • if none, sell property to get cash
Q: A was legally married to B. They had a legitimate Rights (if PERSONAL property)
child C. Both parents agreed to give C a house during • get property of same kind
their lifetime. Later A died. When C participates in the • if none, get equivalent (in value) personal property
inheritance of A, how much should be collated by him? (no right to demand CASH or to demand a SALE
A: Only half the value of the house. (Art. 1072). to get cash)
Rules for Equalization of Shares of Heirs Example Art 1073: A has 2 children B and C. B had
Art. 1073. The donee’s share of the estate shall be been given a donation of an old car worth P100,000
reduced by an amount equal to that already received by during A’s lifetime. When A died, he left an estate worth
him; and his co-heirs shall receive an equivalent, as P900,000. Since B is supposed to receive a total of
much as possible, in property of the same nature, class P500,000 he will be given only P400,000. (He has
already received P100,000 by way of donation). C in
and quality.
turn should be given, if possible, a car in the estate
worth P100,000 and cash worth P400,000. If the car
Art. 1074. Should the provisions of the preceding article
cannot be given, as when the estate had only one car,
be impracticable, if the property donated was
Art. 1074 should be applied.
immovable, the co-heirs shall be entitled to receive its
equivalent in cash or securities, at the rate of quotation;
[NOTE: Notice that the law ordains not only equality in
and should there be neither cash nor marketable
value but also in kind, nature, class, and quality, if this
securities in the estate, so much of the other property as can be done.].
may be necessary shall be sold at public auction.
Art. 1075. The fruits and interest of the property subject
If the property donated was movable, the co-heirs shall
to collation shall not pertain to the estate except from
only have a right to select an equivalent of other
the day on which the succession is opened.
personal property of the inheritance at its just price.
For the purpose of ascertaining their amount, the fruits
Hence, after the determination of the legitime and the
and interest of the property of the estate of the same
free portion, or, in case of intestate succession after
determining the shares of each of the legal heirs, the kind and quality as that subject to collation shall be
donee’s legitime or legal share as the case maybe, made the standard of assessment.
shall be reduced by an amount equal to that
already received by him. Rules Regarding Fruits and Interest
→ His co-heirs shall, in turn, receive an When the property donated to one of the compulsory
equivalent, as much as possible, in property heirs, title is vested in such donee once the donation is
of the same nature, class and quality. This perfected. It is but natural that the fruits and interest of
equivalent is, of course, taken from the estate. the property donated shall also vest in the DONEE from
that time.
The situation contemplated in the first paragraph of Art.
1074, on the other hand, refers to a case in which the However, once the rights to the succession are opened
property donated is an immovable and it is by the death of the decedent-donor, the obligation to
impracticable to give the co-heirs an equivalent in collate the value of the thing or property donated also
property of the same nature, class and quality. arises. All of the heirs called to the succession acquire
→ In such case, the rule is to give the co-heirs some right with respect to what is collated. In other
its equivalent in cash or securities at the rate words, what is supposed to be collated, by legal fiction,
of quotation. becomes a part of the mass of the hereditary estate.
If this is also impracticable or impossible by reason of The heirs all become co-owners of such estate from the
lack of cash or marketable securities in the estate the very moment of the death of the decedent. Hence, it
only recourse would be to sell at public auction as follows that the fruits and interest from that moment
much of the other property as may be necessary. shall pertain to the HEREDITARY ESTATE.

D has two legitimate sons A and B. A had formerly been surviving spouse, and one acknowledged natural child.
given a donation of land as an advance of the At that time too, the land was already worth P4 million.
inheritance. Prior to D’s death, full ownership over the How much value of land, if any, must be returned to the
land and its fruits belong to A, but from the moment D estate?
dies, all the fruits thereof up to the moment distribution
is made, belong to the estate (should be added in the A: Because of the presence here of a legitimate child
computation of the net hereditary estate). Thus, all will (legitime — 1/2), a surviving spouse (legitime — 1/4),
participate in said fruits. and an acknowledged natural child (legitime — 1/4),
there is no more disposable portion, and the donation
is totally inofficious. BUT this should not mean that the
Art. 1076. The co-heirs are bound to reimburse to the
entire land must now be returned. This is because what
donee the necessary expenses which he has incurred
had been donated was only P1 million. Therefore, only
for the preservation of the property donated to him, 1/4 of the present value of the land (1/4 of the land
though they may not have augmented its value. itself) must be returned. The remaining 3/4 inures to the
benefit of the donee who had become its owner since
The donee who collates in kind an immovable, which has the time of the perfection of the donation. Of course, all
been given to him, must be reimbursed by his co-heirs the fruits of said 1/4 also belong to the estate, that is,
for the improvements which have increased the value the fruits accruing since the death of the decedent.
of the property, and which exist at the time of the (See also Art. 1075).
partition is effected.
Art. 1077. Should any question arise among co-heirs
As to works made on the estate for the mere pleasure of upon the obligation to bring to collation or as to the
the donee, no reimbursement is due him for them; he things which are subject to collation, the distribution of
has, however, the right to remove them, if he can do so the estate shall not be interrupted for this reason
without injuring the estate. provided adequate security is given.
Rules for Returning in Kind Questions Arising from Collation
• Although this Article speaks of collation “in kind,” • Questions on collation do not interrupt distribution
this is strictly speaking not collation, but a — as long as adequate security is given.
RETURNING in KIND.
• Said questions may be threshed out during the
administration proceedings.
This happens when:
• Just because more than thirty years have elapsed
• the donation is totally reduced because it is
since the perfection of the donation, it does not
completely inofficious. AND
necessarily follow that collation is barred by
• the donee either has no money or does not desire prescription, for prescription on said matter did not
to reimburse in money. run as long as the donor was still alive. (Ignacio, et
al. v. Ignacio, et al., [C.A.], 5465-R, prom. July 31,
Comment of Justice J.B.L. Reyes 1951).
“The provisions of Art. 1076 could be applied only to
• Only properties received by gratuitous title may be
the case of a donation that becomes revoked as
the subject of collation. (Hernaez v. Hernaez, 1
inofficious in its totality under the rules of Art. 912; it is
Phil. 718). Thus, collation may, in proper cases, be
only then that the very same thing donated must be
done, whatever be the character or nature of the
returned. But that is not collation. Art. 1076 in its
donation — simple, remunerative or onerous —
present form should be placed with the other articles
but in the last (remunerative or onerous), only
treating of the reduction of donations, in the chapter of
insofar as they exceed the value of the service or
legitimes.” (Lawyer’s Journal, Dec. 31, 1950, p. 618)
of the charge.
• Final judgments by the proper court regarding
[NOTE: There are instances when the property itself
questions on collation are binding both on the
cannot be returned, as when it is now in the possession
person who raised the issue, and on the heirs
and ownership of a third person in good faith.].
concerned.
Comment of the Code Commission • When Collation Is Prematurely Raised: When
Art. 1076 of the new Civil Code makes mention of the estate proceedings have not yet reached the
necessary, useful, and voluntary improvements that stage of partitioning and then distributing the
may have been made on the property subject to property, any question of collation that is brought
collation, a subject not found in the old Civil Code. The up can be regarded as having been prematurely
Commission believes that although these rules may be raised (Vda. de Rodriguez v. Court of Appeals L-
inferred from the provisions of the present law 39532, July 20, 1979).
governing possession, it is not out of place to have
them expressly formulated under the section on
Collation.
Problem if Value of Donation Increases
Problem if Value of Donation Increases
Q: PROBLEM IF VALUE OF DONATION INCREASES
D donated to F, a parcel of land worth P1 million. At the
time of D’s death, he had one legitimate son, one

Articles 1078 to 1105: Partition | Effects of Partition | Rescission and Nullity of Partition Vice Dean Castillo-Taleon
SECTION 6 (2) second, by an ordinary action for partition;
PARTITION AND DISTRIBUTION OF THE ESTATE (3) third, by judicial summary settlement; and
(4) fourth, by administration proceedings.
SUBSECTION 1
PARTITION Who May Effect Partition
The partition may be effected either:
Art. 1078. Where there are two or more heirs, the whole (1) by the decedent himself during his lifetime:
estate of the decedent is, before its partition, owned in a. by an act inter vivos or
common by such heirs, subject to the payment of debts b. by will, or
of the deceased. (2) by a third person designated by the decedent,
(3) by the heirs themselves, or
Art. 1079. Partition, in general, is the separation, division (4) by a competent court in accordance with the
New Rules of Court.
and assignment of a thing held in common among those
to whom it may belong. The thing itself may be divided,
Extrajudicial Partition
or its value.
For a partition (or extrajudicial settlement) to be valid,
Section 1, Rule 74 of the Rules of Court, requires the
Concept of Partition concurrence of the following conditions:
Partition (1) the decedent left no will;
= in general, is the separation, division and (2) the decedent left no debts, or if there were
assignment of a thing held in common among debts left all had been paid;
those to whom it may belong. The thing itself may (3) the heirs and liquidators are all of age, or if
be divided, or its value (Art. 1079). they are minors, the latter are represented by
= Every act which is intended to put an end to their judicial guardian or legal
indivision among co-heirs and legatees or representatives; and
devisees is deemed to be a partition, although it (4) the partition was made by means of a public
should purport to be a sale, an exchange, a instrument or affidavit duly filed with the
compromise, or any other transaction (Art. 1082). Register of Deeds.
Nature and Purpose of Partition NOTE: Extrajudicial partition cannot constitute a

• The idea of partition involves not only the setting partition of the property during the lifetime of its owner.
apart and division of a thing owned in common but Partition of future inheritance is prohibited by law
also the assignment or allotment of the respective
shares or parts of the heirs, so that they may enjoy Extrajudicial Partition Made by the TESTATOR
and possess the same separately and exclusively. • A testator can make the partition either in a will or
• The purpose of partition is to put an end to co- in any document inter vivos.
ownership. • In no case must the partition prejudice the legitime.
Classification of Partition Extrajudicial Partition Made by a Decedent (By an

As regards its extent: it may be total or partial; Act Inter Vivos)
• It is total, when all of the things comprised in the Since Art. 1080 speaks of “persons,” it follows that
whole estate are divided among all of the even if a person dies intestate, it would still be possible
participants or co owners. for him to have made a partition inter vivos. He may,
• It is partial, when some of the things are divided for example, have divided the properties having in mind
among all or some of the participants or co- the shares of intestacy.
owners, the rest remaining in a state of indivision
or community ownership. Extrajudicial Partition Made by the Heirs
This can be done as long as:
As regards its duration: it may be provisional or definite; (1) there are NO debts
• It is provisional, when the division is merely (2) everyone concerned is OF AGE or represented by
temporary or transitory until a final or definite GUARDIANS.
division is made.
• It is definite, when it is stable, final and absolute. ORAL PARTITION:
• This can be done ORALLY, and the same would
As regards the manner or method by which it is done: be valid if freely entered into. This is because a
it may be extrajudicial or judicial. partition is not exactly a conveyance for the reason
• It is extrajudicial, when it is effected by the that it does not involve transfer of property from
testator himself, or by some person named by one to the other but rather a confirmation by them
such testator, or by the participantsor co-owners of their ownership of the property. Moreover, even
themselves amicably or by common accord. if considered a conveyance, still the Statute of
• It is judicial, when the court intervenes in the Frauds does not apply to completed or partially
division executed acts.
• To establish oral or parol partition however, the
Under the New Rules of Court, there are four ways by partition itself must be clearly proved. Hearsay
which the estate may be partitioned. They are: testimony would consequently not be allowed
(1) first, by extrajudicial settlement;

• Of course, to register the agreement (to prejudice 1524, old Civil Code), while 30 days were given to
third parties), a public instrument is needed. the co-heir. (Art. 1067, old Civil Code).
Indeed, an oral partition between heirs is NOT
binding on third persons. (Ladisla v. Pestano, L- Generally, a co-heir cannot acquire the shares of the
7623, Apr. 29, 1959). others by prescription. And this is so, as long as he
• Moreover, if the extrajudicial partition is by reason recognizes expressly or implicitly the existence of the
of the provisions of a will, the will must first be coheirship (Sebial v. Sebial 64 SCRA 385).
probated, even if there are NO DEBTS, and court
approval is needed for said extrajudicial partition It Under Article 1078 of the Civil Code, “where there are
is presumed there are NO debts if within two years two or more heirs, the whole estate of the decedent is,
from the death of the deceased, no creditor has before its partition, owned in common by such heirs,
petitioned for letters of administration. subject to the payment of debts of the deceased.’’ Co-
ownership is extinguished when the portions are
Summary Adjudication Thru an Affidavit concretely determined and technically described
If there is only ONE heir, there is no need for a judicial (Mendoza v. CA GR 44664, July 31, 1991).
declaration of his heirship, and he may summarily
adjudicate to himself the entire estate by means of an Q:T has two children A and B. T dies leaving A and B
affidavit filed in the office of the Register of Property, in P100,000 cash and a piece of land.
accordance with Sec. 1, Rule 74, Rules of Court A: If the property is not yet partitioned, A and B are co-
owners as co-heirs. Therefore, if one should sell his
Judicial Partition share to a stranger, the right of legal redemption is that
• This may be done in the order of distribution made provided for by law for co-heirs. (Art. 1088).
by the court, and can be based on a draft or project
of partition. (But no delivery could be made till after Q: Now then suppose the inheritance is partitioned this
the project of partition is approved). way: A and B get P50,000 cash each; but they will
• The court should not follow the distribution made continue to enjoy the land undivided. And suppose A
in the will, if said distribution is not in accordance later on sells to a stranger his right or share in the land,
with law. what rules on legal redemption should apply?
• The court is allowed to compel the executor or A: The rules on a sale by a co-owner this time (Art.
administrator to submit a draft or project of 1620), and not by a co-heir. (Art. 1088). Reason: There
partition so that the court may be sufficiently has already been a partition of the inheritance.
informed of the properties it has to distribute. For
this purpose, the executor or administrator may be Art. 1080. Should a person make a partition of his estate
threatened with contempt in case of disobedience. by an act inter vivos, or by will, such partition shall be
respected, insofar as it does not prejudice the legitime
[NOTE: Unless the court orders the submission of of the compulsory heirs.
the project, the executor or administrator is NOT
require to submit one. As a matter of fact, the A parent who, in the interest of his or her family, desires
order of distribution may be made even without
to keep any agricultural, industrial, or manufacturing
such project.].
enterprise intact, may avail himself of the right granted
him in this article, by ordering that the legitime of the
• Even before debts of the estate have been paid or
other children to whom the property is not assigned, be
before final accounting by the administrator or
executor, partial or advanced distribution of the paid in cash.
estate may be made by the court. (This is so,
particularly when the heirs need money.) Partition by Decedent
• To safeguard creditors, a bond or a deposit may Under this article, there are two ways by which a
be required. Moreover, the court may provide that person may effect the partition of his own property or
the distribution is without prejudice to the superior estate:
rights of creditors. (1) by an act inter vivos or
• If the properties have already been distributed, the (2) by will.
creditors can still demand recovery from the heirs.
The only limitation imposed upon the power of such
• Pending administration proceedings in the probate
person to effect the partition is that it must not
court, it is improper to fi le a separate independent
prejudice the legitime of compulsory heirs.
action for partition.
• A judicial partition is not valid and does not bind
Formalities
heirs who were not parties thereto Therefore,
If the partition is made by an act INTER VIVOS (other
those deprived of their rightful shares may still
than by will), it would seem that no formalities are
bring an action reivindicatoria within the proper
prescribed by the Article. It may be oral or written and
prescriptive period
need not be in the form of a will, provided that the
• The period for legal redemption for co-owners is partition does not prejudice the legitime of compulsory
30 days from notice in writing by the vendor; for heirs. The partition will, of course, be effective only
co-heirs, the period is also one month — 30 days. after death. It does not necessarily require the
Thus, under the new Civil Code, there is NO formalities of a will for after all, it is not the partition that
difference in the period; BUT under the old Civil is the mode of acquiring ownership. Neither will the
Code, only 9 days were given to the co-owner (Art.

formalities of a donation be required since donation will probate court can be called upon to decide the
not be the mode of acquiring the ownership here after conflict.
death; since no will has been made, it follows that the
mode will be succession (intestate succession). It must be noted that the law states that the mere power
Besides, the partition here is merely the physical of partition may be delegated either by an act inter
determination of the part to be given to each heir. vivos or by an act mortis causa. Hence, following the
interpretation used in Art. 1080, the delegation may be
The partition by WILL, must, of course, be effected by made either by an act inter vivos such as in a public
a valid will duly executed in accordance with the instrument or any other writing or by a will executed in
formalities on wills prescribed by law. accordance with all of the formalities prescribed by law.
Partial Distribution Art. 1082. Every act which is intended to put an end to
A partial distribution of the decedent’s estate pending indivision among co-heirs and legatees or devisees is
the final determination of the estate or intestate deemed to be a partition, although it should purport to
proceedings should as much as possible be be a sale, an exchange, a compromise, or any other
discouraged by the courts, and unless in extreme transaction.
cases, such form of advances of inheritance should not
be countenanced. Creditors and the rightful heirs must
Art. 1083. Every co-heir has a right to demand the
be assured of their shares. (Gatmaitan v. Medina, L-
division of the estate unless the testator should have
14400, Aug. 5, 1960).
expressly forbidden its partition, in which case the
Preservation of Enterprise period of indivision shall not exceed twenty years as
The second paragraph of the Article indicates one way provided in Article 494. This power of the testator to
of preserving intact an enterprise prohibit division applies to the legitime.
Art. 1081. A person may, by an act inter vivos or mortis Even though forbidden by the testator, the co ownership
causa, intrust the mere power to make the partition terminates when any of the causes for which
after his death to any person who is not one of the co- partnership is dissolved takes place, or when the court
heirs. finds for compelling reasons that division should be
ordered, upon petition of one of
The provisions of this and of the preceding article shall the co-heirs.
be observed even should there be among the co-heirs a
Art. 1084. Voluntary heirs upon whom some condition
minor or a person subject to guardianship; but the
has been imposed cannot demand a partition until the
mandatory, in such case, shall make an inventory of the
condition has been fulfilled; but the other co-heirs may
property of the estate, after notifying the co-heirs, the
demand it by giving sufficient security for the rights
creditors, and the legatees or devisees.
which the former may have in case the condition should
be complied with; and until it is known that the condition
Partition by Third Person
has not been fulfilled or can never be complied with, the
What is intrusted or delegated in the above article is the
mere power of partition not the power to distribute the partition shall be understood to be provisional
hereditary estate.
When Partition is Effected
Hence, the act of the person delegated with such As long as the co-ownership ceases to exist, there is a
power is that of a mere agent or mandatory. The partition. If after partition, certain properties are still
mere physical act of partition, which must not be supposed to be owned in common, there can be a later
confused with the act of distribution, must be done partition of this.
pursuant to the latter.
Q: A, B, and C, were co-heirs. It was agreed to sell the
Meaning of ‘Mere Power to Make the Partition’ property, and give the proceeds to A. The agreement
= This is just the power to make a physical division is oral. Can this be a valid partition?
of the hereditary property. A: Yes, because the indivision has ceased.
The third person is not allowed to make the disposition If in the example given, A demands the sale, but dies
or distribution of property — as for example — the before the sale is actually effected, is his right to the
power of giving one heir 2/3 and another heir 1/3 is not proceeds transmitted to his own heir?
allowed under the law. The disposition must have been A: Yes.
made by the decedent or testator himself.
The sale by the heirs of the property which they
‘Mandatary’ Defined inherited from their father puts an end to their co-
The mandatary is the person entrusted to make the ownership over it. (Art. 1082, Civil Code). Hence, there
partition. is no further need for them to partition it, the purpose of
• The mandatary should not be a co-heir. partition being to separate, divide, and assign a thing
• The partition by the mandatary may be either held in common among those to whom it may belong
approved or rejected by the heirs. If rejected, the (Gabila v. Perez, GR 29541, Jan. 27, 1989).

Who can Demand Partition legitime. This is the only burden that can be
The partition of the estate may be demanded by any of imposed on the legitime, except of course the
the following: reserva troncal which is imposed on the legitime of
(1) any compulsory heir; ascendants in certain cases.
(2) any voluntary heir; • If the prohibition to partition is for more than 20
(3) any legatee or devisee; and years, the excess is void.
(4) any person who has acquired an interest in the • Even if a prohibition is imposed, the heirs by
estate. mutual
• agreement can still make the partition, and a party
When Voluntary Heirs Can Demand the Partition thereto cannot afterwards ask for its rescission
This Article distinguishes between because he would be in estoppel. There would be
(1) pure heirs - can demand partition anytime, no estoppel however if there was vitiated consent.
subject to Art. 1083. If together with them,
there are conditional heirs, sufficient security Art. 1085. In the partition of the estate, equality shall be
must be given by the pure heirs to safeguard observed as far as possible, dividing the property into
the rights of the conditional heirs.
lots, or assigning to each of the co-heirs things of the
(2) conditional (suspensive) heirs - cannot
same nature, quality and kind.
demand partition till the condition is fulfilled
When Partition Can Be Demanded Equality in the Partition

(1) As long as the partition is not expressly prohibited, If a project of partition is submitted to the probate court,
partition can be demanded anytime. This right it must allow the heirs concerned to present proof of the
does not prescribe and can apply to a co-legatee. reasonableness or unreasonableness of the project,
But the heir desiring partition must make parties to otherwise the heirs may be said to have been deprived
the suit all persons interested in the estate. of their property without the due process of law.
(2) But partition can be demanded only if the co
ownership still exists. Therefore, if one of the co- Indeed, without the necessary hearing, to compel the
heirs has by adverse possession for the needed heirs to participate in the drawing of lots of the
time acquired exclusive ownership over the properties grouped in accordance with the value of the
property, partition would no longer lie. lands, arbitrarily and unilaterally fixed by a
commissioner appointed by the court, without allowing
When partition cannot be demanded them to dispute the fair market value of the shares,
The partition, however, cannot be demanded in the would be manifestly unfair. (Cabaluna, Jr. v. Cordova,
following cases: L-15746, Feb. 29, 1964).
(1) when such partition has been expressly
prohibited by the testator himself for a period Art. 1086. Should a thing be indivisible, or would be much
which shall not exceed twenty years; impaired by its being divided, it may be adjudicated to
→ even though the partition is prohibited by the one of the heirs, provided he shall pay the others the
testator, the co-ownership may still be excess in cash.
terminated provided that any of the causes for
which a partnership may be dissolved exists, Nevertheless, if any of the heirs should demand that the
or that the court finds for compelling reasons thing be sold at public auction and that strangers be
that a division should be ordered. allowed to bid, this must be done.
Consequently, the existence of any of the
causes for the dissolution of a partnership Indivisible Object
enumerated in Arts. 1830 and 1831 would be • Note that if even ONE heir should demand a public
sufficient in order to justify a person entitled to auction, this must be done.
do so to demand for partition • Assignment or sale of real estate by
(2) when the coheirs have agreed that the estate commissioners. — When it is made to appear to
shall not be divided for a period which shall not the commissioners that the real estate, or a portion
exceed ten years, renewable for another ten thereof, cannot be divided without great prejudice
years; to the interests of the parties, the court may order
(3) when such partition is prohibited by law; and it assigned to one of the parties willing to take the
→ the best examples would be family homes and same, provided he pays to the other parties such
party walls sum or sums of money as the commissioners
(4) when to partition the estate would render it deem equitable, unless one of the parties
unserviceable for the use for which it is interested asks that the property be sold, instead
intended. of being so assigned, in which case the court shall
→ it must be noted that what is prohibited is order the commissioners to sell the real estate at
merely the physical division of the estate. The public sale and the commissioners shall sell the
partition may still be demanded if made in same accordingly
accordance with Art. 1086 of the Code
Prohibition to Partition
• The prohibition to partition for a period not
exceeding twenty years can be imposed on the

Art. 1087. In the partition the co-heirs shall reimburse (6) the demand must be made within a period of one
one another for the income and fruits which each one of month from the time of notification in writing;
them may have received from any property of the (7) the redemptioner must reimburse the price of the
estate, for any useful and necessary expenses made sale.
upon such property, and for any damage thereto
through malice or neglect. First Requisite — Two or More Heirs
Heirs — include legatees and devisees.
Reimbursement by Co-Heirs
Reimbursement must be made of: Second Requisite — Sale of Hereditary Rights
(1) income and fruits • There must be a “sale,” not another transaction,
(2) useful and necessary expenses like donation.
(3) damages thru malice or neglect • But an onerous donation, or an adjudicacion en
pago is equivalent to a sale. The same thing is true
The reimbursement can be sought in an action for of barter.
judicial partition. • The “sale” must be an actual one (not merely
contemplated).
But even if the partition is extrajudicial, it is submitted • The “sale” may be a voluntary one or an
that an action for reimbursement would lie by itself. involuntary (forced) sale (as in the case of sales
on execution).
Art. 1088. Should any of the heirs sell his hereditary • What must have been sold are “hereditary
rights to a stranger before the partition, any or all of the rights,” and not specific object or objects, nor
co-heirs may be subrogated to the right of the rights in specific object.
purchaser by reimbursing him for the price of the sale,  Rights to “future” inheritance are not
provided they do so within the period of one month from hereditary rights and therefore do not come
the time they were notified In writing of the sale by the within the scope of the present Article. As a
vendor. matter of fact, a sale of rights to “future”
inheritance is VOID. The inheritance is
Legal Redemption in Favor of Co-Heirs “future” if the person from whom the property
It will be noted that the right of legal redemption is expected to come is still alive. However,
recognized by the above article is predicated upon the once there has been a death, the “right of
fact that the sale made by the co-heir is effected inheritance is not merely in the nature of a
before the partition of the estate but after the death hope,” but an actual right. And this is so, even
of the decedent. PRIOR to partition. This is because the right
accrues from the moment of death.
Since the rights to the succession are transmitted at the ✓ But a sale of hereditary rights before partition
very moment of the death of the decedent, there is no is valid, subject only to the legal redemption
question about the right of an heir to alienate his given in Art. 1088.
undivided share in the inheritance. However, he has
an obligation to notify the other co-heirs of the Third Requisite — Buyer Must Be a Stranger
alienation. The purpose of allowing redemption is to keep
strangers out of the common ownership, since this
Such notification must be made in writing. In such case, would be undesirable, and to reduce the number of co-
the co-heirs are given one month from the time of owners, because the law seeks to discourage co-
such notification within which to exercise their ownership. Therefore, if the buyer is himself one of the
right of redemption by reimbursing the vendee for the co-heirs, the others cannot redeem for the reason that
price of the sale. the law would not exist.
Requisites of Right of Redemption: (Jurado) SSBOR “Strangers” refers to ALL who are:
(1) that there must be Several co-heirs; (1) not heirs
(2) that one of them Sells his rights to a stranger; (2) heirs who do not succeed (like an
(3) that the sale is made Before the partition is incapacitated child)
effected,
(4) that the right of redemption must be exercised by Legatees, devisees, creditors — are “strangers.”
one or more of the co-heirs within a period of One
month to be counted from the time that they were Fourth Requisite — Sale Before Partition
notified in writing by the coheir vendor; and • If the sale is made after partition, Art. 1088 is not
(5) that the vendee is Reimbursed for the price of the applicable. If after said partition some properties
sale. are still held in common, and a sale is made of an
aliquot share therein, Art. 1620 is the article to
Requisites of Right of Redemption: (Paras) apply.
(1) there must be two or more heirs; • Art. 1088 does not apply if the sale is after the
(2) one must sell his hereditary rights; project of partition is made, even if the sale be
(3) the buyer must be a stranger; before the approval by the court of the partition,
(4) the sale must be before partition; provided that the would-be redemptioner was also
(5) at least one co-heir must demand the redemption; a party to the project of partition. This is because

the approval retroacts to the date when the project been divided between two or more co-heirs, the title
was made. shall be delivered to the one having the largest interest,
and authentic copies of the title shall be furnished to the
Fifth Requisite — At Least One Co-Heir Must other co-heirs at the expense of the estate. If the
Demand the Redemption interest of each co-heir should be the same, the oldest
• If a person is not a co-heir, he cannot demand the shall have the title.
redemption. Thus, the wife of a co-heir cannot
make use of Art. 1088. Meaning of ‘Title’
• Any of the co-heirs can redeem, no matter from “Title’’ here refers to the document evidencing the right
what line, as long as he is still a co-heir. (Thus, if of ownership, and not to the right itself. This is evident
he himself has sold his right, he cannot redeem, from the phrase “authentic copies.”
except if he has reacquired what he sold by the Order of preference if some properties remain
exercise of the right of conventional redemption. undivided:
• If more than one co-heir desires to redeem, this is • largest interest
alright, regardless as to who made the demand fi • if same interest — the oldest heir
rst, as long as the demand is within the legal
period. Thus, all who are entitled to redeem may SUBSECTION 2
redeem — in proportion to their respective shares EFFECTS OF PARTITION
in the inheritance — provided, of course, that
redemption in favor of one has not yet taken place. Art. 1091. A partition legally made confers upon each
• A stranger who purchases a co-heir’s rights is not heir the exclusive ownership of the property
a coheir, hence, he is not entitled to redeem if adjudicated to him.
another co-heir sells his rights to another stranger.
• The right to redeem is therefore personal, and Effect of Partition Legally Made
cannot be transmitted to others, except that the co- • Once partition and distribution are made, the
heir’s own heir can exercise his rights in case of estate is finally settled.
death.
• The partition results in EXCLUSIVE ownership
over the part or property adjudicated.
Sixth Requisite — Demand Within One Month • And relatives who are neither compulsory heirs nor
from Notification in Writing voluntary heirs nor devisees or legatees cannot
• Unless demand for redemption is made within one question a judicial partition made as a
month, the right to redeem will lapse. consequence of a validly probated will, particularly
• The demand must be within one month from the if the probate had long before become final.
time the vendor informs the would-be
redemptioner in writing that there has been an Art. 1092. After the partition has been made, the co heirs
ACTUAL sale. shall be reciprocally bound to warrant the title to, and
the quality of, each property adjudicated.
Q: Suppose there never was a demand, but the other
co-heirs knew of the fact of sale, would the period of
Warranties
one month begin to run?
Warranty of:
A: Yes, from the moment of knowledge. For the only
purpose of notification is to inform or give knowledge. • title (eviction)
The law does not require a useless formality. • quality (and hidden defects)
Warranty Against Eviction

Seventh Requisite — The Redemptioner Must
Reimburse the Price of the Sale • For warranty to the first to be enforceable, it is not
necessary that the heir be deprived of full
Q: A, B, and C are co-heirs. Before partition, A sold his
ownership. It is enough that there be a burden or
hereditary rights to X for P100,000. X then sold to Y for
encumbrance that must be respected.
P200,000. If B wants to redeem, how much must he
• Eviction here does not have to be by final
pay Y?
judgment before recourse to the warranty can be
A: Only P100,000. This is true even if the rights have
sought, as long as no heir objects.
been resold. The purpose of the article cannot be
evaded by a reconveyance of the interest to a third
Nature of the Warranty
person at a higher price. Subsequent buyers get the
The warranty is:
property burdened with the right of co-heirs to effect a
• reciprocal and proportionate. (Art. 1093).
redemption at the price for which the heir who sold it
parted with it. • may be waived. (See Art. 1096).
Art. 1089. The titles of acquisition of ownership of each Art. 1093. The reciprocal obligation of warranty referred
property shall be delivered to the co-heir to whom said to in the preceding article shall be proportionate to the
property has been adjudicated. respective hereditary shares of the co-heirs; but if any
one of them should be insolvent, the other co-heirs
Art. 1090. When the title comprises two or more pieces shall be liable for his part in the same proportion,
of land which have been assigned to two or more co- deducting the part corresponding to the one who should
heirs, or when it covers one piece of land which has be indemnified.

Those who pay for the insolvent heir shall have a right of SUBSECTION 3
action against him for reimbursement, should his RESCISSION AND NULLITY OF PARTITION
financial condition improve.
Art. 1097. A partition may be rescinded or annulled for
Reciprocal and Proportionate Warranty the same causes as contracts.
This Article deals with:
(1) proportionate liability Rescission or Annulment of the Partition
(2) responsibility in the meantime for another’s Rescission presupposes an ordinarily valid contract,
insolvency but there is an extrinsic defect, like prejudice to
(3) right of reimbursement creditors.
Art. 1094. An action to enforce the warranty among Annulment presupposes a contract with an intrinsic
coheirs must be brought within ten years from the date defect, like the vices of consent (fear, force, etc.)
the right of action accrues. The presence of fraud, excusable mistake, or
inadvertence makes a partition annullable.
Prescription of the Warranty: Ten years from the
date the right of action accrues. But mere disregard of the provisions of the will, will not
annul a partition, if everybody concerned had freely
given his consent, for all would be in estoppel.
Art. 1095. If a credit should be assigned as collectible,
the co-heirs shall not be liable for the subsequent When Action for Partition Prescribes
insolvency of the debtor of the estate, but only for his Although as a general rule, an action for partition
insolvency at the time the partition is made. among coheirs does NOT prescribe, this is true only
as long as one or some of them do not hold the property
The warranty of the solvency of the debtor can only be in question under an adverse title. The statute of
enforced during the five years following the partition. limitations operates, as in other cases, from the
Co-heirs do not warrant bad debts, if so known to, and moment such adverse title is asserted by the
accepted by, the distributee. But if such debts are not possessor of the property.
assigned to a co-heir, and should be collected, in whole
or in part, the amount collected shall be distributed Thus, if an extrajudicial settlement is executed by
proportionately among the heirs. SOME heirs, stating that they are the SOLE heirs, and
who as a consequence obtained transfer certificates of
Warranty of Debts titles in their names (to the exclusion of the others), the
There may be: excluded ones cannot successfully ask for the
• good debts (collectible debts) annulment of the partition if the period for such
• bad debts annulment has already prescribed (4 years from the
discovery of the fraud, i.e., from the time the instrument
Warranty for good debts of partition is registered — since registration is
• warrants that the debtor is solvent at the time constructive notice to the entire world).
of partition (not later)
• good for 5 years — following the date of the Prescription, as a rule, does not run in favor of a co-
partition heir or co-owner as long as he expressly or impliedly
recognizes the co-ownership. Mere refusal to accede
There is no warranty for bad debts, so an heir accepts to a partition, without specifying the grounds for such
them at his own risk. refusal, cannot be considered as notice to the other co-
owners of the occupant’s claim of title in himself in
repudiation of the co-ownership (Heirs of Maningding
Art. 1096. The obligation of warranty among co-heirs v. CA 85 SCAD 357 1997).
shall cease in the following cases:
(1) When the testator himself has made the partition,
Q: Can you give an instance when partition is said to
unless it appears, or it may be reasonably presumed,
be “premature”?
that his intention was otherwise, but the legitime shall A: This happens when ownership of the lot is still in
always remain unimpaired; dispute. In a situation where there remains an issue as
(2) When it has been so expressly stipulated in the to the expenses chargeably to the estate, partition is
agreement of partition, unless there has been bad faith; inappropriate. In estate settlement proceedings, there
(3) When the eviction is due to a cause subsequent to the is a proper procedure for the accounting of all
partition, or has been caused by the fault of the expenses for which the estate must answer.
distribute of the property.
Art. 1098. A partition, judicial or extra-judicial, may also
When Warranty Ceases: Example of par. 3 — Failure be rescinded on account of lesion, when any one of the
of heir to interrupt adverse possession by another is
co-heirs received things whose value is less, by at least
clearly his own fault and he may lose the property by
onefourth, than the share to which he is entitled,
prescription.
considering the value of the things at the time they were
adjudicated.

Rescission on Account of Lesion Art. 1101. The heir who is sued shall have the option of
• The lesion or damage must be at least 1/4, indemnifying the plaintiff for the loss, or consenting to a
otherwise rescission will not lie. (Garcia v. new partition.
Tolentino, 25 Phil. 102).
• If less than 1/4, the proper action is one for Indemnity may be made by payment in cash or by the
damages. If in the partition anyone of the co-heirs delivery of a thing of the same kind and quality as that
should receive a share whose value is less, by at awarded to the plaintiff.
least one-fourth (1/4), than the share to which he
is entitled, considering the value of the things at If a new partition is made, it shall affect neither those
the time they were adjudicated, the partition,
who have not been prejudiced nor those who have not
whether judicial or extrajudicial, may be rescinded
received more than their just share.
on account of the lesion.
Under Art. 1381, there are also two cases where
contracts may be rescinded on account of lesion; Option of the Suing Heir
(1) first, those which are entered into by The defendant heir, despite a proper ground for
guardians whenever the wards whom they rescission, is still given an option:
represent suffer lesion by more than one- • Indemnification or
fourth of the value of the things, which are the • a new partition
object thereof; and
(2) second, those agreed upon in representation NOTE: The plaintiff must necessarily be one who
of absentees, if the latter suffer the lesion suffered the lesion referred to in the law, so, if he has
stated in the preceding number. in fact received more than his share, he cannot
successfully ask for rescission (Cadiz v. Cabuniag, 56
If the partition, however, was effected by the decedent Phil. 271).
himself either by an act inter vivos or by will, it cannot
be impugned on the ground of lesion. This rule is Art. 1102. An heir who has alienated the whole or a
subject to two exceptions: considerable part of the real property adjudicated to
(1) first, when the legitime of compulsory heir is him cannot maintain an action for rescission on the
thereby prejudiced; and ground of lesion, but he shall have a right to be
(2) second, when it appears or may reasonably indemnified in cash.
be presumed, that the intention of the testator
was otherwise. When No Rescission Can Prosper: Reason for
Article: Rescission requires mutual restitution.
Art. 1099. The partition made by the testator cannot be
impugned on the ground of lesion, except when the Art. 1103. The omission of one or more objects or
legitime of the compulsory heirs is thereby prejudiced, securities of the inheritance shall not cause the
or when it appears or may reasonably be presumed, rescission of the partition on the ground of lesion, but
that the intention of the testator was otherwise. the partition shall be completed by the distribution of
the objects or securities which have been omitted.
When Partition by Testator Can Be Rescinded
Because of Lesion Preterition of Objects in the Partition
This Article applies, whether the lesion is 1/4, more • This involves a preterition, not in the institution, but
than 1/4, or less than 1/4 — thus, the partition made by in the partition, of one or more objects.
the testator may still be rescinded: • Preterition of an object in a will gives rise to mixed
(1) If the legitime is impaired. succession.
(2) If the intent of the testator is for his partition to
• Preterition of an object in the partition does not
be rescinded should there be lesion.
give rise to rescission.
Art. 1100. The action for rescission on account of lesion

Art. 1104. A partition made with preterition of any of the
shall prescribe after four years from the time the
compulsory heirs shall not be rescinded, unless it be
partition was made.
proved that there was bad faith or fraud on the part of
the other persons interested; but the latter shall be
Prescription of Rescission proportionately obliged to pay to the person omitted the
If brought after more than 4 years, the action for
share which belongs to him.
rescission will fail. (Alforque v. Veloso, 65 Phil. 227).
It has been held that in case of a judicial partition, the Preterition of Compulsory Heirs in the Partition
four-year period begins to run not from the time of the This involves a preterition of compulsory heirs, not in
project of partition but from the time there is court the institution, but in the partition.
approval, for had it been disapproved by the court, it
would have been void. (Samson v. Araneta, 60 Phil. Such preterition in the partition will NOT cause
27) rescission except if there was:
. (1) fraud
(2) bad faith

If the exception is present, the partition can be property was sold to Calaliman. The document was inscribed
considered not valid. (Gemora v. Yaptico, 52 Phil. 616). in the Register of Deeds. On Dec. 17, 1954, another group of
heirs also sold to Calaliman their shares and participation in
the same parcel of land. The deed of sale was registered in
[NOTE: An acknowledged natural child preterited in the
the Register of Deeds of Iloilo. On May 7, 1955, a third group
partition can bring an action for recovery of his share of heirs, Garcia, et al., sued Calaliman with the Court of First
from the other heirs to whom the property has been Instance for legal redemptionof the 3/4 portion of the parcel of
adjudicated. land inherited by the heirs from Gelacio, which portion was
sold by their co-heirs to Calaliman. Undisputedly, Garcia, et
Art. 1105. A partition which includes a person believed to al. did not receive notification in writing about the sale of the
hereditary interest of some of their co-heirs in the parcel of
be an heir, but who is not, shall be void only with respect
land they inherited from Gelacio, although in a letter dated
to such person. June 23, 1953, Garcia wrote one of his co-heirs, an uncle,
proposing to buy the hereditary interests of his coheirs in their
Intrusion of a Stranger in the Partition unpartitioned inheritance. Although Garcia asked that his
• Instead of a preterition here, there is intrusion. letter be answered, there is no proof that he was favored by
one. Garcia, et al., came to know that their co-heirs were
• Nevertheless, the partition is not completely void.
selling the property on December 3, 1954 when one of the
• Only the part corresponding to the non-heir is heirs asked Garcia to sign a document because the land they
VOID. inherited was going to be sold to Calaliman. The document
• Those who are able to get shares, although they mentioned by Garcia could be no other than the one entitled
are not entitled thereto, must give them to one who “Extra-Judicial Partition and Deed of Sale,’’ dated Dec. 3,
is an heir and lawfully entitled to receive the same. 1954. Garcia, et al. fi led the case for legal redemption with
the trial court on May 7, 1955. Calaliman claims that the 30-
day period prescribed in Article 1088 of the new Civil Code for
Effect of Inclusion of Intruder in Partition
Garcia, et al. to exercise the right to legal redemption had
We may consider the problem presented by the above already elapsed and that the requirement of Article 188 that
article under any one of three aspects: notice must be in writing is deemed satisfied because written
notice would be superfluous, the purpose of the law having
First: One heir shares the inheritance with other heirs been fully served when Garcia went to the office of the
who were mistakenly believed to be so during the Register of Deeds and saw for himself the contents of the
partition. In this case, Art. 1105 applies. The partition is deeds of sale. The trial court rendered judgment ordering
totally void. Hence, the declaration of nullity shall only Calaliman to resell the property to the plaintiffs. The CA
reversed the trial court and ordered the plaintiffs’ case
result in the delivery of everything that had been
dismissed.
adjudicated to the real heir since a new partition is
impossible considering that there is only one heir. ISSUE: Did the plaintiffs take all the necessary steps to
effectuate their right of legal redemption within the period fixed
Second: There are several heirs, but a third person, by Art. 1088 of the Civil Code.
without any right, had participated in the partition in the
belief that he was one of the heirs of the deceased. It HELD: The SC reversed the decision of the CA reinstating that
is clear that, although there was consent in the of the trial court and held that Garcia, et al. have not lost their
right to redeem, for in the absence of a written notification of
transmission of the share to the intruder, said
the sale by the vendors, the 30-day period has not even begun
transmission is void. Hence, Art. 1105 is also to run. Registration of the deed of sale with the Register of
applicable. Deeds is not sufficient notice, specially where the property
involved is unregistered land. The registration of the deed of
Third: Through error or mistake, a third person without sale as sufficient notice of the sale under the provisions of
any right is allotted the share that would have been Section 51 of Act No. 496 applies only to registered lands and
given to a real heir. In this case, both Arts. 1104 and has no application whatsoever to a case where the property
1105 shall apply. Under Art. 1104, the partition shall not involved is unregistered land. Both the letter and spirit of the
Civil Code argue against any attempt to widen the scope of
be rescinded, unless it be proved that there was bad
the notice specified in Article 1088 by including therein any
faith or fraud on the part of the other persons other kind of notice, such as verbal or by registration. If the
interested; but the latter shall be proportionately intention of the law had been to include verbal notice or any
obliged to pay to the person omitted the share which other means of information as sufficient to give the effect of
belongs to him. Under Art. 1105, the partition shall be this notice, then there would have been no necessity or
void, but only with respect to the intruder. Hence, there reasons to specify in Article 1088 of the Civil Code that the
must be a declaration of nullity of the partition, but only said notice be made in writing for, under the old law, a verbal
with respect to the share adjudicated to the intruder. notice or information was sufficient. In the interpretation of
Article 1623 of the Civil Code, the SC stressed that the written
This share, including fruits, shall, in turn, be delivered
notice is indispensable, actual knowledge of the sale acquired
to the omitted heir as payment of his share, without in some other manner by the redemptioner, notwithstanding.
prejudice to any additional obligation incurred under He is still entitled to written notice, as exacted by the Code, to
Art. 1104. remove all uncertainty as to the sale, its terms and its validity,
and to quiet any doubt that the alienation is not definitive. The
ARTICLE 1088: WRITTEN NOTICE IS AN ESSENTIAL law not having provided for any alternative, the method of
REQUISITE notification remains exclusive, though the Code does not
Garcia v. Calaliman prescribe any particular form of written notice nor any
GR 26855, Apr. 17, 1989 distinctive method for written notification of redemption.
FACTS: On Feb. 11, 1946, Gelacio died intestate, leaving a
parcel of unregistered land. His nephews, nieces,
grandnephews inherited the property. On Dec. 3, 1954, one
group of heirs signed a document entitled, “Extrajudicial
Partition and Deed of Sale’’ of the property in question. The

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WILLS

✓ New Civil Code Codal

MARY EVIELYN N. MATEO

Heirs, Devisees or Legatees

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Art. 778. Succession may be: Intestate succession

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Art. 782. An heir is a person called to the succession

personal Transferees (“Causahabientes”) in

Legatees and Devisees = if they succeed by particular

from which by their very nature are

It is only these claims which must be liquidated in the

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✓ in order that a person can make a will, it is Test of a sound mind

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Art. 801. [Supervening of Incapacity or Capacity]

Art. 802. A married woman may make a will without the

Capacity of Wife to Make a Will

Thus, if a 17-year-old wife makes a will, same will be

This discussion is without prejudice to “contractual

Art. 803. A married woman may dispose by will of aft her

What Wife Can Dispose of in Her Will

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Object of Formalities of Wills

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(5) Attestation Clause Effect of defects or imperfections

Purposes of the attestation clause Exception: Doctrine of Liberal Interpretation; If the

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Requisites: ‘Acknowledgment’ Defined: This is the act of one

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Doctrine of Liberal Interpretation

Requisites for Art. 809 to apply:

NOTE: The law speaks not of defects of substance but

Effect of Substantial Compliance

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An instrument is testamentary in character where from

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The probate may be — (Jurado)

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NOTE: Of course, it should be observed that generally, The disqualification extends to —

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Art. 825. A codicil is a supplement or addition to a will, Formalities of Codicils

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