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Effect of Pardon COMPETENCY V. CREDIBILITY OF WITNESS

 If the pardon was given because of the man’s innocence, as COMPETENCY CREDIBILITY OF
when somebody else had been proved to be the really guilty WITNESS
person, he can now act as a witness to a will. This is because Pertains to pertains to
there is no mental dishonesty. qualification of a believability of the
witness testimony of a
 If the absolute pardon was an act of Executive grace of witness
clemency, it is submitted that the disqualification re- mains,
for even an absolute pardon does not remove civil
consequences. The would-be witness still has a taint of mental Art. 823. - ATTESTING WITNESS IS AT THE SAME TIME A
dishonesty. DEVISEE OR LEGATEE OR THEIR SPOUSE, PARENT OR
CHD
Cruz v. Villasor If a person attests the execution of a will, to whom or to whose
The notary public before whom the notarial will is ac- knowledged is spouse, or parent, or child, a devise or legacy is given by such will,
disqualified to be a witness to said will. It would be absurd for him such devise or legacy shall, so far only as concerns such person, or
(as witness) to be acknowledging something before himself (as spouse, or parent, or child of such person, or any one claiming under
notary public). such per- son or spouse, or parent, or child, be void, unless there are
three other competent witnesses to such will.

Essential elements of domicile: However, such person so attesting shall be admitted as a witness as
1. The fact of residing or physical presence in a fixed place if such devise or legacy had not been made or given.
2. Intention of remaining permanently or animus manendi
 Under ART 823, attesting witness cannot be a devise or legatee.
 This disqualification apply only if the will is executed in the They are incapacitated to inherit but capacitated to be a
Philippines witness.
 Not essential that the witness be a citizen of the Philippines, for The disqualification extends to:
domicile is what the law merely requires.  Witness
 Domicile is defined in Art. 6 of the new Civil Code as  His spouse
the place of habitual residence  Parent
 Child
Note:  Any one claiming the right oF said witness, spouse,
 Qualification in Art.820 and Art. 821 are exclusive, no other parent, or child.
qualifications are required from witness.
 Conviction under this article should be final EFFECT:
 The law presumes that every witness are trustworthy and  Will is still valid, only the part appertaining to them should be
reliable, unless the contrary is established. considered void.
 If attesting witness, spouse, parent or child is a
COMPULSORY HEIR, he is only entitled to the legitime, but
Art. 822. - SUBSEQUENT INCOMPETENCY OF THE not to the given free portion or an excess of his legitime.
WITNESS  This article also covers Voluntary heirs.
If the witnesses attesting the execution of a will are competent at
the time of attesting, their becoming subsequently incompetent GR: Void
shall not prevent the allowance of the will. EXCPTN: If there are MORE THAN THREE(3) WITNESSES, the
devise or legatee is valid.
 Subsequent incapacity is immaterial
 Capacity as a witness is different from capacity as a witness in
court. Art. 824.- MERE CHARGE ON ESTATE FOR PAYMENT OF
DEBT; CREDITOR AS COMPETENT WITNESS
 Page 2
A mere charge on the estate of the testator for the payment of be executed as in the case of a will.
debts due at the time of the testator’s death does not prevent his
creditors from being competent witnesses to his will.
TWO (2) TYPES OF CODICIL:
CALUYA v. DOMINGO 1. NOTARIAL CODICIL - follows the rules and forms required
A creditor is not disqualified to receive if the testator provides in the by law for notarial will
will that such portion shall be given to such creditor as payment for 2. HOLOGRAPHIC CODICIL - follows the rules required by
an obligation. law to holographic wills

Whether or not he is instituted to the will, the creditor is entitled NOTE:

to be paid for his credit.  Both types may be revoked by a notarial or holographic will.
 If codicil was executed with the formalities of will, the same
shall be void.

Subsection 5. — CODICILS AND INCORPORATION BY Art. 827. - RULE ON INCORPORATION BY

REFERENCE
Art. 825. - CODICIL
A codicil is a supplement or addition to a will, made after the
execution of a will and annexed to be taken as a part thereof, by
which any disposition made in the original will is explained, added
to, or altered.
REFERENCE******
If a will, executed as required by this Code, incorporates into itself
by reference any document or paper, such document or paper shall
not be considered a part of the will unless the following requisites
are present:
(ICI-S)
(1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;

Rule in Case of Conflict Between Will and Codicil (2) The will must clearly describe and identify the same, stating
 In case of conflict between a will and a codicil, it is understood among other things the number of pages thereof;
that the latter should prevail, it being the later expression of
the testator’s wishes.. (3) It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
CODICIL v. WILL
CODICIL NEW WILL (4) It must be signed by the testator and the witnesses on each
When a will is executed after the When a new will was and every page, except in case of voluminous books of account or
will is executed, the codicil is subsequently executed after the inventories.
taken as part thereof. original will, the new will exist
independently to the original will
and without reference thereof. INCORPORATION BY REFERENCE - it is the incorporation of an
Explains, add to, supplements, No regard to the previous will, it intrinsic or separate paper into a will by reference so as to become a
and alter the provisions in the does neither the same as codicil part thereof and probated as such.
original will does  IBR in notarial will do not need any attestation clause,
May revoke only a part of the Its execution will revoke the because the attestation clause of the will itself is
original will entire original will sufficient.

Being a part of the original will, Separate fro the original will,
then both are taken as one being the one revoking the other.
WHAT IS TO BE STATED IN THE WILL?
1. The fact that testator is referring to the document

Art. 826. - VALIDITY; EXECUTED AS A WILL 2. Clear description and identification of the document

In order that a codicil may be effective, it shall 3. Number of pages


REQUIREMENTS THAT CAN BE PROVED BY EXTRINSIC,
PAROL OR EVIDENCE ALIUNDE:
 That document is i existence at the time of the execution
of the will;
 otherwise, future papers will render the
incorporation void.
 Document is one being referred in the will
GENERAL RULE: Only NOTARIAL WILL shall have
incorporation clause
 Art. 827(4) speaks of “witnesses,” it is reasonable to
believe that as a rule, only notarial wills can have this
incorporation by reference.
EXCPTN: It is allowed in Holographic will if:
 The holographic will has at least three (3) qualified and
credible witnesses
 WHY? Because then, the subscribing witnesses in the
holographic will, although a surplusage, can now sign the
document incorporated
 EVEN IF NO WITNESS, IF THE DOCUMENT REFERED
TO IS ENTIRELY HANDWRITTEN, SIGNED, AND
DATED IN THE HANDWRITING OF THE TESTATOR
there can also be a proper incorporation by reference.
Subsection 6. — REVOCATION OF WILL
Art. 828. -REVOCATION; WAIVER OR RESTICTION
A will may be revoked by the testator at any time before his death.
Any waiver or restriction of this right is void.
REVOCATION - an act of the mind terminating the potential
capacity of a will to operate at the death of the testator manifested by
some outward and visible act or symbolic sign thereof.
GENERAL RULE: A will is ambulatory and revokable during the
lifetime of testator.
EXCPTN: When testator during his lifetime:
 loses his testamentary capacity or
 becomes of unsound mind
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TESTATE OF MALOTO v. CA
The physical act of burning does not automatically revoke a will
without clear intention, and rejecting the argument of res judicata
raised by the opposing heirs.
For a valid revocation to occur, the 'corpus' and 'animus' must
concur, one without the other will not produce a valid revocation.
The physical act of destruction of a will, like burning in this case,
does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the
testator.
Its is not imperative that the physical destruction be done by the
testator himself. It may be performed by another person but under the
express direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be the will
itself. In this case, while animus revocandi, or the intention to
revoke, may be conceded, for that is a state of mind, yet that requisite
alone would not suffice.
"Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to
revoke must be accompanied by the overt physical act of
burning, tearing, obliterating, or cancelling the will carried out
by the testator or by another person in his presence and under his
express direction.
Under Art. 830, the physical act of destruction, in this case the
burning of the will, does not constitute an effective revocation, unless
it is coupled with animus revocandi on the part of the testator.
Since animus is a state of mind, it has to be accompanied by an
overt physical act of burning, tearing, obliterating or cancelling
done by the testator himself or by another under his express
direction and presence.
CUEVAS v. CUEVAS
FACTS;
Antonina Cuevas executed a notarized conveyance entitled "Donacin
Mortis Causa," ceding to her nephew, private respondent Crispulo
Cuevas half of a parcel of unregistered land located in Nueva Ecija.
In the same instrument appears the acceptance of Crispulo Cuevas.
Later on, the donor executed another notarized instrument entitled
"Revocacion de Donacion Mortis Causa" purporting to set aside the
preceding conveyance; She also instituted an action for the recovery

of the subject property on the ff grounds:
The Donation mortis causa previously executed was lawfully
revoked;
Even assuming arguendo that said donation was inter vivos, it was
still invalid because:
Not properly accepted
Donor did not reserve sufficient property for her maintenance;
Donee was guilty of ingratitude for refusal to extend support to donor
(ART. 765, CC)
RTC: ruled in favour of the respondent; denied the petition.
CA: did not rule on the case, but rather forward it to the SC.
ISSUE:
Whether or not the donation embodies a donation inter vivos, or a
disposition of property mortis causa revocable freely by the
transferor at any time before death.
WON the will may still be revoked. – NO.
RULING:
DONATION INTER VIVOS with reservation of beneficial title
during the lifetime of the donor.
Neither the designation mortis causa, nor the provision that a
donation is "to take effect at the death of the donor", is a
controlling criterion in defining the true nature of donations.
The question to be decided is whether the donor intended to part with
the title to the property immediately upon the execution of the deed,
or only later, when she had died. If the first, the donation is operative
inter vivos; if the second, we would be confronted with a disposition
mortis causa, void from the beginning because the formalities of
testaments were not observed.
In this case, It is apparent from the entire context of the deed of
donation that the donor intended that she should retain the entire
beneficial ownership during her lifetime, but that the naked title
should irrevocably pass to the donee.
The decisive proof that the present donation is operative inter vivos
lies in the final phrase to the effect that the donor will not dispose or
take away ("hindi ko nga iya-alis" in the original) the land "because I
am reserving it to him upon my death."
By these words the donor expressly renounced the right to freely
dispose of the property in favor of another (a right essential to full
ownership) and manifested the irrevocability of the conveyance of
the naked title to the property in favor of the donee. Irrevocability is
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characteristic of donations inter vivos, because it is incompatible
with the idea of a disposition post mortem. (See ART. 828, CC)
Had the donor meant to retain full or absolute ownership she had no
need to specify possession, cultivation and harvesting, since all these
rights are embodied in full or absolute ownership; nor would she then
have excluded the right of free disposition from the "rights and
attributes of ownership" that she reserved for herself.
Art. 829. - RULES ON REVOCATION
A revocation done outside the Philippines, by a person who does
not have his domicile in this country, is valid when it is done
according to the law of the place where the will was made, or
according to the law of the place in which the testator had his
domicile at the time; and if the revocation takes place in this
country, when it is in accordance with the provisions of this Code.
RULES ON REVOCATION IDONE IN:
 PHILIPPINES
 Must comply with the Philippines Law, regardless of the
nationality and domicile
 OUTSIDE THE PHILIPPINES BY A NON-RESIDENT
 Law of the place where the will was made; or
 Law of the place of Domicile
 OUTSIDE OF THE PHILIPPINES BY A RESIDENT
FILIPINO OR FOREIGNER
 Law of the place of Revocation (ART. 17 - lex loci
celebrationis)
 Law of the Domicile of the testator
 NATIONAL LAW NEVER GOVERNS REVOCATION
 Not primarily applicable as regards the making of a will.
Art. 830. - THREE (3) WAYS OF REVOCATION (ISB)
No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills; or
(3) By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by some
Other person in his presence, and by his express direction.
If burned, torn, cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be

established, and the estate distributed in accordance therewith, if
its contents, and due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are established according to
the Rules of Court.
(1) REVOCATION BY IMPLICATION OF LAW
 takes place when certain acts or events take place after a
will has been made
Reason for allowance:
 There may be certain changes in the family or
domestic relations or in the status of his property,
such that the law presumes a change of mind on the
part of the testator.
Acts considered by law as an act of revocation: (PLS-LU)
1. ART. 854,NCC
a) one, some or all of the compulsory heirs have been
preterited or omitted, the institution of heir is void.
2. ART. 936, NCC
a) When a credit that has been given as legacy is
judicially demanded by the testator
3. ART. 957, NCC
a) When after the testator made a will, he sells, or
donate the legacy or devise.
4. ART. 106, FC
a) Provisions in a will in favor of a spouse who has
given cause for legal separation shall be revoked by
operation of law the moment a decree of legal
separation is granted.
5. ACT 1032, NCC
a) When an heir, legatee, or devise commits an act of
unworthiness under Art. 1032
Suppose the testator never intended to change his mind ex. A
disposed in his will a car in favor of B, but he sold it to C, and
decided instead to give the money to B?
 In this case, as provided in Art. 830, generally there is a
revocation by implication of law, since A sold the car
which is an object of the will in favor of the legatee, B.
 What the testator should do in a case like this is to
manifest his unchanged mind by executing a new will
or codicil.
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 Where the revocation of a will is presumed by law
from a change in the testator’s circumstances,
evidence is generally not admissible to rebut the
presumption, at least not evidence of subsequent
unexecuted intentions of the testator.
(2) REVOCATION BY SUBSEQUENT DOCUMENT
a) May be express or implied
i. Implied revocation - complete inconsistency
between the two wills
b) May be codicil or new will
i. Revoking will must be essentially a Valid will,
otherwise no revocation
c) Revocation must be a definite one
i. A declaration that the first will will be revoked
sometime in the future is not enough.
ii. A second will referred to by the testator as his “last
will” revokes completely the first will, particularly
if the provi- sion of the two,
d) DOCTRINE OF CONDITIONAL REVOCATION***
i. also know as “Dependent Relative Revocation”
ii. revocation may be conditional i.e. the revocation
takes place only if the condition is fulfilled
PROBLEM*****
Testator made will No. (1). After one week, he want- ed to
revoke same, so he executed will No. (2), expressly revoking
will No. (1). In the belief that he had already accomplished
what he wanted, he then tore into two pieces will No. (1). On
his death, it was discovered that will No. (2) had not been
validly executed.
Can we consider will No. (1) as having been revoked, or
should it still be given effect?
ANS: NO REVOCATION either by subsequent will, for same was
invalid) or an overt act, since the act of destruction or tearing the first
will was prompted by the false belief that the second will had been
validly executed.
Art. 833 provides that a revocation of a will based on a false cause or
illegal cause is null and void.
In another perspective, the doctrine of dependent relative
revocation — the revocation by destruction or overt act was good
only if this condition is fulfilled, namely, that the revoking will was
valid.

In this case, the condition was not fulfilled; therefore, the revocation
by overt act did not really materialize.
(3) REVOCATION BY AN OVERT ACT
REQUISITES: (SCA-D)*****
a) Must be an overt act specified by law
b) Completion at least of the substantial phase of the overt
act
c) Animus revocandi or intent to revoke
d) Testator at the time of revoking must be capacitated to
make a will
 He must also be of sound mind, otherwise
there is no real revocation
e) Revocation must be done by the testator himself, or by
some other person in his presence and by his express
direction.
RULES ON OVERT ACTS:****
BURNING - there must be an actual burning, and it is not necessary
that the will be burned entirely, again, completion of substantial
phase is sufficient, thus, it is sufficient even if a small part of the
instrument itself be burned
 No revocation if the will is burned accidentally for lack
of intention to revoke
 A will thrown into the fire with intent to revoke, without
scorching the writing, there is already revocation, even if
unknown to the testator, somebody was able to snatch it
from the fire and thus saved it
 If the envelope containing a will is burned, but the will
itself is untouched, there is NO revocation even if there
be intent to revoke
 There was no overt act of burning the will, as
distinguished from the envelop
PROBLEMS
A wanted to revoke his will, so he threw it into a stove so that it
would be burned later on when a fire would be lighted in the stove.
However, the will was later removed by another person from the
stove BEFORE the stove was lighted. Is there a revocation? ****
ANS: No revocation for while there was intent to revoke,
there never was the overt act of burning.
 However, the person who prevented the revocation, if he
is a heir or a legatee or devisee,
 will NOT INHERIT, not because of revocation by means
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of overt act, since there was not overt act,
 but because of REVOCATION BY IMPLICATION OF
LAW,
 because said person is considered INCAPACITATED TO
INHERIT BY REASON OF UNWORTHINESS under
ART. 1032.
TESTATE OF MALOTO v. CA
It is clear that the physical act of destruction of a will, like burning in
this case, does not per se constitute an effective revocation, unless
the destruction is coupled with animus revocandi on the part of the
testator.
It is not imperative that the physical destruction be done by the
testator himself. It may be performed by another person but under
the express direction and in the presence of the testator. Of course, it
goes without saying that the document destroyed must be the will
itself
TEARING - Includes “cutting” but not crumpling
 Slight tear is sufficient
 But ofc the greater the degree of tearing the
greater is the evidence of animo revocandi
 Tearing off even the signature alone constitutes
revocation provided the other requisites are present.
 Signature is the very heart of the will
Perkes v. Perkes
In a fit of anger, a testator tore his will twice and was continuing to
so tear when some- body held his arms and persuaded him to refrain
from tearing the will. He was prevailed upon. He then placed the torn
pieces in his pocket and said, “Nothing significant has after all been
torn.’’
Later, the testator died, and the torn will was found. Was there a
revocation here?
HELD: There was NO REVOCATION for the act of tearing was
subjectively not yet complete, inasmuch as he had intended to tear
up the will some more. (LACKING REQUISITE: Completion of
substantial phase of overt act)
OBLITERATING OR CANCELLING
 Either of two (2) revokes the will, totally or partially
 Obliteration - renders the word illegible; when

erased thru eraser or when it was blot out
 Cancellation - the drawing of line across the text;
placing a mark on the word will not suffice
Probate of Lost or Destroyed Wills*****
1. NOTARIAL WILL - If it has been lost or destroyed without
intent to revoke, contents may be proved by:
 Oral or parol evidence
 Carbon copies or Duplicate Original
 carbon copy signed by all concerned is just as
good as the original
 may be introduced in evidence without
accounting for the non-production of the other
copies
WHAT SHOULD BE PROVEN DURING PROBATE OF LOST
OR DESTROYED NOTARIAL WILL?****
(FIC)
1. Established in accordance with the
formalities required by law under ART. 804-
ART. 809
2. Prove that the will is inexistent at the time of
the death of testator OR that it was
fraudulently destroyed without the knowledge
of testator OR it was accidentally lost or
destroyed without intet to revoke
3. Prove the contents clearly and distinctly by
copies or recital of contents by some
document or testimony of the witnesses
2. HOLOGRAPHIC WILL - if lost or destroyed without intent
to revoke, cannot be probated.
Art. 831. - SUBSEQUENT WILLS (IMPLIED REVOCATION)
*****
Subsequent wills which do not revoke the previous ones in an
express manner, annul only such dispositions in the prior wills as
are inconsistent with or contrary to those contained in the later wills.
IMPLIED REVOCATION - when a subsequent will or codicil was
executed but without a Revocation clause, but its contents are
inconsistent with or contrary to the original will
 May be total or partial;
PARTIAL REVOCATION - if there is inconsistency only in
certain provisions
Page 7
 This kind of revocation is not favored by law, hence, efforts to
reconcile must be made.
Art. 832. - REVOCATION MADE IN SUBSEQUENT WILL
(DOCTRINE OF ABSOLUTE REVOCATION)***
A revocation made in a subsequent will shall take effect, even if the
new will should become inoperative by reason of the incapacity of
the heirs, devisees or legatees designated therein, or by their
renunciation.
INVALID WILL v. INEFFECTIVE WILL
INVALID REVOKING INEFFECTIVE
WILL REVOKING WILL
Cannot revoke can revoke
Art. 833. - FALSE OR ILLEGAL CAUSE (DOCTRINE OF
RELATIVE REVOCATION)
A revocation of a will based on a false cause or an illegal cause is
null and void.
 Revocation was made based on false belief or mistake
 If revocation was made in a subsequent will, false belief
or illegal cause must appear in the face of the will or
codicil itself.
Art. 834. - RECOGNITION OF AN ILLEGITIMATE CHILD
The recognition of an illegitimate child does not lose its legal effect,
even though the will wherein it was made should be revoked.
 REASON: While a will is essentially revocable,
recognition is irrevocable, unless there be vitiated
consent.
 Also, recognitioN is:
 Not a testamentary disposition; and
 Does not wait for the testator’s death to take
effect.
Subsection 7. — REPUBLICATION AND REVIVAL OF WIL

Art. 835. - EXPRESS REPUBLICATION/ REPUBLICATION
BY RE-EXECUTION
The testator cannot republish, without reproducing in a subsequent
will, the dispositions contained in a previous one which is void as to
its form.
Art. 836. - IMPLIED REPUBLICATION
The execution of a codicil referring to a previous will has the effect
of republishing the will as modified by the codicil.
Republication - is the re-establishment by the testator of a previously
revoked will or one invalid for want of proper execution as to form
or for other reasons so as to give validity to said will
 May be made by:
1. Re-execution of original will - original provisions
are reproduced or copied in a new or subsequent
will
 applies when will is VOID AS TO ITS
FORM
2. Execution of a codicil - mere reference to the
revoked will is enough: there is no necessity of
reproducing all the previous dispositions; also
known as implied republication under Art. 836;
 may apply when a will is VALID AS
TO FORM BUT ALREADY
REVOKED
EFFECT OF REPUBLICATION UNDER ART. 836 (RRG)
a. codicil revives the previously revoked will
b. Old will is republished as the date of codicil
c. A will republished by codicil shall be governed by a
statute enacted subsequent to the execution of the will,
but which was operative when the codicil was executed.
At the time a notarial will was executed with two witnesses, the law
required three. Suppose later on, the law changed the required
number to two, and suppose this time a codicil referring to the will
is made with two (as required) witnesses, is the old will
republished?
 Yes.
 While it is true that generally a void will as to its form
cannot be republished merely by reference in a later
valid codicil, and while it is true that according to Art.
795, the validity of a will as to its form depends upon
the observance of the law in force at the time it is made,
still it is submitted that in this particular case, there was a
valid republication because of the fact that here, the
Page 8
defect has been cured.
Can a will, invalid because of fraud or force or undue influence or
because the testator was under 18 or was insane, be republished by
mere reference in a codicil?
 YES.
 because this is not a case when the will is void as to its
FORM.
 Form — in this Article, it is believed, refers to such
things as those covered by Art. 805 but not to vitiated
consent or to lack of testamentary capacity, although of
course these are included in the phrase “extrinsic
validity,”
Art. 837. - REVIVAL; PRINCIPLE OF INSTANTER****
If after making a will, the testator makes a second will expressly
revoking the first, the revocation of the second will does not revive
the first will, which can be revived only by another will or codicil.
 REASON: Revocation takes effect immediately. It does not
wait for the death of the testator to become effective because
revocation does not take the form of testamentary disposition .
Stated otherwise, while a will is a disposition mortis causa, a
revocation takes effect, inter vivos.
“Revival”- is defined as:
 the restoration or re-establishment of revoked will or revoked
provisions thereof,
 to effectiveness, by virtue of legal provision
EX.
 ART. 836 - preterited or omitted compulsory heir in
the will, predeceased the testator,the institution is
revived, without prejudice to the right of
representation
 2nd will impliedly revoked the 1st will, and the
former was also subsequently revoked, 1st will may
be revived by a codicil - implication in ART. 837
sine it used the word “”expressly”
RULE:
1. NO REVIVAL - if the first will is expressly revoked by
the 2nd will
2. THERE IS AUTOMATIC REVIVAL - if the first will is
impliedly revoked by a second will and the later is
subsequently revoked.
REASON:

 the fact that an “implied revocation” is
ambulatory, the inconsistency being truly and
actually apparent only mortis causa, when the
properties are distributed.
 See ART. 831 for Implied revocation
REPUBLICATION v REVIVAL
REPUBLICATION REVIVAL
It is the re-establishment of
previously revoked will or one
It is the re-establishment to
invalid for want of proper
validity by operation of law of a
execution as to form or for other
previously revoked will.
reasons so as to give validity to
said will
It involves the act of law,
It involves the act of the testator.
operation of law.
Page 9
provision in so far as they are in accordance with the law.
KEY POINTS:
 Probate is MANDATORY
 Extrajudicial Settlement is NOT allowed when there is a
will
 A probate proceeding is a special proceeding (Rule 76-90
of the Rules of Court).
 It is a proceeding in rem.
 In a probate proceeding the inquiry as a General Rule is
limited only to EXTRINSIC VALIDITY of the will
 no judicial approval can be given to an extrajudicial
partition based on a will unless the will is first probated.
Neither may an unprobated will be presented as evidence
of an act of partition among the co-heirs.
 provisions in the will must not be disregarded unless said

There is a will previously provisions are contrary to law.

revoked or a will valid as to form

A will previously revoked.
or a will invalid for any other GENERAL RULE: During probate proper, the probate court HAS

cause NO JURISDICTION to entertain other issues except on issues on

whether or not the will was duly probated in compliance with the

NOTE: Aside from republication and revival, there is no other way formalities required by law and whether or not the testator has

of restoring effectiveness. testamentary capacity at the time he executed the will

EXCEPTION:

Subsection 8. — ALLOWANCE AND DISALLOWANCE OF 1. when the parties voluntarily submit this matter to the court; or

WILLS (PROBATE) 2. Summary on issues that may be passed upon by the probate
court (intrinsic validity):

Art. 838. - PROBATE & ALLOWANCE 1. Ownership

No will shall pass either real or personal property unless it is proved a. when the testator has disposed of property that is not his; or

and allowed in accordance with the Rules of Court. b. Whether or not a certain property is included in the estate.
2. Filiation

The testator himself may, during his lifetime, petition the court a. Whether or not the oppositor has a personality to intervene; or

having jurisdiction for the allowance of his will. In such case, the b. whether or not the will has been revoked

pertinent provisions of the Rules of Court for the allowance of wills 3. Whether or not there was preterition

after the testator’s death shall govern.

The Supreme Court shall formulate such additional Rules of Court as NOTE: But decisions of the court pertaining to these questions are

may be necessary for the allowance of wills on petition of the only provisional. (Lim Vs. CA)

testator.

Subject to the right of appeal, the allowance of the will, either EXTRINSIC VALIDITY means:

during the lifetime of the testator or after his death, shall be 1. Whether or not the testator was of sound mind when he

conclusive as to its due execution. executed the will

PROBATE - is the act or process of proving, before a competent 2. Whether or not he is 18 years or above

court the due execution of an instrument purported to be the last will 3. Whether or not the will complied with the formalities under

and testament of a deceased for its allowance or approval by the said Articles 804-809 with respect to notarial will

court, that is, for its official recognition and the carrying out of its 4. Whether or not the will is entirely written, dated, and signed in
the handwriting of the testator with respect to a holographic
 Page 10
will PROBATE OF PROBATE OF NOTARIAL
HOLOGRAPHIC WILL WILL
KINDS OF PROBATE: enough that at least 1 witness
1 subscribing witness should
I．ANTE-Mortem explicitly declares that the will
testify as to the execution of the
II．POST-Mortem is in the handwriting and
will.
a. Probate proper - concerned only with extrinsic validity i.e. signature of the testator.
execution of the will & testamentary capacity of the testator; When it is contested, ALL of
proceeding in rem the subscribing witnesses plus
b. Determination of the legality of the testamentary provision the notary public must testify.
and distribution of estate - intrinsic validity; proceeding for When the will is contested,
distribution of the properties is NOT in rem, and cannot affect there must be at least 3 of If all of the subscribing
those who were not PERSONALLY served with summon. witnesses. witnesses and the notary public
Intrinsic validity: are: dead, insane; or they are all
i. exclusion of the widow from the inheritance. (Sa- In the absence of such absent in the Philippines or
hagun v. Gorostiza, 7 Phil. 347). witnesses, expert testimony testify against the due execution
ii. disinheritance of a daughter. (Limjuco v. Canara, 11 may be resorted to or even if of the will; or they do not
Phil. 394). there is no contest, still expert remember having attested to the
iii. impairment of the legitime. (In Re Estate of testimony may be resorted to. execution of the will; or they
Johnson, 39 Phil. 156). are of doubtful credibility, then,
iv. declaring a certain woman to be the true wife of the other witnesses may be
testator. (Alkuino Lim Pang v. Uy Pian Ng Shun, resorted to.
52 Phil. 571). PROBATE OF LOST/ PROBATE OF LOST/
v. partitioning of conjugal properties. (Reynoso v. To- DESTROYED HW DESTROYED NW
lentino, O.G. Supp. Aug. 2, 1951, p. 5). there must be a photocopy or
vi. right of a widow to the inheritance. (Barredo v. carbon copy of the holographic
In notarial wills, even if there is
Vencer, 56 Phil 806). will.
no copy, the notarial will may
vii. titles to property, and annulment of alleged fraudu-
be probated because the
lent sales. If there is no copy of the
contents of a notarial will may
holographic will,
be proved by the testimonies of
even if the reason why the
at least 2 witnesses who can
Alsua-Betts Vs. CA holographic will was lost or
clearly and distinctly prove the
The rule on ESTOPPEL and the STATUTE OF LIMITATION do destroyed was due to the act of
contents of the notarial will.
not apply in probate. another person
without intent to revoke on the
NB: As long as there is no
REASONS WHY PROBATE IS ESSENTIAL: part of the testator, still no
animus revocandi on the part of
1. Required by law probate of the holographic will
the testator.
2. Proceeding in rem - requires publication; cannot be may be allowed because there is
dispensed by any other proceeding w/ offending public no copy.
policy
3. To not put into nugatory the right of a person to dispose
his property Art. 839. - GROUNDS FOR DISALLOWANCE OF WILL*****
4. Prevent devisee or legatees from being cheated by The will shall be disallowed in any of the following cases:
possible collusion of heirs for their exclusion (1) If the formalities required by law have not been complied with;
(Formalities)
PROBATE OF PROBATE OF NOTARIAL (2) If the testator was insane, or otherwise mentally incapable of
HOLOGRAPHIC WILL WILL making a will, at the time of its execution; (Unsound mind)
(3) If it was executed through force or under duress, or the
If there is no contest, it is when there is no contest, at least
 Page 11
influence of fear, or threats; (Duress/Coercion)
(4) If it was procured by undue and improper pressure and REQUISITES FOR VALID INSTITUTION:
influence, on the part of the beneficiary or of some other person; a) Extrinsically valid
(Undue influence) b) Intrinsically valid
(5) If the signature of the testator was procured by fraud; (Fraud) c) Institution must be Effective
(6) If the testator acted by mistake or did not intend that the d) Instituted heir must be Personally instituted by the
instrument he signed should be his will at the time of affixing his testator
signature thereto. (MISTAKE/UNINTENTIONAL) e) Instituted heir must be Clearly identified in the will

 Mere inequality, no matter how great, in distributing the Art. 841. - WILL REMAINS VALID
estate is not evidence of undue influence. A will shall be valid even though it should not contain an
institution of an heir, or such institution should not comprise the
entire estate, and even though the person so instituted should not
Formalities accept the inheritance or should be incapacitated to succeed.
 Notarial wills:
1. Formalities under Art. 804-809 In such cases the testamentary dispositions made in accordance with
 Holographic Wills law shall be complied with and the remainder of the estate shall pass
1. Entirely written, signed and dated in the handwriting of the to the legal heir.
testator
2. Testamentary capacity EX: T died, giving nothing in his will to his brother B, and
3. Holographic wills must be allowed by law at the time of its instituting his friend F. If F refuses to accept, or is dis- qualified to
execution inherit, B as sole legal heir gets the estate without prejudice to the
remaining effective provisions of the will.
Undue influence 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 don Art. 842. - PRINCIPLE OF FREEDOM OF DISPOSITION
One who has no compulsory heirs may dispose by will of all his
Fraud is the use of insidious machinations to convince a person to do estate or any part of it in favor of any person having capacity to
what ordinarily he would not have done. For fraud to vitiate a will, succeed.
there must be intent to defraud. This intent, and the nature of the
fraud, must be proved of course. One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
REVOCATION DISALLOWANCE legitime of said heirs.
Voluntary act of testator Given by order of the court
May be with or without cause Only for legal cause LIMITATIONS TO FREEDOM OF DISPOSITION:

May be total or partial Always total 1. LIABILITIES OF ESTATE TO TESTATOR’S

Takes place during lifetime of Usually invoked after testator’s OBLIGATION - takes precedence over legitime

testator death 2. LEGITIME

ART. 842 is not applicable if disposition is not by will but by

simulated sale. (Heirs of Ureta v. Ureta) ****

Section 2 INSTITUTION OF HEIR

Art. 840. - INSTITUTION OF HEIR Art. 843. - DESIGNATION BY NAME & SURNAME;

Institution of heir is an act by virtue of which a testator designates in OMITTED NAME

his will the person or persons who are to succeed him in his The testator shall designate the heir by his name and surname, and

property and transmissible rights and obligations. when there are two persons having the same names, he shall
indicate some circumstance by which the instituted heir may be

known.
Even though the testator may have omitted the name of the heir,
should he designate him in such manner that there can be no doubt
as to who has been instituted, the institution shall be valid.
 Must be read together with ART 789
EFFECT OF DOUBT: *****
 In case of doubt in designation, no one will inherit
because only one was intended by the testator and to
allow the person who fitted the description will frustrate
testator’s intention.
 Moreover, it is absorb to give one-half to a person whom
the testator intended to give nothing.
Art. 844. - ERROR IN DESIGNATION OF NAME
An error in the name, surname, or circumstances of the heir shall not
vitiate the institution when it is possible, in any other manner, to
know with certainty the person instituted.
If among persons having the same names and surnames, there is a
similarity of circumstances in such a way that, even with the use of
other proof, the person instituted cannot be identified, none of them
shall be an heir.
RULES IF THERE IS AN ERROR IN NAME, SURNAME OF
CIRCUMSTANCES OF HEIR
1. ERRORS IN THE NAME, SURNAME OR CIRCUMSTANCES
WOULD NOT MATTER AS LONG AS ULTIMATELY THE
COURT CAN IDENTIFY WHO ARE REALLY THE HEIRS
INTENDED BY THE TESTATOR.
2. THE ERROR OR MISDESCRIPTION MAY BE CORRECTED
BY EXTRINSIC EVIDENCE BECAUSE OF THE PHRASE "IN
ANY OTHER MANNER", EXCEPT ORAL DECLARATION
MADE BY THE TESTATOR. (ART. 789)
Del Rosario Vs. Del Rosario
Thus, where legatees are pointed out by name in the will the fact that
they are a third person does not make the legacy conditioned upon
proof of such a relationship. The relationship is merely descriptive.
Evidence is admissible to ascertain the identity of the legatees.
Art. 845. - DISPOSITION IN FAVOR OF UNKNOWN
Page 12
PERSON; CLASS OR GROUP OF PERSONS
Every disposition in favor of an unknown person shall be void,
unless by some event or circumstance his identity becomes certain.
However, a disposition in favor of a definite class or group of
persons shall be valid.
Art. 846. - PRINCIPLE OF EQUALITY***
Heirs instituted without designation of shares shall inherit in equal
parts.
 EXCPTN: ART. 846 cannot be applied when there is a
compulsory;
 the legitime must first be removed and what
remains will be divided equal
Art. 847. - PRINCIPLE OF INDIVIDUALITY;
COLLECTIVELY DESIGNATED*****
When the testator institutes some heirs individually and others
collectively as when he says, “I designate as my heirs A and B, and
the children of C,’’ those collectively designated shall be considered
as individually instituted, unless it clearly appears that the intention
of the testator was otherwise.
NOBLE v. USON
As long as the intention to have the estate collectively distributed
does not appear, the presumption is individual institution.
Art. 848. - INSTITUTION OF BROTHERS & SISTERS
If the testator should institute his brothers and sisters, and he has
some of full blood and others of half blood, the inheritance shall be
distributed equally, unless a different intention appears.

 ART. 848 applies only to TESTAMENTARY
SUCCESSION
 “Others of half blood” also covers sister or brother-in-
laws, but in case of intestacy, they will not get anything
Art. 849. - PRINCIPLE OF SIMULTANEITY****
When the testator calls to the succession a person and his children,
they are all deemed to have been instituted simultaneously and not
successively.
 This is merely a rebuttable presumption, hence, if a
contrary intention is present then it must prevail
 Testator is not proscribed to provide for a successive
institution
Art. 850. - STATEMENT OF FALSE CAUSE****
The statement of a false cause for the institution of an heir shall be
considered as not written, unless it appears from the will that the
testator would not have made such institution if he had known the
falsity of such cause.
 What is disregarded is the false cause, not the
institution
Austria v. Reyes
Before the institution of heirs may be annulled under article 850 of
the Civil Code, the following requisites must concur:
I．cause for the institution of heirs must be stated in the will;
II．the cause must be shown to be false; and
III．it must appear from the face of the will that the testator
would not have made such institution if he had known the
falsity of the cause.
If children who are invalidly adopted are instituted as heirs, the
Page 13
institution should remain valid. As much as possible, intestacy
ought to be avoided, and the testator’s wishes should be given effect.
The allegation that the institution should be void because it was
based on a false cause, the testator thinking that they had to be
instituted because of the adoption, is of no merit because there is
nothing in the will to indicate that had the testator known of the
invalidity of the adoption, the institution of the children would not
have been made.
Art. 851. - ALIQUOT PART
If the testator has instituted only one heir, and the institution is
limited to an aliquot part of the inheritance, legal succession takes
place with respect to the remainder of the estate.
The same rule applies, if the testator has instituted several heirs each
being limited to an aliquot part, and all the parts do not cover the
whole inheritance.
 Art. 851 applies when there is a remainder or balance
and there is NO INTENT to give all to the instituted heir
or heirs.
 If there is such INTENT, the remainder should be
divided proportionately, applying Art. 852.
Art. 852. - INSTITUTED HEIRS AS SOLE HEIRS TO WHOLE
ESTATE
If it was the intention of the testator that the instituted heirs should
become sole heirs to the whole estate, or the whole free portion, as
the case may be, and each of them has been instituted to an aliquot
part of the inheritance and their aliquot parts together do not cover
the whole inheritance, or the whole free portion, each part shall be
increased proportionately.

Art. 853. - IN EXCESS OF WHOLE ESTATE; REDUCED
PROPORTIONALLY
If each of the instituted heirs has been given an aliquot part of the
inheritance, and the parts together exceed the whole inheritance, or
the whole free portion, as the case may be, each part shall be reduced
proportionally.
Art. 854. - PRETERITION****
The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of
the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.
 Cannot apply without a will
PRETERITION or pretermission - is the omission, whether
intentional or not, of a compulsory heir in the inheritance of a
person.
 It consist of the silence of the testator with regard to
a compulsory heir either by not mentioning him or
by not giving him anything in the hereditary
properties but not expressly disinheriting him.
REQUISITES: (TCD)
1. TOTAL omission in the inheritance
2. omission must be of a COMPULSORY heir
3. compulsory heir omitted must be in the DIRECT line
4. Compulsory heir must not PREDECEASED testator
TOTAL OMISSION
 meaning the compulsory heir did not receive any legacy,
devise, or donation/ advance on his legitime. (Morales v.
Page 14
Olondiz)
 If a compulsory heir is not given anything in the will,
but he has already received a donation from the testator,
there is NO preterition because after all, a donation to a
compulsory heir is considered an advance of the
inheritance or legitime. (Art. 1073).
 Upon the death of testator, the donation given to
CH by the testator during his lifetime, shall be
added to back to the value of the estate through
collation.
COMPULSORY HEIR IN DIRECT LINE
 Legitimate or illegitimate child
 Parents in absence of descendants
 By fiction of law, adopted child are compulsory heir in
direct line
NOTE: A surviving spouse although a compulsory heir but not
in the direct line, thus, an omission of the wife in the will do
not give rise to preterition.
PREDECEASED
GR: No preterition in case the omitted heir predeceased the
testator
EXCPTN: If the omitted CH has children or descendants,
there is representation wherein they are exalted to the position
of the one they are representing i.e. omitted CH. Hence, there
is preterition
EFFECT OF PRETERITION: (ALR)****
1. The institution of heirs is annulled, automatically, without
need of court action, hence, the proper term should have
been “void”
2. Although the institution of heirs is indeed annulled, the
legacies and devises shall remain valid insofar as they are
not inofficious.
3. Legacies or devisees are not voided, but merely reducible
if the legitime has been impaired.
Acain v. IAC, et al.
FACTS: Nemesio Acain executed a will whereby he gave all his
shares in the conjugal property to his brother Segundo. In case Segundo
predeceases Nemesio, all his shares were to be given to Segundo’s children.
Segundo predeceased Nemesio. Thus, Constantino and his brothers and
sisters, the children of Segundo, filed a petition for probate claiming the

property as Nemesio’s heirs.
Duringthe petition for probate, Virginia A. Fernandez, a legally adopted
daughter of Nemesio and the latter’s widow, Rosa Diongson Vda. de Acain,
moved to dismiss on the grounds: (1) Constantino has no legal capacity to
institute these proceedings; (2) he is merely a universal heir; and (3) the
widow and adopted daughter have been preterited.
ISSUE: WON there is preterition
RULING: YES, not because of the surviving spouse but because the
adopted child is omitted.
Adoption gives the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a
legal heir of the adopter.
The universal institution of petitioner together with his brothers and sisters to
the entire inheritance of the testator results in totally abrogating the will
because the nullification of such institution of universal heirs-without any
other testamentary disposition in the will amounts to a declaration that
nothing at all was written.
The effect of annulling the institution of heirs will be the opening of a
total intestacy except that proper legacies and devises must be respected.
In order that a person may be allowed to intervene in a probate
proceeding he must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the
estate and an interested party is one who would be benefited by the estate
such as an heir or one who has a claim against the estate like a creditor.
Page 15
Art. 855. - EFFECT OF PARTIAL OMISSION OF CH
The share of a child or descendant omitted in a will must first be
taken from the part of the estate not disposed of by the will, if any;
if that is not sufficient, so much as may be necessary must be taken
proportionally from the shares of the other compulsory heirs.
 This article speaks of remedy in case of partial omission
of the compulsory heir or he received less that what he
is entitled from his legitime. In such case, the
differential shall be taken first from the free portion, if
any, if none, legacy or devise or CH’s share shall be
reduced to complete the legitime.
REMEDY: The legitime must be completed first by recovry from:
1. Undisposed portion of the estate
2. Legacy shall be reduced (ART.854 last par)
3. Compulsory heirs or Voluntary heir
REASON: It shall be unfair to the CHs if the legatee, who may be a
total stranger to testator, to be placed in more advantageous position.
Thus, he must contribute to the impaired legitime.
EXAMPLE FOR NO.1:

Nuguid v. Nuguid
If a testator institutes in his holographic will a sister or brother as the only
heir, and fails to institute his parents, who are still alive, this is a clear case of EXAMPLE FOR NO.2:
PRETERITION, and the instituted heir should get NOTHING because said
institution is void, on account of the preterition. The total omission of the
parents’ names is not to be regarded as a case of ineffective
disinheritance, but a case of preterition. The total omission of the parents
names is not to be regarded as a case of ineffective disinheritance, but a case
of preterition.

Neri v. Akutin
It is clear that F was not being made a legatee merely, he was indeed instituted
as heir. It would be error to consider all bequests in favor of strangers as
legacies or devises, otherwise there would have been no need of them
distinction, in effect, made in Art. 854.

EXAMPLE FOR NO.3:
Art. 856 — NO RIGHT OF REPRESENTATION IN
PREDECEASED OF VOLUNTARY HEIR & COMPULSORY
HEIR*****
A voluntary heir who dies before the testator transmits nothing to
his heirs.
A compulsory heir who dies before the testator, a person
incapacitated to succeed, and one who renounces the inheritance,
shall transmit no right to his own heirs except in cases expressly
provided for in this Code.
 this article applies by analogy to DISINHERITANCE:
A compulsory heir who is disinherited shall transmit no
right to his own heirs except when there is a Right of
Representation.
RULES:
VOLUNTARY HEIR - here covers also legacies or devises.
 Hence, if a legacy or devise is given, it transmits nothing
to the heir of the voluntary heir if the voluntary heir dies
before the testator
COMPULSORY HEIR
GR: If a compulsory heir predeceases the testator, is incapacitated or
renounces or repudiates the inheritance, he transmits nothing to his
own heirs.
EXCPTN: Right of Representation
 When a compulsory heir who is capacitated and did not
renounce his his inheritance, predeceased the testator, his
inheritance will be received by his heir and representative.
 He does not transmit, for to transmit is to imply that he is
entitled to it but gives it to his representative. Since he
predeceased, he never was entitled, and therefore what he could
have received is instead given, not by him but by the law to the
representative.
Page 16
Section 3
SUBSTITUTION OF HEIRS
Art. 857. - SUBSTITUTION
Substitution is the appointment of another heir so that he may enter
into the inheritance in default of the heir originally instituted.
 Applicable only to testamentary succession
 substitution is nothing but a secondary institution
 There may also be substitution of legatees and devisees.
TWO (2) CONCEPT OF SUBSTITUTION:
Under substitutions, in general, the testator may either:
1. (ART. 859);
 provide for the designation of another heir to whom
the property shall pass in case the original heir
should die before him/her, renounce the inheritance
or be incapacitated to inherit, as in a simple
substitution.
 SIMPLE SUBSTITUTION - second heir
takes the inheritance in default of the first heir
by reason of incapacity, predecease, or
renunciation.
2. (Art. 863)
 leave his/her property to one person with the
express charge that it be transmitted subsequently
to another or others, as in a fideicommissary
substitution.
 FIDEICOMMISSARY - both the first and
second heirs inherit:(Simultaneously, insofar
as the right to succeed is concerned; and
successively, insofar as the enjoyment and
possession of the property are concerned.)
Purpose of Substitution
Substitution was devised in order to:
a. prevent property from falling into the ownership of
people not desired by the testator.
b. Prevent effects of intestate succession.
c. to allow the testator greater freedom to help or reward
those who by reason of services rendered to the testator,
are more worthy of his affection and deserving of his
bounty than intestate heirs
Nature of Substitution

1. Substitution obtains only in testate succession, hence, there
is no substitution in intestate succession;
2. It is a consequence of the principle of freedom of disposition
which is recognized in favor of the testator;
3. It is nothing more than a subsidiary or secondary institution
of a second or subsequent heir; hence, Section 2 on Institution
of Heir also applies except insofar as its provisions may be
modified by those on substitution;
4. It is really a conditional institution, involving as it does a
suspensive conditional institution for the substitute heir; hence,
the provisions on conditional institution are also suppletorily
applicable;
5. It may refer only to the free portion because the law
prohibits the testator from imposing any burden, encumbrance,
condition or substitution of any kind whatsoever on the
legitime (Art. 872, 904, par. 2);
6. It has preference, after institution of heir(Art. 840), over
right of representation (Art. 970), right of accretion (Art. 1015)
and intestacy (Art. 960)
Art. 858. - KINDS OF SUBSTITUTION
Substitution of heirs may be:
(1) Simple or common; (ART.859)
(2) Brief or compendious; (ART.860)
(3) Reciprocal; or (ART. 861)
(4) Fideicommissary (ART.863)
Art. 859. - SIMPLE SUBSTITUTION***
The testator may designate one or more persons to substitute the
heir or heirs instituted in case such heir heirs should die before him,
or should not wish, or should be incapacitated to accept the
inheritance.
A simple substitution, without a statement of the cases to which it
refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided.
 The substitute enters into inheritance not as heir
succeeding the original heir but as an heir of testator.
SIMPLE SUBSTITUTION - second heir takes the inheritance in
default of the first heir by reason of incapacity, predecease, or
renunciation
1ST. PAR: EXPRESS SUBSTITUTION
1. Predecease
Page 17
2. Renunciation
3. Incapacity
EX. The testatrix instituted an heiress and ordered that the
children of the heiress would substitute the heiress should said
heiress die after the testatrix. Is this a case of simple
substitution?
ANS: No, this is not a case of simple substitution. In simple
substitution of this nature, the heir or heiress dies before, and not
after the testator or testatrix.
Testator T institutes A as his heir and if A should predecease him, T
designates S as a substitute to take A's place.
ANS: Here, the substitution shall only take place upon A's death. If A
should repudiate the inheritance or becomes incapacitated, S cannot
substitute.
2ND PAR: ABSENCE OF STATEMENT OF CASES
 comprise of the three mentioned in the preceding par.
Unless, testator provides otherwise.
EX: Testator T institutes A as his heir and if A should not succeed him, T
designates S as a substitute to take A's place.
ANS: Here, the designation is made in general terms, hence, there will be
substitution whether T predeceased, T repudiates the inheritance or becomes
incapacitated to succeed.
T made a will instituting X as heir, and Y, as substitute. T died on Jan. 5,
2004. X renounced the inheritance on Jan. 7, 2004. Y died on Jan. 8, 2004.
Can Z, the child of Y get anything from T’s estate?
ANS.: Yes, because this is not a case of predecease on the part of Y, who after
all survived the testator, and immediately inherited from T, subject to the
condition of X’s non-inheritance. Since the condition was fulfilled there is no
doubt that Y inherited. True, Y is now dead, but his son Z can share in T’s
estate, not as an heir of T, but merely to get the share already inherited by his
father Y.
Instances When the Substitution is Extinguished
when the substitute: (PIR-ARV)
1. Predeceases the testator
2. Incapacitated
3. Renounces the inheritance
4. Institution of heir is Annulled (say by preterition)
5. Institution or the substitution is Revoked by the testator
6. will is Void or disallowed or revoked
EX: T made a will instituting X as heir, and Y as substitute. In 1998, Y died,
leaving Z, his child. In 2003, T died but X is incapacitated to inherit. Is Z
going to inherit from T?

ANS.: No, because Y may be considered a voluntary heir, and since he
predeceased the testator, he transmits nothing to his own heirs. (See Art. 856,
1st paragraph). In the absence of any other provision in the will, legal
succession will take place.
Art. 860. - BRIEF OR COMPENDIOUS SUBSTITUTION
Two or more persons may be substituted for one
(COMPENDIOUS); and one person for two or more heirs. (BRIEF)
 This Article is really a variation of the simple substitution.
BRIEF - plurality of substitutes
 substitutes will divide equally the inheritance of the
instituted heir
COMPENDIOUS - plurality of instituted heir
 The substitute inherits ONLY if ALL the heirs die ahead
of the testator, renounce the inheritance or become
incapacitated.
 But if only one of the original heirs does not succeed,
the substitute does not acquire his share unless
otherwise provided by the testator.
 In this case, the share of such original heir shall go
to the intestate heirs of the heir who does not inherit
or to the other instituted heirs by right of accretion.
Art. 861. - RECIPROCAL SUBSTITUTION
If heirs instituted in unequal shares should be reciprocally
substituted, the substitute shall acquire the share of the heir who
dies, renounces, or is incapacitated, unless it clearly appears that the
intention of the testator was otherwise.
If there are more than one substitute, they shall have the same share
in the substitution as in the institution.
 the essence of which is that the instituted heirs are made
the substitutes of each other.
 the words “same share” should be interpreted to mean
“same proportionate share.”
 The presumption is that the testator wanted it this
way, otherwise, if their shares were to be absolutely
equal, they would not have been instituted
unequally.
RECIPROCAL SUBSTITUTION - is where all the heirs are
Page 18
constituted as substitute of one another.
T gave A a legacy of P120,000; B, P20,000; C, P40,000. If A predeceases T,
how much of his shares, if any, will go to B and C, by way of
SUBSTITUTION?
ANS.: None, for no substitution was provided for in the will. However, as will
be discussed later, they will inherit by ACCRETION, and it is worthwhile to
note that those who inherit by accretion inherit also in the same proportion
as in the institution (or devise or legacy).
Art. 862. - CHARGES & CONDITIONS UPON IH ARE
APPLICABLE TO SUBSTITUTE
The substitute shall be subject to the same charges and conditions
imposed upon the instituted heir, unless the testator has expressly
provided the contrary, or the charges or conditions are personally
applicable only to the heir instituted.
GR: If the substitute inherits, he must fulfill the conditions
imposed on the original heir.
 the testator intended the substitute to stand on
the same footing as the original heir
EXCPTN:
1. Testator EXPRESSLY provides otherwise in the will; or
2. Charges or conditions imposed are PERSONAL to
original heir
Art. 863. - FIDEICOMMISSARY *****
A fideicommissary substitution by virtue of which the fiduciary or
first heir instituted is entrusted with the obligation to preserve and
to transmit to a second heir the whole or part of the inheritance,
shall be valid and shall take effect,
provided such substitution does not go beyond one degree from the
heir originally instituted, and provided further, that the fiduciary or
first heir and the second heir are living at the time of the death of

the testator.
CHARACTERISTICS:
 Fideicommissary is an indirect substitution where both
heirs inherit one after the other.
 while in the simple substitution only ONE of the heirs
inherits, in the fideicommissary, BOTH inherit.
 The transmission takes place at the time expressly
stated by the testator in his will, or in silence, upon
death of the first heir.
PURPOSE:
 the power to appoint a fideicommissary substitute is a
complement of the freedom of disposition which gives a
powerful stimulus to the accumulation of wealth, and
thus, maintains the tradition and social standing of the
family
REQUISITES: (EFA-SOL-F)***
1. Expressly stated in the will by:
a) naming it as fideicommissary substitution; or
b) By clearly and expressly providing an absolute
obligation to preserve and transmit
2. First heir - fiduciary
3. First heir must be imposed with an absolute obligation,
not conditional, to preserve and transmit to the second
heir, either in whole or part of the inheritance
4. Second heir
5. Second heir must not go beyond one degree from the
fiduciary or originally instituted heir
6. Both first & second heir must be LIVING or at least
CONCEIVED at the time of death of testator
7. Both must be CAPACITATED to succeed
8. Fideicommissary substitution must never burden the
legitime, thus, it can be mposed upon the free portion
only
FIRST HEIR
 almost like a usufructuary, with the right to enjoy the property.
Thus, like a usufructuary, he cannot alienate the property
 implicitly bound to make an inventory to know what properties
he must preserve and transmit.
 entitled to a refund of useful improvements, at least insofar as
an increase in value is concerned.
SECOND HEIR
 most likely a naked owner
Page 19
 Upon transmission to him of the property, full ownership
is consolidated in him.
 inherits not from the first heir but from the testator.
T institutes A as 1st heir, B as second heir. B dies in 1999; T dies in
2012. In 2013, does A inherit?
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS. : Yes, for
while the substitution is not valid, the institution remains valid.
(Art. 868).
Art. 864. - FS MUST NOT BUDEN LEGITIME
A fideicommissary substitution can never burden the legitime.
Art. 865. - EXPRESSLY MADE; OBLIGED TO DELIVER
Every fideicommissary substitution must be expressly made in order
that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the second
heir, without other deductions than those which arise from
legitimate expenses, credits and improvements, save in the case
where the testator has provided otherwise.
Extent of the Inheritance to be Delivered:
 Unless specified, it is understood that the whole property
received by a first heir in a fideicommissary substitution
must be delivered.
Obligations of the Fiduciary (DPI) ******
1. Deliver the inheritance
 the delivery must be made at the time or under the
circumstances stated by the testator, otherwise, it
shall be made at the death of the fiduciary on the
presumption that the intention of the testator is that
the fiduciary, as beneficial owner, should enjoy it
during his lifetime. The inheritance may cover the
whole or only a part of the estate
2. Preserve the inheritance
 this is a duty corollary to his obligation to deliver.
Also implied is the duty not to alienate;
3. Make an inventory of the inheritance
 this is implied from the fact that he has to account
for the property object of the substitution.
 Furthermore, it is necessary to determine whether

the deductions made by him are legitimate or not,
such as expenses, credits and improvements, unless
the testator provides otherwise.
NOTE: The fiduciary is not liable for the loss or deterioration
caused by fortuitous events without his fault. He is not required to
furnish a bond or security.
One implication from the duty “to deliver” is that the first heir must
not ordinarily alienate the property to a stranger. What happens if
he does this?
GR:alienation or registration may still be made subject to the
fdeicommissary substitution.
EXCPTN: If the first heir succeedied in transfering the certificate of
title to under his name and subsequently alienate it to a third person
in good faith and for value.
Moralejo, et al. v. Maquiniano CA, 40 O.G. 227
FACTS: Matea, in her will, gave Benvenuto a parcel of land with the
condition that he must not alienate it but pre- serve it instead for his
children. Matea then died, and Benve- nuto inherited the land.
Benvenuto disregarded the will and sold the land to Catalino who did
not know of the existence of the condition. Afterwards, Benvenuto
died. His children now brought this action to recover the land from
Catalino.
ISSUE: Will the action prosper?
HELD: Yes, the action will prosper in view of the tes- tamentary
reservation in favor of the children. This is true, notwithstanding
Catalino’s good faith, for he acquired merely Benvenuto’s right.
Hence, applying the principle of caveat emptor (let the buyer
beware), we can say that the sale to him was valid, but it was subject
to the testamentary reservation, namely, that upon Benvenuto’s death
his children would be- come full owners of the property.
[NOTE:
(a) While Benvenuto was still alive, it is evident that the children
could not get the property for they would be entitled to it only after
Benvenuto’s death.
(b) If Benvenuto in his lifetime had applied for the reg- istration of
the land, the children’s duty should have been to enter an opposition
thereto, not for the real purpose of opposing, but for the purpose of
having their testamentary right recorded in the Torrens Title. If
no such annotation is made, then an in- nocent purchaser for value
Page 20
would take the property free from all liens and encumbrances, with
the children not possessed of the right to get the land away from
him. This would be true even if the action for recovery is brought
after their father’s death. Their only right then would be to get from
the Assurance Fund of the Torrens System, or to get reimbursement
from their father’s estate.].
Art. 866. - 2ND HEIR’S RIGHT TO SUCCESSION
The second heir shall acquire a right to the succession from the time
of the testator’s death, even though he should die before the
fiduciary. The right of the second heir shall pass to his heirs.
 applies only when all the essential requisites for a
fideicommissary substitution are present,
 In other words, while it is permissible for the second heir
to predecease the first heir, neither must predecease the
testator
 Their rights become vested upon the death of the
testator: 1st heir: Usufruactuary; 2nd heir: naked
owner
 Hence, the second heir can sell the property even if
he still cannot enjoy the property because the
usufruct still belongs to the 1st heir. But the buyer
is also subject to the right of the first heir to enjoy
the property.
 Where the fideicommissary substitution is conditional,
the right of the fideicommissary is merely inchoate. His
death before the condition has been fulfilled, prevents the
acquisition by him of any right to the substitution, and
consequently, he would have no right to transmit to his
heirs.
Art. 867. - VOID CONDITIONS
The following shall not take effect:
(1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or imposing upon
the fiduciary the absolute obligation to deliver the property to a
second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and
even a temporary one, beyond the limit fixed in Article 863;
(3) Those which impose upon the heir the charge of paying to

various persons successively, beyond the limit prescribed in Article
863, a certain income or pension;
(4) Those which leave to a person the whole or part of the hereditary
property in order that he may apply or invest the same according to
secret instructions communicated to him by the testator.
PERPETUAL
 valid only for 20 yrs
TEMPORARY
GR: maximum prohibition to alienate is only 20 years and must not
go beyond 1 degree under ART 863
EXCPTN: Prohibition to alienate for more than 20 years may occur
in fideicommissary substitution (Ex. 1st heir lived for 50 yrs)
T instituted A as his only heir, but prohibited him and all who may
subsequently inherit from him to dispose of the property for a period of
twenty years. T then died. A is bound not to alienate for 20 years. But A dies
3 years after T. B, the son of A then inherits the property from A. Is B still
bound to respect the temporary prohibition?
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS. : Yes, for the next
17 years.
Suppose B dies after 10 years more, and the property is in turn inherited by
C who is his son, is C bound not to alienate for the remaining 7 years?
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS. : No more, because
although a total of 13 years only has lapsed, still to impose the prohibition for
the remaining 7 years on C would be beyond the limits of Art. 863, since C is
not a first degree relative of A who originally inherited the property.
NOTE:
 Even if we construe one degree as one transfer, the same
conclusion is reached, since here, the second transferee, C,
should no longer be bound.
 The purpose of the law is to prevent a case worse than the
entailment in a fideicommissary substitution.
Art. 868. - NULLITY OF FS DOES NOT PREJUDICE 1ST
HEIR
The nullity of the fideicommissary substitution does not prejudice
the validity of the institution of the heirs first designated; the
fideicommissary clause shall simply be considered as not written.
 It becomes a simple substitution
Art. 869. - GRANT OF USUFRUCT; ,SUCCESSIVE
Page 21
ENJOYMENT OF USUFRUCT ART. 863 APPLIES
A provision whereby the testator leaves to a person the whole or
part of the inheritance, and to another the usufruct, shall be valid.
If he gives the usufruct to various persons, not simultaneously, but
successively, the provisions of Article 863 shall apply.
 If given to various persons successively, as provided in
ART. 863, it cannot go beyond one degree
 usufruct is ordinarily extinguished by the death of the
usufructuary, unless the contrary is provided in the will.
May a usufruct be granted to various persons simultaneously?
 YES. In such a case, said persons would be co- owners
of the usufruct and of the usufructuary rights.
 Art. 564, CC distinctly provides that “usufruct may be
constituted on the whole or part of the fruits of the
thing, in favor of one or more persons, simultaneously
or successively, and in every case, from or to a certain
day, purely or conditionally.”
Art. 870. - PROHIBITION ON ALIENATION MORE THAN 20
YRS IS VOID
The dispositions of the testator declaring all or part of the
estate inalienable for more than twenty years are void.
 Cannot apply to legitime & if there is a
fideicommissary substitution, for this must be
governed by Art. 867(2).
Section 4
CONDITIONAL TESTAMENTARY DISPOSITIONS AND
TESTAMENTARY DISPOSITIONS WlTH A TERM
Art. 871. - KINDS OF INSTITUTION
The institution of an heir may be made conditionally, or
for a certain purpose or cause.
 Conditions to affect the disposition must appear in the
language of the will, and cannot be presumed.
 Parol evidence to prove the existence of oral or other
conditions cannot be allowed. But may be given
effect by incorporation of reference

 In case of doubt, it shall be resolved against the
existence of condition, in consonance with the nature
of testamentary disposition as generally acts of
liberality.
CONDITION - future or uncertain event, or a past event unknown to
the parties, upon which the performance of an obligation depends
(Art. 1179)
 Its most distinct characteristic is “uncertainty”
KINDS OF INSTITUTION:
SIMPLE / PURE INSTITUTION - that which takes effect
immediately and automatically upon death of the testator without any
charge or condition
CONDITIONAL - a designation of some future and uncertain event
upon which the validity of an accepted obligation or testamentary
provision depends.
WITH A TERM - A day certain is understood to be that which must
necessarily come, although it may not be known when. (Art. 1193,
3rd paragraph). As applied to succession, it is the day or time when
the effect of an institution of the heir is to begin or cease.
 Under Art. 855, CC— “the designation of the day or time
when the effects of the institution of an heir shall
commence or cease,” is allowed.
MODAL - when the institution of an heir is made, for a certain
purpose or cause. (Art. 871) or those provided in ART. 882.
 “modo” also signifies every onerous disposition by which
the obligor imposed upon another and thus limited his
promise,
Art. 872. - NO CHARGE, CONDITION, OR SUBSTITUTION
UPON LEGITIME
The testator cannot impose any charge, condition, or substitution
whatsoever upon the legitimes prescribed in this Code. Should he do
Page 22
so, the same shall be considered as not imposed.
GR: ART. 873
EXCPTN: testator can validly impose a prohibition against the
partition of the legitime, for a period not exceeding twenty years.
 Art. 1083 provides: “Every co-heir has a right to demand
the division of the estate, unless the testator should have
expressly forbidden its partition, in which case the
period of indivision shall not exceed twenty years as
provided in Art. 494.
Art. 873. - IMPOSSIBLE OR ILLEGAL CONDITION
Impossible conditions and those contrary to law or good customs
shall be considered as not imposed and shall in no manner prejudice
the heir, even if the testator should otherwise provide.
EFFECT OF IMPOSSIBLE CONDITIONS
 They are considered as not imposed but the validity of the
institution of heir and the testamentary disposition is
maintained, even if the testator should otherwise provide.
Without the condition, the effect is that of pure
institution.
REASONS FOR THE RULE UNDER ART. 873:
1. Impossible condition is considered as a mere error, oversight
or whim on the part of the testator; hence, it would be unjust to
prejudice the heir, devisee or legatee because of it;
2. The will is made by the testator with the intention to benefit
persons worthy of his generosity; hence, the impossible
condition should not be considered important enough to
frustrate the plain desire and intent of the testator;
AMBIGUOUS CONDITIONS
 If the condition is ambiguous, its meaning should be
ascertained following the rules of interpretation of testamentary
dispositions.
 However, if still its meaning cannot be ascertained, or it is
contradictory or unintelligible, it will be considered as not
imposed and regarded as an impossible condition under Art.
873.
NO-CONTEST AND FORFEITURE PROVISION
 A provision in the will states "that should any heirs, devisees
or legatees contest or oppose its probate, the latter shall lose

his or her right to receive any inheritance or benefit under my
will, which shall be forfeited in favor of the other heirs,
devisees or legatees"
Santos Vs. Buenaventura
Where the heir, devisee or legatee had acted in good faith in
opposing the probate of the will, he should not forfeit his right under
the will in "his desire to know the truth and to protect his rights" in
case it is allowed.
Art. 874. - ABSOLUTE CONDITION NOT TO CONTRACT
FIRST OR SUBSEQUENT MARRIAGE
An absolute condition not to contract a first or subsequent marriage
shall be considered as not written unless such condition has been
imposed on the widow or widower by the deceased spouse, or by the
latter’s ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some
personal prestation may be devised or bequeathed to any person for
the time during which he or she should remain unmarried or in
widowhood.
ABSOLUTE CONDITION NOT TO MARRY - Void; contrary to
good morals and public policy
ABSOLUTE CONDITION NOT TO RE-MARRY
GR: Void; contrary to morality and public policy.
EXCPTN: When imposed upon widower or widow by:
1. Deceased spouse
2. ascendants or descendants of the deceased spouse
Reason: justified because of sentimental and economic reasons.
RELATIVE PROHIBITION TO MARRY OR RE-MARRY
 prohibition to marry a particular girl, or at a particular
time, or for a number of years
, Art. 877. - CASUAL & MIXED CONDITION
GR: Valid, by implication, and must be complied with unless
impossible or illegal.
EXCPTN: When it becomes so onerous or burdensome
ART. 874, 2nd par: A stopping of a usufruct, allowance, or
personal prestation the moment the heir, devisee, or legatee marries
Page 23
or remarries — is justified since the law allows their giving for the
time during which the person remains unmarried or in widowhood.
Art. 875. - DISPOSITION CAPTATORIA*****
Any disposition made upon the condition that the heir shall make
some provision in his will in favor of the testator or of any other
person shall be void.
 Disposition itself is void, not only the condition, because
it tends to make the making of the will a contractual act.
 It contradicts the nature of testamentary disposition as an
act of liberality of the testator
 Applicable only to wills, not other contracts ex. Deed of
Donation
Art. 876. - POTESTATIVE CONDITIONS
Any purely potestative condition imposed upon an heir must be
fulfilled by him as soon as he learns of the testator’s death.
This rule shall not apply when the condition, already complied with,
cannot be fulfilled again.
 Condition here must be complied, AFTER testator’s
death, unline Art. 877 which may be complied BEFORE
or AFTER t’s death
Potestative condition - is one the fulfillment of which depends purely
on the heir. He must perform it personally. Nobody else must do it
for him.
2nd par:
GR: Art. ART. 876 cannot apply, if the condition already complied
by the heir, is in nature cannot be fulfilled again
EXCPTN: If the condition is susceptible of being complied again,
then the heir must comply
If the condition is casual or mixed, it shall be sufficient if it
happened or be fulfilled at any time before or after the death of the
testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the
will was executed and the testator was unaware thereof, it shall be
deemed as complied with.
 Page 24
of a right. It is sure to happen.
If he had knowledge thereof, the condition shall be considered EX. If Maria dies…
fulfilled only when it is of such a nature that it can no longer exist
or be complied with again. SUSPENSIVE CONDITION - suspends, not merely the
demandability, but even the acquisition itself of the right.
EX. If Maria dies of cancer
CASUAL - depends upon chance and/or upon the will of a third
person
SUSPENSIVE TERM v CONDITION
A gives B a legacy on condition that C wins the lotto.  term is sure to happen, while a condition may or may not
The fulfillment may be either before or after A’s death. happen.
 Suspensive term suspends only demandability of right to
(a) If C had already won the lotto, and A did not know this, the condition is succession, while suspensive condition suspends both
deemed already complied with, and B gets the legacy. (2nd par., Art. 877). demandability and right itself.

If C had already won the lotto, and A knew of this, the condition is deemed EFFECTS OF SUSPENSIVE TERM:
fulfilled only if C again wins first prize. Unless this happens, B cannot get the 1. Acquisition of right not suspended, only its
legacy. demandability.
2. Acquisition not affected by predeceased - being a
MIXED - depends partly both upon the will of the heir himself AND vested right, it is no longer affected even if such heir dies
upon chance and/or the will of a third person. before arrival of the term.
3. Administration required pending the term’s arrival -
A gives B a legacy on condition that B become a lawyer. The condition may be instituted heir may only demand the inheritance once
fulfilled either before or after the death of A. term arrives
(a) If B is already a lawyer, and A did not know this, the condition is deemed
complied with and B gets the legacy. (2nd par., Art. 877). Art. 879. - NEGATIVE POTESTATIVE CONDITION; CAUSIA
(b) If B is already a lawyer, and A knew this, B gets the legacy just the same, MUCIANA*****
because the condition is of such a nature that it can no longer be complied If the potestative condition imposed upon the heir is negative, or
with again. (3rd par., Art. 877). consists in not doing or not giving something, he shall comply by
giving a security that he will not do or give that which has been
prohibited by the testator, and that in case of contravention he will
Effect of Substantial or Constructive Compliance return whatever he may have received, together with its fruits
 POTESTATIVE - sufficient and interest.
 CASUAL - there must be actual or strict compliance
 MIXED - constructive compliance is sufficient when  Art. 879 refers to a condition, not term, and if the
non-fulfillment is caused by a person interested in the condition is unfulfilled, it is as if no rights were ever
non-fulfillment. acquired.

Caucion Muciana - is the bond or security that should be given by

Art. 878. - SUSPENSIVE TERM
A disposition with a suspensive term does not prevent the instituted
heir from acquiring his rights and transmitting them to his heirs
even before the arrival of the term.
TERM - any future and certain event upon the arrival of which the
validity or efficacy of testamentary isposition depends
SUSPENSIVE TERM - one that merely suspends the demandability
the instituted heir imposed with negative potestative condition in
favor of those who would get the property if the condition be not
complied with (like the intestate heirs or the substitute, etc.).
The favored persons are naturally the ones who can demand the
constitution of the security.
EXCEPTION FROM CAUCION MUCIANA:
 If the subject of inheritance is Allowance, Usufruct or

Personal prestation.
 In case of contravention, the heir is not required to
return what he received and the fruits thereof. Art.
874 2nd, is applied by analogy.
EFFECT OF NEGATIVE POTESTATIVE CONDITION:
1. ) RIGHT OF THE HEIR TO RECEIVE INHERITANCE
 The heir instituted under such a condition has a right to receive
his share of the inheritance upon the death of the testator. He
loses his right only when he violates the condition. In such
case, he must return the property received together with the
fruits and interests.
2. ) OBLIGATION OF THE HEIR TO GIVE SECURITY
 Inasmuch as the negative potestative condition is a continuing
one, and there is always a possibility that the heir may violate
the condition, and because of his insolvency, the person or
persons who will succeed upon such violation, may be
deprived of the hereditary property, thus the law requires
the heir or devisee must give security.
3. ) RIGHT OF AFFECTED PARTIES TO DEMAND
SECURITY
 The security may be demanded by those whom the property
will go in case of violation of the condition, more specifically,
the substitute, or a co-heir with a right of accretion, or intestate
heirs. If the heir fails to give the security required, the property
shall be placed under administration (Art. 880, par. 2)
Art. 880. - SUSPENSIVE CONDITION PLACED UNDER
ADMINISTRATION
If the heir be instituted under a suspensive condition or term, the
estate shall be placed under administration until the condition is
fulfilled, or until it becomes certain that it cannot be fulfilled, or until
the arrival of the term.
The same shall be done if the heir does not give the security required
in the preceding article.
 Art. 880 should be applied only to suspensive
conditions and to negative potestative
condition
Administration under a ART 880
The estate shall be placed under administration in the
following cases:
Page 25
1) Suspensive Condition - the heir, devisee or legatee
acquires no right until the condition is fulfilled. The
administration shall continue until the condition is fulfilled
or it becomes certain that it cannot be fulfilled;
 in the latter case, the administration of the
estate will also cease, but this time, instead
of being given to the instituted heir; it will
be given to the legal heirs.
2) Negative Potestative Condition - when the heir does
not give the security that he will not do or give that which
has been prohibited by the testator (Art. 879), the
administration shall continue until the security is given.
ART 880 v ART 885
Art. 881. - APPOINTMENT OF ADMINISTRATOR
The appointment of the administrator of the estate mentioned in the
preceding article, as well as the man- ner of the administration and
the rights and obligations of the administrator shall be governed by
the Rules of Court.
EXCPTN:
1. EXTRAJUDICIAL SETTLEMENT - If thre is no will
and no debt and all of the heirs are of legal age or if
minors, are represented by their judicial guardian or
representative; extrajudicial settlement or administration
shall be published in a newspaper of general circulatin
 If there is only one heir (or one legatee or one
devisee), he may adjudicate to himself the
entire estate by means of an affidavit filed in
the office of the register of dee
2. SUMMARY SETTLEMENT OF ESTATE - if the
gross value of the estate does not exceed 10k
 10k is jurisdictional

ORDER OF PREFERENCE IN ADMINISTRATION:
a) Surviving spouse or nearest kin competent and willing to
serve
b) Principal creditor
c) Other person as the court may select
Art. 882. - MODAL INSTITUTION
The statement of the object of the institution, or the application of
the property left by the testator, or the charge imposed by him, shall
not be considered as a condition unless it appears that such was his
intention.
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.
 Mode is not a condition; one practical difference can be
pointed out, namely, that in a modal institution, the
inheritance can be immediately demanded, provided that
security is given
MODAL INSTITUTION - is that which the testator has statement
in his will any of the following:
1. Object of institution
2. Application of the property
3. Charge imposed by the testator
EFFECT OF MODAL INSTITUTION:
1. Instituted heir may immediately claim the property
 condition’ suspends but does not obligate; the
‘mode’ obligates but does not suspend
 for he who inherits with a mode is
already an heir; one who inherits
conditionally is not yet an heir).”
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2. But he must give security for compliance of testator’s
wishes
 The security may be demanded by the legal
heirs or those who will benefit from non-
compliance by the instituted heir
3. Non-compliance with the mode operates as negative
resolutory, whereby instituted heir is required to return
indeed anything he may have received together with its
fruits and interest, otherwise, the security will be
forfeited.
4. If exact compliance is not possible, it most be complied
in a manner most analogous and in conformity with
testator’s wishes.
RULES IN CASE OF DOUBT
 As between mode and condition, it must be understood as
mode
 As between, mode and statement or expression, it must
be interpreted in the latter sense, since it is less
burdensome
This is in consonance with the principle of testamentary
disposition as an act of liberality
Art. 883. - SUBSTANTIAL COMPLIANCE or CONSTRUCTIVE
FULFILLMENT
When without the fault of the heir, an institution referred to in the
preceding article cannot take effect in the exact manner stated by
the testator, it shall be complied with in a manner most analogous
to and in conformity with his wishes.
If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with.
 1st par. may apply to Modal Institution
 2nd par. may apply to both mode or SUSPENSIVE
condition
 When there is substantial or constructive compliance, the
heir is not obliged to return anything
Art. 884. - SUPPLETORY FORCE OF RULES ON CONDITIONAL
OBLIGATIONS
Conditions imposed by the testator upon the heirs shall be governed
by the rules established for condtional obligations in all matters not
provided for by this Section.

Art. 885. - DESIGNATION OF THE DAY OR TIME
The designation of the day or time when the effects of the
institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the
succession until the arrival of the period or its expiration.
But in the first case he shall not enter into possession of the
property until after having given sufficient security, with the
intervention of the instituted heir.
 This article speaks of SUSPENSIVE OR RESOLUTORY
TERM, unlike ART 880 which speaks of SUSPENSIVE
CONDITION
KINDS OF INSTITUTION WITH A TERM:
1. SUSPENSIVE or ex die
2. RESOLUTORY or in diem
3. BOTH S & R or ex die in diem
SUSPENSIVE or ex die
 Effects begin from a certain day (Ex: “beginning 2008”)
 Acquisition and enjoyment of the property by the instituted heir
shall commence on a day certain after testator’s death, with another
person, usually the legal heir, holding the property during the
interval period between testator’s death until arrival of designated
period
OBLIGATIONS OF LEGAL HEIR WHERE INSTITUTION
SUSPENSIVE
When the institution is suspensive, the legal heir who would have
inherited by intestacy had there been no condition shall be considered
called to succession in the meantime until the arrival of the
suspensive period
1) To preserve the hereditary property
 the legal heir is a usufructuary (not a mere
administrator) during the time of his possession.
 He has the duty to take care of the hereditary
property with the diligence of a good father of the
family or that required by the circumstances.
 Liable for damages suffered by the property due to
his fault or negligence.
2) Not to alienate the property
 because upon the arrival of the suspensive period,
he has to give the property to the instituted heir and
upon delivery to such heir, the security can be
cancelled
3) To make an inventory
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 It is implied from the position of the legal heir
being a usufructuary. An inventory showing the
value of the property is necessary to determine the
sufficiency of the security
4) To give security
 As it is required for the protection of the instituted
heir who will get the property later.
 If the security is not given, such failure will be
considered renunciation, in which case, the next
legal heir in the order of intestate succession will be
called.
REASON FOR REQUIREMENT OF SECURITY: Art. 885 is
explicit that legal heir under suspensive term shall give security
before he could enter into possession of the inheritance.
EXCPTN: the State is the legal heir
EX.: 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 un- til after he has given sufficient security. The
security must be approved and considered suitable by C, the instituted heir.
RESOLUTORY or in diem
 effects cease on a certain day (Ex: “up to 2008”)
 Enjoyment of the property by the instituted heir shall
commence upon testator’s death until the expiration of
the designated period when another shall succeed him.
 Basically, the obligation of the interim heir is the same
as legal heir under suspensive, except that he is not
required to give security.
BOTH S AND R or ex die in diem
 from a certain day to a certain day (Ex- ample:
“beginning 2008 until 2009”)
Instituted heir’s njoyment of the property to commence on the day
certain after the death of the testator and to continue until the
expiration of another designated period, when another shall succeed
him, with somebody else holding the property during the interval
between the death of the testator and the arrival of the first period.
So, the effects of the institution begin from a day certain until they
cease on another day certain (e.g., beginning 2002 until 2004)
Section 5 LEGITIME

Art. 886. -LEGITIME***
Legitime is that part of the testator’s property which he cannot
dispose of because the law has reserved it for certain heirs who are,
therefore, called compulsory heirs.
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Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by
those in Nos. 1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly
proved.

The father or mother of illegitimate children of the three classes

Philippines follow system of legitime. mentioned, shall inherit from them in the manner and to the extent
SYSTEM OF LEGITIME - is the limitation upon the freedom of established by this Code
testator to dispose of his property and To protect the children and the
surviving widow or wid- ower from the unjustified anger or
thoughtlessness of the other spouse
CLASSES OF COMPULSORY HEIRS:
Two (2) CONCEPTS OF LEGIME: 1. Primary compulsory heirs - They inherit all at
1. As property - part of testator’s property reserved by law the same time. They concur with each other.
2. As a right - right of compulsory heir to succeed such i. Legitimate children and their
portion descendants (legitimate)
ii. Surviving spouse
 The testator cannot deprive his compulsory heirs of their iii. Natural children (acknowledge & by
legitime, except in cases expressly specified by law. fiction of law)
 Neither can he impose upon the same any burden, iv. Illegitimate children and their
encumbrance, condition, or substitution of any whatsoever descendants (legitimate or illegitimate)
(Art. 904), except, of course, the condition that the property
will not be divided for a period not exceeding 20 years.
2. Secondary compulsory heirs - They inherit only
in the absence of No. 1 in Art. 887.
TABLE OF LEGITIME i. Legitimate ascendants and parents, in
default of No.1
ii. Illegitimate parents (no other
ascendants)

NOTE: Brothers and sisters are not compulsory heirs

Art. 888. - LEGITIME OF L&D; FREE PORTION****

Art. 887. - KINDS OF CH (2LWA-O)
The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal
fiction;
(5) Other illegitimate children referred to in Article 287.
The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father
and of the mother.
The latter may freely dispose of the remaining half,
subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided.
SHARE TO HEREDITARY ESTATE:
1. LEGITIMATE C&D = 1/2 of hereditary estate of
each of their parents
2. SURVIVING SPOUSE = the property of each
spouse is 1/2 of absolute community or cpg;

hence the spouse gets:
1/2 share from ACP/CPG + share from the estate of
deceased spouse
3. ILLEGITIMATE CHILD = 1/2 of the share of
legitimate child or descendant
NOTE:
 The legitime of Surviving spouse and
Illegitimate child shall be TAKEN FROM THE
FREE PORTION. What remains shall be the Free
disposal.
 COMPUTE FIRST THE LEGITIME before thse
share of the survivinf spouse, provided there are
2 or more legitimate children.
Art. 889. - LEGITIME OF LEGITIMATE PARENTS OR
ASCENDANTS; C&D FREE DISPOSAL
The legitime of legitimate parents or ascendants consists
of one-half of the hereditary estates of their children and
descendants.
The children or descendants may freely dispose of the
other half, subject to the rights of illegitimate children
and of the surviving spouse as hereinafter provide.
 Observes RULE ON PROXIMITY - nearest kin shall
inherit
 Legitimate parents may be excluded only by
No.1
 Illegitimate parents are excluded by Illegitimate
child or descendants
 There is no right of representation in the
ascending line.
 If the one of the legitimate parent
predeceased the child or descendant, the
grandparent cannot represent the former.
 In such case, the 1/2 portion of the HE shall
go to the living parent of deceased.
 Only if both legitimate parents are dead that the
paternal and maternal line gets share from the
estate i.e. 1/2 each - this rule applies only when
the ascendants are all of equal degree, that is, all
are grandparent.
Art. 891. - RESERVA TRONCAL*****
The ascendant who inherits from his descendant any
property which the latter may have acquired by
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gratuitous title from another ascendant, or a brother
or sister, is obliged to reserve such property as he
may have acquired by operation of law for the
benefit of relatives who are within the third degree
and who belong to the line from which said property
came.
PURPOSE: To prevent the the property of the family
from falling into the hand of another family.
CONCEPT: To return the property from where it
originally came from. It is actually a burden, a charge
or a restriction on the legitime of the ascendant.
REQUISITES:
1. Acquired or inherited by gratuitous title by the
descendant from the ascendant or illegitimate
brother or sister (source of origin)
2. The propositus died without legitimate issue or
heir in the direct descending line
3. the other ascendant of the propositus belonging
to another line inherited the property by
operation of law, either intestacy or by legitime
in testamentary succession
4. Relatives within 3rd degree in the direct line
where such property came, counted from the
propositus
THREE (3) TRANSMISSION:
1. First trs: By gratuitous title from Ascendant, or
half brother or sister to propositus
2. Second trans.: by operation of law from
propositus to the other ascendant of another
line
3. Third Trans.: From the reservor to the reservee